Can one person serve on the Cherokee County Council and also hold Cherokee County's seat on the Spartanburg County Commission for Higher Education?

Plain-English summary

The South Carolina Attorney General concluded that one person may not serve at the same time on the Cherokee County Council and as Cherokee County's member of the Spartanburg County Commission for Higher Education. The State Constitution generally bars a person from holding two offices of honor or profit simultaneously.

A position counts as a public office when the law gives it continuing duties that exercise some part of sovereign power for the public. Prior AG opinions had already treated Cherokee County Council membership as an office and had concluded that service on the Spartanburg County higher-education commission most likely is an office.

The Legislature added members from Cherokee and Greenville Counties to the commission in 1995. The AG found that this did not change the office analysis. The additional members are appointed through a governmental process, serve the same type of term, receive the same compensation, and exercise the commission's existing powers, including establishing higher-education facilities, accepting funds, entering agreements, and exercising eminent domain.

What this means for you

Cherokee County Council members

The opinion treats county council membership as a public office for the constitutional prohibition. A sitting council member therefore cannot also occupy Cherokee County's seat on the Spartanburg County Commission for Higher Education.

Higher-education commission members

The commission position is an office because its members exercise continuing statutory powers for public purposes. The opinion says the conclusion applies to the added Cherokee and Greenville County members as well as the original Spartanburg County members.

Legislative delegations and appointment officials

Residency and a different recommending delegation do not make the added county seats non-offices. The members are appointed by the Governor following the statutory recommendation process and carry the commission's same powers and duties.

Local-government and ethics attorneys

The opinion applies the established public-office test: source of appointment, statutory creation, defined duties and tenure, representation of the sovereign, and exercise of governmental power. It identifies eminent domain as a particularly strong indicator for the higher-education commission.

Common questions

Q: What does South Carolina's dual-office-holding rule prohibit?
A: Article XVII, section 1A generally prohibits one person from holding two offices of honor or profit at the same time, subject to the exceptions listed in the Constitution.

Q: Is a Cherokee County Council seat a public office?
A: Yes. The opinion relies on an earlier AG opinion that treated county council membership as an office for dual-office-holding purposes.

Q: Why is the higher-education commission seat a public office?
A: The commission was created by legislation, its members are appointed through a statutory process, and they exercise governmental powers for higher education, including agreements, fundraising, facilities work, and eminent domain.

Q: Did adding a Cherokee County member in 1995 change the result?
A: No. The opinion found that the added member has the same term, compensation arrangement, powers, and duties as other commission members. The main difference is residency and the recommending delegation.

Q: Can one person hold both positions if neither job pays a salary?
A: No under this opinion. The constitutional test turns on whether each position is a public office, not simply whether the officeholder receives compensation.

Background and statutory framework

Article XVII, section 1A of the South Carolina Constitution states the dual-office-holding prohibition and lists limited exceptions. South Carolina cases define an office by looking for continuing public duties and an exercise of sovereign power conferred by law.

The Spartanburg County Commission for Higher Education was created by Act No. 36 of 1967 and amended by later acts. Its statutory work includes promoting higher education, establishing facilities for college courses, entering agreements, soliciting and accepting funds, appointing an advisory committee, and exercising eminent domain.

Act No. 184 of 1995 added one member from Greenville County and one from Cherokee County. The opinion found no material difference between those members and the original commission members for dual-office-holding purposes.

