Could a South Carolina city council member also work as a juvenile justice Community Specialist IV in 1998?

Plain-English summary

A municipal judge asked whether a city council member could also serve as a Community Specialist IV for South Carolina's Department of Juvenile Justice. An assistant attorney general said no on the job description provided. A council seat counted as a public office under earlier AG opinions. The specialist's duties, including supervision of juveniles, counseling, case referrals, court paperwork, and placement coordination, resembled the sovereign functions of a probation officer; the AG therefore classified that role as an office too.

The letter also described the usual consequence under the dual office rule: accepting the second office vacated the first by operation of law, although the person could temporarily act in the first role as a de facto officer until a successor took over. It was an informal opinion tied to the described job duties.

Currency note

This opinion was issued in 1998. 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: Why did the AG count the juvenile justice job as an office?
A: It compared the supplied job description with probation officer duties that earlier AG opinions had classified as public office functions.

Q: Could the same person hold that role and a city council seat?
A: The opinion said simultaneous service in those two offices violated the state constitution's dual office prohibition.

Q: What happened to the first office after taking the second?
A: The letter said the first office was deemed vacated, though service there could continue temporarily with de facto status until a successor was selected.

Background and statutory framework

The opinion applied Article XVII, Section lA of South Carolina's constitution. It used earlier cases and AG opinions on the exercise of sovereign power to classify the city council role and the Community Specialist IV duties in the supplied job description.

Citations and references

• Article XVII, Section lA of the State Constitution, the dual office provision quoted in the letter.
• Sanders v. Belue, 78 S.C. 171, 58 S.E. 762 (1907).

Official title

Asking whether a dual office holding situation exists if a city councilman simultaneously serves as a Community Specialist IV for the South Carolina Department of Juvenile Justice.

Requester

The Honorable William E. Myrick, Jr., Municipal Court Judge, Town of Allendale

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/april-2-1998-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/11/98april2myrick.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CH A RLES MOLONY CONDON
ATIORN EY G ENERAL

April 2, 1998

The Honorable William E. Myrick, Jr.
Municipal Judge, Town of Allendale
P.O. Box 551
Allendale, South Carolina 29810

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RE:

Informal Opinion

Dear Judge Myrick:
Your opinion request has been forwarded to me for reply. You have asked whether simultaneous service as a city councilman and a Community Specialist IV for the South Carolina Department of Juvenile Justice would violate the dual office holding prohibitions of the State Constitution. Article XVII, Section lA of the State 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 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). 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). This Office has advised on numerous occasions that a member of a city council would be considered an officer for dual office holding purposes. See, as representative of those numerous opinions, Ops. Any. Gen. dated June 12, 1995; February 4, 1994; July 23, 1993 ; and July 24, 1991.

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TELEPHONE:

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FACS IMI LE: 803-253-628 3

The Honorable William E. Myrick, Jr.
Page 2
April 2, 1998
This Office has never specifically addressed the question of whether a Community Specialist IV for the Department of Juvenile Justice would be considered an office holder for dual office holding purposes. 1 Therefore, I must review the duties of a Community Specialist IV to determine whether such position is an office. In making this determination, I will be relying on a job description of a Community Specialist IV provided by the Department of Juvenile Justice, Human Resources Division.

I
I

The job description provides, among other things, that the Community Specialist IV manages and coordinates all community field services, within the assigned county, to juveniles and families with delinquency related problems. Further, this individual provides supervision and rehabilitative counseling to juveniles and families in an effort to help children become responsible members of society. The individual also accepts referrals, processes complaints, conducts pre-sentence hearing investigations, prepares court documents and assists in adjudication hearings. Finally, this individual coordinates alternative placement of juveniles and provides follow-up supervision of juveniles and families. Many of the duties of a Community Specialist IV are similar to those of a probation officer. This Office has previously concluded that a probation officer holds an office for dual office holding purposes. Ops. Atty. Gen. dated May 16, 1989 and July 11, 1984. In my opinion, since a Community Specialist IV exercises many powers similar to those of a probation officer, such position would also be considered an office for dual office holding purposes. Based on the foregoing, since the positions of city councilman and Community Specialist IV for the Department of Juvenile Justice are both considered offices for dual office holding purposes, if an individual were to simultaneously serve in both positions, the dual office holding prohibitions of the State Constitution would be violated.

1

This Office has previously addressed the question of whether the position of counselor for the Department of Youth Services would be an office for dual office holding purposes. Op. Atty. Gen. dated June 18, 1982. This opinion analyzed the statutory duties of the counselor and concluded the position was an office for dual office holding purposes. This conclusion was based on the fact that the counselor exercised powers similar to those of a probation officer. Since the time of this opinion, the statutes cited therein have been repealed. However, the conclusions reached in this opinion are persuasive in analyzing the question raised in your request.

The Honorable William E. Myrick, Jr.
Page 3
April 2, 1998
When a dual office holding situation occurs, the law operates to automatically "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 IA 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. However, the individual may continue to perform the duties of the previously held office as a de facto officer until a successor is duly selected to assume the duties or complete the term of office. Moreover, actions taken by a de facto officer in relation to the public or third parties will be considered as valid and effectual as those of a de jure officer unless or until a court would declare such acts void or remove the de facto officer from office. Ops. A!:ty. Gen dated April 8, 1996 and July 13, 1995. This letter is an informal opinion only. It has been written by a designated assistant attorney general and represents the position of the undersigned attorney as to the specific questions asked. It has not, however, been personally scrutinized by the Attorney General nor officially published in the manner of a formal opinion. With kindest regards, I remain Very truly yours,

73Jl.(.i
Paul M. Koch
Assistant Attorney General