Could a Hardeeville council member also serve as Jasper County’s zoning coordinator?

Plain-English summary

A Hardeeville council member asked whether he could also serve as Jasper County's planning and zoning coordinator. The Attorney General concluded that both positions counted as public offices and that holding them together would violate South Carolina's constitutional dual-office rule. Earlier office opinions already treated a city council seat as an office. The remaining question was whether this county coordinator's duties also involved public authority.

The request described a coordinator who administered and enforced the county zoning ordinance, supervised enforcement, and issued permits and certificates for construction or land-use changes. The AG compared those duties with zoning administrator positions addressed in earlier opinions and concluded that the described coordinator position exercised sovereign power. The answer was tied to those duties, rather than merely to the job title.

Currency note

This opinion was issued in 2005. 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

Why did the zoning position count as a public office?
The AG relied on the described authority to enforce zoning rules and issue land-use permits and certificates.

Was the city council position disputed?
No. The opinion said prior office views treated city and town council members as public officers.

Did the letter decide every county planning employee's status?
No. Its conclusion addressed the Jasper County coordinator duties supplied in this request.

Background and statutory framework

The opinion applied the constitutional prohibition on simultaneously holding two offices of honor or profit. It described an officer as someone exercising a portion of the state's sovereign power, then applied that test to the two specified positions.

Citations and references

The opinion discussed Article XVII, Section 1A of the South Carolina Constitution and Sanders v. Belue in defining public office.

Official title

Regarding dual office holding and conflict of interest. Specifically, whether it would violate the dual office holding provision of the South Carolina Constitution to serve simultaneously as a City Councilman for the City of Hardeeville and the Jasper County Planning and Zoning Coordinator.

Requester

The Honorable Edward Moyd, City Councilman, City of Hardeeville

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/september-6-2005/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/05sept-6-Moyd.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
HENRY McMAsTER
A1TORNEY CE.'IERAL

September 6, 2005

The Honorable Edward Moyd
City Councilman, City of Hardeeville
Post Office Box 1055
Hardeeville, South Carolina 29927
Dear Mr. Moyd:
By letter, you request our opinion regarding dual office holding and conflict of interest. Specifically, you ask whether it would violate the dual office holding provision ofthe South Carolina Constitution to serve simultaneously as a City Councilman for the City ofHardeeville and the Jasper County Planning and Zoning Coordinator. Following review of this inquiry, we advise that both of the aforementioned positions are office for purposes of dual office holding. Accordingly, it is our opinion that simultaneous service as a City Councilman for the City of Hardeeville and the Jasper County Planning and Zoning Coordinator would violate the dual office holding provision. 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 ... '' with exceptions specified for an 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 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). Furthermore, "[O]ne who merely perfonns the duties required ofhim under an express contract or otherwise, though such persons themselves be public officers, and though the employment be in or about a public work or business, is a mere employee." Sanders, supra, 78 S.C. at 174. We have advised on numerous occasions that a member of a city or town council would be considered an officer for dual office holding purposes. See, as representative. Ops. S. C. Atty. Gen. , July 19, 2001; April 12, 1998; June 12, 1995, February 4, 1994; July 23, 1993. Therefore, the

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Mr. Moyd
Page2
September 6, 2005

question turns upon whether the position of Jasper County Planning and Zoning Coordinator would likewise be considered an office.

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We have opined that a member of a county or municipal planning and zoning commission holds an office for purposes of dual office holding. See, Ops. S. C. Atty. Gen., July 8, 2003 (Hollywood Planning and Zoning Commission); October 16, 1995 (Gaffney Zoning and Planning Commission); August24, 1992 and April 5, 1990(FlorencePlanningCommission); April 24, 1979 (Anderson Planning and Zoning Commission). Furthermore, it has also been our opinion that a Planning and Zoning Administrator is an office holder for purposes ofdual office holding. See, Ops. S.C. Atty. Gen., May 6, 2005 (Town of Hollywood Planning and Zoning Administrator office holder); April 2, 2002 (Mt. Pleasant Zoning Administrator office holder). In the April 2, 2002 opinion, we found it significant that the position included the power to 'administer and enforce' the provisions of the ordinance. Furthermore, we noted that the Administrator's duties in Mt. Pleasant included the function of a zoning enforcement officer (empowered to administer and enforce the provisions ofthe ordinance with respect to subdivision regulation, zoning code and municipal impact fees). However, we have not as yet addressed the specific question of whether the Jasper County Planning and Zoning Coordinator holds an office for purposes of dual office holding. You have described the position of Jasper County Planning and Zoning Coordinator in your letter as including the following duties:

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[a]dministers the County's zoning ordinance that regulated the use and development ofland within County units [sic], to supervise the enforcement of all provisions of the zoning ordinance, to issue appropriate permits and certificates for all construction or change in use of land, and to perform related professional, administrative and supervisory work as required. Works with broad policy and organizational guidelines and does independent planning and implementation. Reporting progress of major activities through periodic conferences and meetings. Works closely with Planning and Building Department personnel and assists Director of Planning and Building Services. Beginning salary $40,854. Salary based on experience and qualifications The foregoing description of the duties of the Planning and Zoning Coordinator closely resembles the duties of the above-described zoning and planning administrator position. As noted, we have concluded that such position of Zoning Administrator constitutes an office. Accordingly, we advise that the described duties of the Planning and Zoning Coordinator appear to constitute the exercise of sovereignty which would make the position an office for dual office holding purposes.

Mr.Moyd
Page 3
September 6, 2005

Conclusion
It is our opinion that an individual who simultaneously serves as a member of the Hardeeville City Council and as the Jasper County Planning and Zoning Coordinator would violate the dual office holding prohibition.

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Robert D. Cook
Assistant Deputy Attorney General