Citations and references

Constitution and legislation:

• S.C. Const, art. XVII § 1 A
• Act No. 36 of 1967
• Act No. 504 of 1967
• Act No. 202 of 1991
• 1995 S.C. Acts 184

Cases:

• Sanders v. Belue, 78 S.C. 171, 58 S.E. 762 (1907)
• Willis v. Aiken County, 203 S.C. 96, 26 S.E.2d 313 (1943)
• Segars-Andrews v. Judicial Merit Selection Commission, 387 S.C. 109, 691 S.E.2d 453 (2010)
• State v. Crenshaw, 274 S.C. 475, 266 S.E.2d 61 (1980)
• University of S.C. v. Elliott, 248 S.C. 218, 149 S.E.2d 433 (1966)

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/opinion-on-whether-it-would-constitute-dual-office-holding-for-an-individual-to-serve-as-a-member-of-the-cherokee-county-council-and-as-the-cherokee-county-member-of-the-spartanburg-county-commission-for-higher-education/
• Original PDF: https://www.scag.gov/media/ebpcdr01/03312432.pdf

Original opinion text

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GV

Alan Wilson
attorney General

June 13, 2023

The Honorable Harvey S. Peeler, Jr.

PO Box 742
Gaffney, SC 29342

Dear Senator Peeler:
You have requested an opinion of this Office regarding whether it would constitute dual office
holding for an individual to serve as a member of the Cherokee County Council and as the
Cherokee County member of the Spartanburg County Commission for Higher Education.
LAW/ANALYSIS

The South Carolina Constitution provides for dual office holding:

[n]o 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 lawfully and regularly
organized fire department, constable, or a notary public .... The
limitation above set forth does not prohibit any officeholder from
being a delegate to a constitutional convention.

S.C. Const, art. XVII § 1 A.

The South Carolina Supreme Court explains that an “office” for dual office holding purposes is:

“[o]ne who is charged by law with duties involving an exercise of
some part of the sovereign power, either small or great, in the
performance of which the public is concerned, and which are
continuing, and not occasional or intermittent, is a public officer.”
Sanders v. Belue, 78 S.C. 171, 174, 58 S.E. 762, 763 (1907). “In
considering whether a particular position is an office in the
C. Dennis Building

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The Honorable Harvey S. Peeler, Jr.
Page 2

June 13, 2023

constitutional sense, it must be demonstrated that “[t]he power of
appointment comes from the state, the authority is derived from the
law, and the duties are exercised for the benefit of the public.”
Willis v. Aiken County, 203 S.C. 96, 103 26 S.E.2d 313, 316

(1943). “The powers conferred and the duties to be discharged
with regard to a public office must be defined, directly or

impliedly, by the legislature or through legislative authority ...”
63 C Am Jur.2d Public Officers and Employees § 5 (2009).

Segars-Andrews v. Judicial Merit Selection Commission, 387 S.C. 109, 691 S.E.2d453 (2010).

In State v. Crenshaw, 274 S.C. 475, 478, 266 S.E.2d 61, 62 (1980), the Court provided some
criteria to consider when determining if a position is an office:

Criteria to be considered ... include whether the position was

created

by

the

legislature;

whether

the

qualifications

for

appointment are established; whether the duties, tenure, salary,
bond, and oath are prescribed or required; whether the one

occupying the position is a representative of the sovereign; among
others.

In a prior opinion of this Office, we determined that a member of the Cherokee County Council
holds an office for dual office holding purposes.

See Op. S.C. Atty. Gen., 2016 WL 2933093

(May 6, 2016). We have also opined that an individual who serves on the Spartanburg County
Commission for Higher Education (“Commission”) would most likely hold an office for dual
office holding purposes.

See Op. S.C. Atty. Gen., 1992 WL 575619 (March 27, 1992).

reached this conclusion based on the following analysis:

The Spartanburg County Commission for Higher Education was

created by act of the General Assembly. See Act No. 36 of 1967,

as amended by Act No. 504 of 1967 and Act No. 202 of 1991. The
Commission is to consist of fifteen members, appointed by the
Governor upon the recommendation of a majority of the House of
Representatives members of Spartanburg County and the “senators
from District 4.” A term of four years and until one's successor is

appointed and qualifies, is specified. A member is to serve without
compensation.

No

mention

is

made

of taking

an

oath.

