Could a Kershaw election commissioner also serve as Lancaster County attorney under South Carolina's 1998 dual-office rule?

Plain-English summary

An attorney asked whether he could serve on the Town of Kershaw Election Commission while also serving as Lancaster County Attorney. The Attorney General said the election commission seat counted as a public office under South Carolina's dual office holding prohibition. It did not decide whether the county attorney position also counted, because the letter did not establish how that particular position had been created.

The opinion explained that a county attorney's status depended on whether statute or ordinance created the position and whether its duties and other features made it a public office rather than employment. It identified salary, term, and oath requirements as relevant indicators. The answer was expressly limited by the missing facts about Lancaster County's arrangement; the letter was informal.

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: Was a town election commissioner a public officer under the 1998 opinion?
A: Yes. The AG applied earlier opinions classifying municipal and county election commissioners as officeholders.

Q: Did the AG say a county attorney was always a public officer?
A: No. It said the answer depended on the legal creation, duties, and other features of the particular county attorney position.

Q: Did the letter decide whether these two specific roles could be combined?
A: No. It lacked the facts needed to classify the Lancaster County Attorney position.

Background and statutory framework

The letter applied Article XVII, Section IA of the state constitution and the public-office factors in earlier South Carolina cases and AG opinions. It treated an election commission seat as an office, but left the county attorney classification dependent on the position's source and terms.

Citations and references

• Article XVII, Section IA of the State Constitution, the dual office provision quoted in the letter.
• Sanders v. Belue, 78 S.C. 171, 58 S.E. 762 (1907).
• July 13, 1981 AG opinion, quoted on county attorney positions.

Official title

Concerning whether a dual office holding situation exists if a member of the Town of Kershaw Election Commission simultaneously serves as the Lancaster County Attorney.

Requester

William R. Sims, Esquire

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/april-21-1998-2/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/11/98april21sims.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CH A RLES M OLONY C ONDON
ATTORN EY G EN ERAL

April21, 1998

I

William R. Sims, Esquire
106 South Hampton Street
Kershaw, South Carolina 29067
RE:

Informal Opinion

Dear Mr. Sims:
You have asked whether you may serve concurrently as a member of the Town of Kershaw Election Commission and as Lancaster County Attorney without contravening the dual office holding prohibitions of the South Carolina State Constitution. Article XVII, Section IA 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 county or municipal election commission would be considered an office holder for dual office holding purposes. Op. Atty. Gen. dated February 23, 1995 and opinions cited therein. In regards to the position of Lancaster County Attorney, the determination of whether a county attorney is an office holder for dual office holding purposes is not clear cut. In an opinion dated July 13, 1981, it was stated:

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Mr. Sims
Page 2
April 21, 1998

Whether or not a county attorney is an office would depend upon how the office itself is created. If the position is created by state statute or county ordinance and the duties of the position make it an office rather than mere employment, it would be violative of the dual office prohibitions of the State Constitution for one individual to hold the office of county attorney and another office. In prior opinions, this Office has addressed several county attorney positions and concluded that these were not offices. See Op. Atl.y. Gen. dated November 20, 1989 (copy enclosed). In reaching these conclusions, in addition to the factors mentioned above, we focused on whether a statute or ordinance set a salary or term of office and whether an oath was required. Since I do not know the manner in which the position of Lancaster County Attorney was created, I would recommend examining the above referenced factors for guidance. Based on the foregoing, the position of member of the Town of Kershaw Election Commission would be considered an office for dual office holding purposes. However, I am unable to determine whether the position of Lancaster County Attorney would also be considered an office. If after reviewing the above referenced factors and enclosed material, you have any further questions regarding the status of this position, please call me to discuss the matter.

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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,

BA r,c1

Paul M. Koch
Assistant Attorney General