South Carolina Advisory Opinions October 18, 2000: Opinion asking whether a dual office holding situation exists if a member of the Lander University Board of Trustees simultaneously serves as a member of the Lexington County School District 2 Board of Trustees.

Advisory Opinion Text

Mr. Maurice Holloway
4139 Platt Springs Road
West Columbia, SC 29170

Dear Mr. Holloway:

By your letter of October 17, 2000 you have asked whether a dual office holding situation would exist if you were to serve simultaneously as a member of the Lander University Board of Trustees and as a member of the Lexington County School District 2 Board of Trustees. For the reasons set forth below, it is my opinion that concurrent service in these positions would violate the South Carolina Constitution's prohibition against dual office holding.

Article XVII, Section 1A 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, a member of a lawfully and regularly organized fire department, constable, or a notary public. As concluded by Attorney General Daniel McLeod in an opinion dated April 26, 1977, "[t]o determine whether a position is an office or not depends upon a number of circumstances and is not subject to any precise formula." The South Carolina Supreme Court, though, has held that 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). "One 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." Id. , 78 S.C. at 174. Other relevant considerations, as identified by the Court, are whether statutes, or other 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).

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This Office has previously concluded that members of the Lander University Board of Trustees are officers. See, Op. Arty . Gen , dated January 18, 1990. Therefore, having determined that Lander University Trustees are office holders within the meaning of Art. XVII, Sec. 1A, it is necessary, then, to address whether membership on the Lexington County School District 2 Board of Trustees would likewise constitute an office. Once again, reference to this Office's earlier opinions are instructive. We have advised on numerous occasions that school district trustees would be considered office holders for dual office holding purposes. See, e.g., Ops . Atty . Gen , dated September 20, 1999; September 7, 1993; and November 1, 1991. Therefore, based on the reasoning and conclusions of these earlier rulings, it is my opinion that a member of the Lander University Board of Trustees could not simultaneously serve on Lexington County School District 2 Board of Trustees without violating the dual office holding prohibitions of the State Constitution.

As I mentioned during our recent conversation, a dual office holding problem does not occur until the individual is actually elected to the second office and begins to exercise the powers and duties of that office. "Merely offering as a candidate for election . . . would not cause a dual office holding problem." See, Op . Atty . Gen . August 14, 1996. Moreover, when a dual office holding situation occurs, the law operates automatically to "cure" the problem. If an individual holds one office on the date he assumes a second office, assuming both offices fall within the purview of Article XVII, Section 1A of the Constitution (or one of the other applicable constitutional prohibitions against dual office holding), he is deemed by law to have vacated the first office held. Thus, the law operates automatically to create a vacancy in that first office. However, the individual may continue to perform the duties of the previously held office as a de facto officer, rather than de jure, until a successor is duly selected to complete his term of office (or to assume his duties if the term of service is indefinite). See, Walker v. Harris , 170 S.C. 242 (1933); Dove v. Kirkland , 92 S.C. 313 (1912); State v. Coleman , 54 S.C. 282 (1898); State v. Buttz , 9 S.C. 156 (1877). Furthermore, actions taken by a de facto officer in relation to the public or third parties will be as valid and effectual as those of a de jure officer unless or until a court should declare

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such acts void or remove the individual from office. See, for examples, State ex rel. McLeod v. Court of Probate of Colleton County , 266 S.C. 279, 223 S.E.2d 166 (1976); State ex rel. McLeod v. West , 249 S.C. 243, 153 S.E.2d 892 (1967); Kittman v. Ayer , 3 Strob. 92 (S.C. 1848).

I trust this information is responsive to your inquiry and that you will not hesitate to contact me if I can be of additional assistance.

Sincerely yours,

/s/
Zeb C. Williams, III
Deputy Attorney General

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