Could Blackville's mayor also serve as a state correctional officer, and were his mayoral acts void?

Plain-English summary

The Attorney General's office considered whether Jackie Holman could serve as mayor of Blackville while employed as a correctional officer by the South Carolina Department of Corrections. Its 1999 answer was no: the office treated both positions as public offices under the state's constitutional bar on holding two offices of honor or profit at the same time.

The writer then addressed the effect on the mayor's acts after he accepted the correctional position. Under the rule stated in the letter, accepting a second covered office automatically vacated the first. He could nonetheless continue performing the first office's duties as a de facto officer until a successor was selected. His acts involving the public or third parties were effective as those of a duly qualified mayor unless or until a court declared them void or removed him. The letter did not itself void any particular action.

Currency note

This opinion was issued in 1999. 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: Did the opinion classify a mayor and a correctional officer as public officers? A: Yes. Relying on earlier office opinions, it treated both positions as offices for the constitutional dual-office rule.

Q: Which position did the office say Holman vacated?
A: The letter said the first office was deemed vacated when a person already holding it assumed a second covered office. Holman had become mayor before taking the correctional position.

Q: Were all acts he took as mayor after accepting the second position void? A: The office said no automatic invalidity followed. It treated acts by a de facto officer involving the public or third parties as effective unless or until a court declared them void or removed the officer.

Background and statutory framework

Holman was elected mayor in 1995 and hired as a correctional officer in 1997. The requester asked both whether that was prohibited and whether the later mayoral acts were void. The office applied Article XVII, Section IA of the South Carolina Constitution and its earlier opinions classifying mayors and correctional officers. It then explained the de facto officer rule. This was an informal opinion by the signing assistant attorney general, not one personally scrutinized or officially published by the Attorney General.

Citations and references

• Constitution: Article XVII, Section IA, quoted in the letter as barring simultaneous holding of two offices of honor or profit, subject to stated exceptions.
• Public-office test: Sanders v. Belue, 78 S.C. 171, 58 S.E. 762 (1907), cited for duties exercising sovereign power.
• Prior AG opinions: July 3, 1984, on correctional officers; April 8, 1996 and July 13, 1995, on de facto officer acts.

Official title

Asking whether simultaneous service as mayor and correctional officer violates the dual office holding prohibitions of the South Carolina Constitution.

Requester

The Honorable Joe E. Brown, Member, House of Representatives

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/april-28-1999/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/11/99apr28brown.pdf

Original opinion text

J

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLES M. CONDON
ATIORNEY GENERAL

April 28, 1999

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The Honorable Joe E. Brown
Member, House of Representatives
P. 0. Box 11867
Columbia, South Carolina 29211
Dear Representative Brown:

RE:

Informal Opinion

Dear Representative Brown:
Attorney General Condon has forwarded your opinion request to me for reply. You have informed this Office that Mr. Jackie Holman was elected mayor of Blackville in 1995 and was hired as a correctional officer by the Department of Corrections in 1997. You have asked whether simultaneous service as mayor and correctional officer violates the dual office holding prohibitions of the South Carolina Constitution. If the dual office holding prohibitions have been violated, you ask whether the actions taken by Mr. Holman since 1997 in his capacity as mayor are void. 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 exception 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).

REMBERT C. DENNIS BUI!Jl..W4-F•RPOST OFFICE Box 11549
OC"Al IC~T I 1-- I I

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COLUMBIA, s.c. 29211-1549

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TELEPHONE: 803-734-3970

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FACSIMILE: 803-253-6283

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Representative Brown
Page2
April 28, 1999

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This Office has determined on numerous occasions that one who serves as a mayor of a municipality would hold an office for dual office holding purposes. Ops. 8J!x. Gen. dated September 18, 1997, July 8, 1991, June 19, 1987, September 23, 1980 and February 20, 1980. This Office has also determined that a corres_tional officer would hold an office for dual office holding purposes. Op. A!!y. Gen. dat<?d July 3, 1984. Accordingly, if an individual serves simultaneously as mayor ofBlackville,and correctional officer employed by the Department of Corrections, the dual office holding prohibitions of the Constitution would be violated. 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 ~ a de facto officer until a successor is duly selected to assume the duties or complete the term of office. 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. Ally. 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,

l:i~;(o~
Paul M. Koch
Assistant Attorney General