Could one person serve on both Gaffney’s zoning appeals board and the Cherokee County school board?

Plain-English summary

The Attorney General concluded that one person could not simultaneously serve on Gaffney's board of zoning appeals and the Cherokee County school board. The opinion treated both seats as public offices because each involved continuing duties and an exercise of the state's sovereign power. Holding both therefore conflicted with the South Carolina Constitution's dual-office provision.

The opinion relied on earlier Attorney General analyses of zoning appeals boards and county school boards. It did not depend on whether either seat was full time or paid.

Currency note

This opinion was issued in 2010. 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: Was a zoning appeals board seat a public office under the opinion? A: Yes. The Attorney General applied prior opinions on municipal and county zoning appeals boards to Gaffney's board.

Q: Was a county school board seat also a public office?
A: Yes. The opinion relied on prior analyses of county school boards and treated the Cherokee County seat as an office.

Q: Could the same person hold both seats at once?
A: The 2010 opinion said no; simultaneous service would violate the state constitutional prohibition on dual office holding.

Background and statutory framework

Gaffney's city administrator asked whether service on the city zoning appeals board could overlap with service on the county school board. The opinion applied Article XVII, Section 1A of the South Carolina Constitution and its public-office test to each position.

Citations and references

The opinion discussed Article XVII, Section 1A and cited Sanders v. Belue and State v. Crenshaw for the public-office test. The original text appears below.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/september-3-2010/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/taylor-j-r-os-9119-9-3-10-dual-office-holding.pdf

Original opinion text

H ENRY M CM ASTER
A:rroRNEY GENERAL

September 3, 20 I 0

Mr. James R. Taylor
City Administrator
PO Box 2109
Gaffney, SC 29342
Dear Mr. Taylor:
We received your Jetter requesting an opinion of this Office concerning dual office holding. You asked whether "a member of Gaffney' s Board of Zoning Appeals" can also serve on "the Cherokee County School Board." This opinion will address prior opinions of this Office, relevant statutes and easelaw to detennine if serving on the board of zoning and school board would constitute a violation of the dual office holding provisions of the South Carolina Constitution.

Law/Analysis
Article XVII, Section IA of the South Carolina Constitution provides that "No person may hold two offices of honor or profit at the same time, but any person holding another office may at the same time be an officer in the militia, member of a lawfuJly and regularly organized fire department, constable, or a 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). "One who is charged bylaw with . duties involving an exercise of some part of the sovereign power, either small or great, in the perfonnance of which the public is concerned, and which are continuing, and not occasional or intermittent, is a public officer." Id., 58 S.E. 762, 763. Other relevant considerations are whether statutes, or other such authority, establish the position, prescribe its tenure, 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). On numerous occasions, we have opined that a position on a city or county board of zoning appeals constitutes an office for purposes of dual office holding. Ops. S.C. Atty. Gen., January 29, 2007 (Summerville' s Zoning Board of Appeals); November 8, 2006; August 2, 2006 (City of Conway Zoning Board of Appeals); March 16, 1999 (City of North Myrtle Beach Zoning Appeals Board); May 2, 1977 (City of Greenville Zoning Appeals Board). In each ofthese opinions, we found service on these boards to be an office within the meaning ofArticle XVII, Section IA ofthe South Carolina

R EM!lERT

c. D ENNlS B UILDING • POST O FFICE B ox U 549 • COLUMB IA, SC 29211-1549 • TuUWHONE 803-734-3970 • FACSIMILE 803-253-6283

Mr. Taylor
Page2
September 3, 2010

Constitution. Id. Although, we have not particularly dealt with a position on Gaffuey's Zoning Board of Appeals, in keeping with our prior opinions, we opine that such a position is an office. Finding a membership on Gaffuey's Zoning Board of Appeals to be an office, we next must determine whether a position as a school board member is an office for purposes of dual office holding. On numerous occasions, we have also opined that a position on a county school board constitutes an office for purposes of dual office holding. Ops. S.C. Atty. Gen., December 12, 2007; June 16, 2006; January 29, 1997; July 31, 1992. Therefore, it is our opinion that serving as a member of the Cherokee County School Board would constitute an office within the meaning of Article XVII, Section IA of the South Carolina Constitution. Conclusion Consistent with prior opinions, it is the opinion of this Office that simultaneously holding the positions ofGaffuey Board ofZoning Appeals member and Cherokee County School Board member would constitute dual office holding in contravention of Article XVII, Section IA of the South Carolina Constitution. Each position has continuing duties involving an exercise of some portion of the sovereign power of the State. Sincerely, Henry McMaster Attorney General

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By:

REVIEWED AND APPROVED BY:

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Robert D. Cook
Deputy Attorney General

Leigha Blackwell
Assistant Attorney General