Could a Colleton County school board member also serve as county administrator under the 1998 South Carolina dual-office rule?

Plain-English summary

In a letter to Senator McKinley Washington, the Attorney General concluded that a Colleton County School Board member could not simultaneously serve as Colleton County Administrator. The opinion treated each role as a public office under South Carolina's constitutional dual office holding prohibition. It relied on earlier opinions about school district boards and county administrators in counties using the council-administrator form of government.

The letter also explained the consequence of assuming a second covered office: the first office was deemed vacant by law. The person could continue performing its duties as a de facto officer until a successor was selected, but would no longer hold full legal title to that first office. The letter was expressly informal and addressed the positions and county form of government described in the request.

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: Did the AG consider a Colleton County school board seat a public office?
A: Yes. The letter applied earlier school district board opinions to the Colleton County board.

Q: Did the county administrator role count as another public office?
A: Yes, for a county operating under the council-administrator form of government described in the letter.

Q: What happened to the first office if its holder accepted the second?
A: The opinion said the first office was vacated by law. It described temporary continued service as that of a de facto officer until a successor was chosen.

Background and statutory framework

The opinion applied Article XVII, Section lA of the state constitution, which barred simultaneously holding two offices of honor or profit subject to specified exceptions. It cited Sanders v. Belue for the exercise-of-sovereign-power test and State v. Crenshaw for additional indicators of public office, then used earlier AG opinions to classify the two Colleton roles.

Citations and references

• Article XVII, Section lA of the State Constitution, the dual office provision discussed in the letter.
• Sanders v. Belue, 78 S.C. 171, 58 S.E. 762 (1907).
• State v. Crenshaw, 274 S.C. 475, 266 S.E.2d 61 (1980).

Official title

Concerning whether a dual office holding situation exists if a member of the Colleton County School Board simultaneously serves as the Colleton County Administrator.

Requester

The Honorable McKinley Washington, Senator, District No. 45

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/april-30-1998-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/11/98april30washington.pdf

Original opinion text

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The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLES MOLONY CONDON
ATIORNEY GENERAL

April 30, 1998

The Honorable McKinley Washington
Senator, District No. 45
Box 247
Ravenel, South Carolina 29470
Re:

Informal Opinion

Dear Senator Washington:
Attorney General Condon has forwarded your opinion request to me for reply. You have asked whether a member of the Colleton County School Board may simultaneously serve as the Colleton County Administrator without violating 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 never specifically opined as to whether membership on the Colleton County School Board of Trustees constitutes an office for dual office holding purposes. However, we have on numerous occasions concluded that membership on a school district board of trustees would constitute an office for dual office holding purposes. See, as examples of these numerous opinions, Ops. A!!y. Gen. dated October 5, 1993, November I , 1991 and August 8, 1990. Based on these prior opinions, it is my opinion that membership on the Colleton County School Board of Trustees would constitute an office for dual office holding purposes. RE~11l l' H r

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The Honorable McKinley Washington
Page 2
April 30, 1998
I have been informed that Colleton County operates under the council-administrator form of government. This Office has previously opined that one who serves as a county administrator for a county in which the county-administrator form of government has been properly adopted, would hold an office for dual office holding purposes. Ops. A!!y. Gen. dated August 8, 1990 and May 30, 1979. In accordance with these prior opinions, it is my opinion that the Colleton County Administrator would hold an office for dual office holding purposes.

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To summarize the foregoing, if a member of the Colleton County School Board of Trustees were to serve simultaneously as the Colleton County Administrator, such service would violate the dual office holding prohibitions of the State Constitution. 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. While the actions taken by a de facto officer are generally held to be valid with regard to third parties, there is no question that such officer is acting under color of law rather than with full de jure status which he would possess if there had been no dual office holding. Furthermore, there exists general authority that the protections afforded a de facto officer will not be deemed to continue indefinitely, particularly when the public is chargeable with notice that the officer's status has been reduced to one of de facto rather then de jure. 63A Am.Jur.2d Public Officers and Employees. 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,

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Paul M. Koch
Assistant Attorney General