No

We

The Honorable Harvey S. Peeler, Jr.
Page 3

June 13,2023

qualifications are specified for membership. Certain powers and

duties are specified in these acts, including encouraging higher
education in Spartanburg County, establishing facilities for college
courses in the county, entering into agreements, soliciting funds,
accepting donations, exercising eminent domain, and appointing an

educational advisory committee.

This Office has previously examined membership on county higher
education commissions, concluding that such membership would
constitute an office for dual office holding purposes. Enclosed are
copies of opinions dated May 12, 1977 (as to the Allendale County
commission) and January 27, 1976 (as to the Georgetown County
commission). The duties and powers exercised by members of the
Spartanburg

County

commission

are

very

similar

to

those

exercised by similar commissions and appear to involve an
exercise

of a portion

of the

sovereign power of the

State

(particularly eminent domain). Thus, it is our opinion that one who
serves

on

the

Spartanburg

County

Commission

for

Higher

Education would most probably hold an office for dual office
holding purposes.

Id.
As you pointed out in your letter, however, the act establishing the Commission has been
amended since our 1992 opinion to provide for additional members.

See 1995 S.C. Acts 184.

The title of Act No. 184 of 1995 provides:

An Act To Amend Act 36 of 1967, As Amended, Relating To The
Spartanburg County Commission For Higher Education, So As To

Provide For One Additional Member Of The Commission From
Greenville County, And One Additional Member From Cherokee
County And To Provide For The Manner In

Which These

Members Shall Be Appointed.

We have previously explained that “[i]t is well settled that the title or caption of an act may be

considered to aid in the construction of a statute and to show the intent of the Legislature.” Op.
S.C. Atty. Gen., 2014 WL 3886690 (July 28, 2014) (citing Lindsay v. Southern Farm Bureau

The Honorable Harvey S. Peeler, Jr.
Page 4
June 13, 2023

Cas. Ins. Co., 258 S.C. 272, 188 S.E.2d 374 (1972). University of S.C. v. Elliott, 248 S.C. 218,

149 S.E.2d 433 (1966)). The title of Act No. 184 of 1995 indicates that the primary difference
between the regular members of the Commission and the additional members is their residency.

A review of the text of Act No. 184 of 1995 (“Act”) shows that the regular members and the
additional members are appointed in the same manner. The regular fifteen members are “to be

appointed by the Governor on the recommendation of a majority of the resident members of the
House of Representatives and the Senate from Spartanburg County.”

The additional members

from Greenville County and Cherokee County “shall be appointed by the Governor upon the

recommendation of a majority of the resident members of the Spartanburg County Legislative
Delegation.”

The terms of the regular members and the additional members appear to be the same.

The

regular members are granted terms of four years and “until their successors are appointed and

qualify.”

The Act does not provide for the additional members having a different term.

Furthermore, the compensation is the same, as “[a]ll members of the commission .... shall serve
without compensation.”

While the Act modifies the composition of the Commission, the powers and duties of its
members appears to remain the same. As such, we continue to believe individuals serving on the
Commission exercise a portion of the sovereign power of the State. The Act assigns additional
duties to the Commission as a whole. “The commissioners” are instructed to “elect a chairman,
vice-chairman, secretary, and treasurer from among their members” and to “organize and adopt

appropriate rules and procedures” at their first meeting. “The commission” is also empowered to
appoint an Educational Advisory Committee to “facilitate its work.”

The only difference

between the regular members and the additional members appears to be their residency.
Accordingly, our conclusion in our 1 992 opinion has not changed. An individual who serves on
the Spartanburg County Commission for Higher Education would most likely hold an office for

dual office holding purposes, regardless of his residency.

The Honorable Harvey S. Peeler, Jr.
Page 5

June 13,2023

CONCLUSION
In our opinion, service as a member of the Cherokee County Council and as the Cherokee
County member of the Spartanburg County Commission for Higher Education would violate the

dual office holding prohibition of the South Carolina Constitution.
Sincerely,

Elinor V. Lister
Assistant Attorney General

REVIEWED AND APPROVED BY:

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Robert D. Oefok
Solicitor General