Did public officials holding ex officio seats on the Walterboro-Colleton Airport Commission violate South Carolina’s dual-office ban?

Plain-English summary

A senator asked whether five Walterboro and Colleton County officials could simultaneously serve on their joint airport commission despite South Carolina's dual-office prohibition. The Attorney General said their service would not violate the prohibition because the commission duties were attached to their existing offices. The 1993 act expressly made the mayor, county-council chair, treasurer and auditor ex officio members. Although it did not use that label for the Walterboro council member elected by the council, the AG said that member also served by virtue of council office.

The opinion relied on a South Carolina Supreme Court explanation that the dual-office rule generally did not apply to duties added by law to an existing office, including suitable ex officio service on a joint governmental board.

Currency note

This opinion was issued in 1998. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did the airport seats count as separate offices barred by the constitution?
A: The AG said no in this arrangement. The named officials served on the commission by virtue of their existing positions.

Q: What about the city-council member chosen by the council?
A: The opinion treated that fifth seat as ex officio too, because the person had to be a Walterboro council member to serve.

Q: Did the 1993 act expressly call every seat ex officio?
A: No. It used that designation for the mayor and three county officials; the AG reached the same conclusion for the elected council-member seat by interpreting its connection to council office.

Background and statutory framework

The official archive also has an earlier PDF dated September 9, 1998 giving the same answer to Senator Grooms. The later PDF is the reviewed version reproduced here. The opinion quoted the airport commission's membership provision and Article XVII, Section IA's dual-office rule. It then applied the ex officio principle discussed in Ashmore v. Greater Greenville Sewer District to the five specified positions. Its answer concerned the membership structure presented, not every possible airport-board appointment.

Citations and references

• Article XVII, Section IA of the South Carolina Constitution, the dual-office provision quoted in the opinion.
• Ashmore v. Greater Greenville Sewer District, 211 S.C. 77, 44 S.E.2d 88 (1947), quoted for ex officio service.

Official title

Concerning whether a member of the Walterboro/Colleton Airport Commission violates the dual office holding prohibition when the commission is composed of the following five members: Walterboro Mayor, Walterboro City Council member, Colleton County Council member, Colleton County Auditor, Colleton County treasurer serving ex officio?

Requester

The Honorable Larry Grooms, Senator, District No. 37

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/september-28-1998/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/12/98sept28grooms.pdf

Original opinion text

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The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLES M. CONDON
ATTORNEY GENERAL

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September 28, 1998

The Honorable Lany Grooms
Senator, District No. 37
P.O. Box 355
Bonneau, South Carolina 29431
Dear Senator Grooms:
Your opinion request has been forwarded to me for reply. You have asked the following question: Does serving on the Walterboro/Colleton Airport Commission violate the dual office holding prohibition when the commission is composed of the following five members: Walterboro Mayor, Walterboro City Council member, Colleton County Council member, Colleton County Auditor, Colleton County Treasurer serving ex officio? The Walterboro-Colleton County Airport Commission was created by Act No. 584 of 1946. The composition of the Commission was set forth in Section 1 of the Act. By Act No. 206of1993, the General Assembly amended Section 1 to change the composition of the commission. The amendment provides in pertinent part as follows: The commission shall consist of five members who are the mayor of Walterboro, the chairman of the county council of Colleton County, the treasurer of Colleton County, and the auditor of Colleton County, the membership on the commission being held ex officio by the abovementioned officers. The remaining member must be a member of the Walterboro City Council to be elected by the council. Article XVII, Section IA of the State Constitution provides that "no person may hold two offices of honor or profit at the same time ... ," with exceptions specified for an

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REMBERT

c. DENNIS BUILDING

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POST OFFICE Box 11549

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COLL'!l<IBIA, S.C. 29211-1549

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TELEPHONE: 803-734-3970

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FACSIMILE: 803-253-6283

The Honorable Larry Grooms
Page 2
September 28, 1998
officer in the militia, member of a lawfully and regularly organized fire department,
constable, or notary public. For this provision to be contravened, a person concurrently
must hold two public offices which have duties involving an exercise of some portion of
the sovereign power of the State. Sanders v. Belue, 78 S.C. 171, 58 S.E. 762 (1907).
Other relevant considerations are whether statutes, or other such authority, establish the
position, prescribe its duties or salary, or require qualifications or an oath for the position.
State v. Crenshaw, 274 S.C. 475, 266 S.E.2d 61 (1980).

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While the constitution prohibits dual office holding, such prohibition does not
generally apply when one of the offices is held ex officio. The phrase ex officio is
defined as "[f]rom office; by virtue of the office" or "[f]rom office; by virtue of office;
officially. A term applied to an authority derived from official character merely, not
expressly conferred upon the individual, but rather annexed to the official position."
Lobrano v. Police Jury of Parish of Plaquemines, 150 La. 14, 90 So. 423 (1921). In
Ashmore v. Greater Greenville Sewer District, 211 S.C. 77, 44 S.E.2d 88 (1947), the
South Carolina Supreme Court commented extensively on ex officio memberships :
The rule here enforced with respect to double or dual office holding
in violation of the constitution is not applicable to those officers upon whom
other duties relating to their respective offices are placed by law. A
common example is ex officio membership upon a board or commission of
the unit of government which the officer serves in his official capacity, and
the functions of the board or commission are related to the duties of the
office. Ex officio means "by virtue of his office." ... Similar observation
may be made with respect to ex officio membership upon a governing
board, commission or the like of an agency or institution in which the unit
of government of the office has only a part or joint ownership or
management. In mind as an example is an airport operated by two or more
units of government. A governing board of it might be properly created by
appointment ex officio of officers of the separate governmental units whose
duties of their respective officers have reasonable relation to their functions
ex officio ....
Ashmore, 211 S.C. at 92.
As you can see, Act No. 206 of 1993 specifically provides that the mayor of
Walterboro, the chairman of the county council of Colleton County, the treasurer of
Colleton County and the auditor of Colleton County all hold their membership on the
Airport Commission ex officio. The Act does not specifically accord the fifth member
of the Airport Commission, a member of the Walterboro City Council to be elected by

The Honorable Larry Grooms
Page 3
September 28, 1998

the council, with the ex officio designation. However, as previously stated, ex officio
means "by virtue of his office." Here, the member of the Walterboro City Council would
serve on the Airport Commission by virtue of his position on City Council. Therefore,
such an individual would serve on the Airport Commission ex officio.

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Based on the foregoing, the dual office holding prohibitions of the State
Constitution would not be violated ifthe mayor of Walterboro, the chairman of the county
council of Colleton County, the treasurer of Colleton County, the auditor of Colleton
County, and a member of the Walterboro City Council to be elected by the council
simultaneously serve on the Airport Commission. The reason for such a conclusion is that
these individuals serve on the Airport Commission by virtue of their other offices or ex
officio. As stated in Ashmore, supra: "[t]he rule here enforced with respect to double or
dual office holding in violation of the constitution is not applicable to those officers upon
whom other duties relating to their respective offices are placed by law."
With kindest regards, I remain
Very truly yours,

/4Jl(j
Paul M. Koch
Assistant Attorney General
REVIEWED AND APPROVED BY:

~b C. Williams, III
Deputy Attorney General