If a city council appoints someone to serve on a planning commission, can the same person win an election and serve the school board at the same time? Can someone who works as the clerk of court for a municipal court also take a job as a part-time codes enforcement officer in another jurisdiction?
These questions involve dual office holding, which South Carolina law prohibits. The South Carolina Constitution contains two separate provisions — Article VI, Section 3, and Article XVII, Section 1A — that use identical language: “No person may hold two offices of honor or profit at the same time.”
State law specifically prohibits municipal dual office holding. SC Code Section 5-7-180 provides that “no mayor or councilman shall hold any other municipal office or municipal employment while serving the term for which he was elected.”
It is unlawful to hold two offices at the same time, but the hard task — constantly revisited in attorney general opinions — is to define an “office of honor or profit.”
Not every appointed or senior governmental position is an office. In the 2013 case Alexander v. Houston, the South Carolina Supreme Court explained that “for purposes of the dual office holding provision, it must be demonstrated that the 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 [and are] defined, directly or impliedly, by the legislature or through legislative authority.”
Covered offices
- Elected offices are straightforward — any position that is publicly elected is an office of honor or profit.
- Appointed seats on boards or commissions created by state law are usually considered offices of honor or profit. For example, appointed positions on planning commissions, boards of zoning appeals, and housing authorities are offices of honor or profit.
- Specific employment positions created by state law, such as municipal clerks, managers and clerks of court are considered to count among these offices.
- Positions that involve significant governmental power under state law — in particular law enforcement powers, such as police officers, sheriffs or deputy sheriffs — are generally considered to be offices of honor or profit.
Exceptions
There are exceptions to the dual office holding rule. The most important is the ex-officio exception, which allows service in a second office that exists “by virtue or because of” service in the first office, as affirmed in the 2013 SC Supreme Court case SC Public Interest Foundation v. SC Transportation Infrastructure Bank. For example, South Carolina law provides that the governor serves on many boards and commissions by virtue of election to the office of governor. Service as a board member on a Council of Governments is also exempted from being an office under state law.
Enforcement
The courts enforce the dual office rule by holding that a person who accepts a second office automatically vacates the prior office. For example, if a person is appointed to a planning commission and is later elected to the school board, the person will be deemed to have resigned from the planning commission.
The Municipal Association has often considered questions of dual office holding and developed useful guidance on many specific positions, including in the Handbook for Municipal Officials in South Carolina, found at www.masc.sc (keyword: municipal officials handbook). When in doubt, officials can ask their Municipal Association field services manager. Find contact information on the Association’s website (keyword: field services).