Could a South Carolina fire commissioner also serve as a volunteer firefighter in the same department?

Plain-English summary

In 2007, the South Carolina Attorney General concluded that the state constitution's dual-office prohibition did not itself prevent a fire commissioner from also serving as a volunteer firefighter in the same department. The constitution expressly exempted members of lawfully organized fire departments from that prohibition.

The AG found a separate obstacle under common-law conflict principles. Prior opinions had identified a master-servant relationship where commissioners supervised, appointed, removed, or regulated the firefighters who served under them. Assuming the commission in question had that kind of supervisory power, the AG concluded that a commissioner serving as a firefighter would likely be prohibited from holding both positions.

Currency note

This opinion was issued in 2007. 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 South Carolina's dual-office provision ban this combination of roles? A: No. The AG read its express exemption for members of organized fire departments as covering the volunteer firefighter role.

Q: Why might serving in both roles still be prohibited?
A: The AG said a commissioner who supervised firefighters would occupy both sides of a master-servant relationship. Based on that assumed supervisory arrangement, he found a likely common-law conflict.

Q: Did the opinion decide whether every fire commissioner holds a public office? A: No. The AG said that particular question had not been asked, though earlier AG opinions had treated fire commissioners as officeholders.

Background and statutory framework

Article XVII, section 1A of the South Carolina Constitution restricted dual office holding but expressly exempted members of lawfully organized fire departments. The opinion distinguished that constitutional rule from common-law incompatibility: the latter concerned one role's supervisory power over the other. The AG relied on earlier fire department opinions and a South Carolina Supreme Court decision describing the conflict in being both master and servant.

Citations and references

Constitution: South Carolina Constitution, Article XVII, section 1A.

Case: McMahan v. Jones, 94 S.C. 362, 77 S.E. 1022 (1913).

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/april-5-2007/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/riebe-b-g-4-5-07-os-8362-dual-offical-holding.pdf

Original opinion text

April 5, 2007

Bryan G. Riebe, Chief
Glassy Mountain Fire Service Area
2015 Highway 11
Landrum, South Carolina 29356
Dear Chief Riebe:
We received your letter requesting an opinion concerning dual office holding. Specifically, you request an opinion addressing whether the dual office holding prohibition contained in the South Carolina Constitution prohibits an individual “who serves as a fire department commissioner, from serving as a volunteer firefighter with the same entity?” Law/Analysis Article XVII, section 1A of the South Carolina Constitution (Supp. 2006) prohibits a person from holding “two offices of honor or profit at the same time, but any person holding another office may at the same time be an officer in the militia, member of a lawfully and regularly organized fire department, constable, or a notary public.” In order to contravene this provision, a person concurrently must hold two offices having duties that involve the exercise of some portion of the sovereign power of the State. Sanders v. Belue, 78 S.C. 171, 174, S.E. 762, 763 (1907). Furthermore, our courts recognize other relevant considerations in determining whether an individual holds an office, such as, whether a statute, or other such authority, establishes the position, proscribes the position’s duties or salary, or requires qualifications or an oath for the position. State v. Crenshaw, 274 S.C. 475, 477, 266 S.E.2d 61, 62 (1980). You have not asked us to opine on whether a particular fire department’s commissioners are officers for purposes of dual office holding. However, we note in numerous opinions, this Office opined that a fire commissioner holds an office for purposes of article XVII, section 1A of the South Carolina Constitution. Ops. S.C. Atty. Gen., August 14, 1996; April 20, 1994; June 4, 1986. Nonetheless, article XVII, section 1A clearly exempts members of lawfully and regularly organized fire departments from the dual office holding prohibition. Thus, we do not believe an individual’s service as a member of a fire department’s commission while serving as a volunteer firefighter runs afoul of this constitutional provision.

Chief Riebe
Page 2
April 5, 2007
Despite finding article XVII, section 1A does not prohibit an individual from serving both on a fire department’s commission and as a volunteer firefighter for the same entity, such simultaneous service may create a master-servant relationship that is prohibited under South Carolina common law. In a past opinion, we summarized this relationship as follows:
[A] conflict of interest exists where one office is subordinate to the other, and subject in some degree to the supervisory power of its incumbent, or where the incumbent of one of the offices has the power of appointment as to the other office, or has the power to remove the incumbent of the other or to punish the other. Furthermore, a conflict of interest may be demonstrated by the power to regulate the compensation of the other, or to audit his accounts.
...
[I]t is not the performance, or the prospective right of performance, of inconsistent duties only that gives rise to incompatibility, but the acceptance of the functions and obligations growing out of the two offices . . . . The offices may be incompatible even though the conflict in the duties thereof arises on but rare occasions . . . . In any event, the applicability of the doctrine does not turn upon the integrity of the officeholder or his capacity to achieve impartiality. Op. S.C. Atty. Gen., March 26, 1999 (quoting 67 C.J.S. Officers § 27). Furthermore, the South Carolina Supreme Court in McMahan v. Jones, 94 S.C. 362, 365, 77 S.E. 1022, 1023 (1913), declaring the employment of two commissioners by the commission illegal, stated: No man in the public service should be permitted to occupy the dual position of master and servant; for, as master, he would be under the temptation of exacting too little of himself, as servant; and, as servant, he would be inclined to demand too much of himself, as master. There would be constant conflict between self-interest and integrity. In several prior opinions, we considered whether a master-servant conflict was created when a fire department commissioner also serves as a firefighter in the same department. Ops. S.C. Atty. Gen., February 28, 2001; January 23, 2001; October 9, 1995; April 20, 1994; January 19, 1994. In these opinions, we considered the fact that the commissioners act in a supervisory capacity over the firefighters, have authority appoint and remove the firefighters, supervise personnel matters, and have authority over the equipment used by the firefighters. Id. Based on these considerations, we concluded a master-servant relationship exists between the commissioners and the firefighters. Id. Thus, simultaneous service in both positions creates a conflict of interest in violation of common law

Chief Riebe
Page 3
April 5, 2007
master-servant principles. Presuming the fire department commissioners to whom you refer in your letter act in a supervisory capacity over the firefighters, in keeping with our prior opinions, we believe a master-servant conflict would arise prohibiting such individuals from serving in both capacities. Conclusion Because firefighters are specifically exempt from the dual office holding prohibition contained in the South Carolina Constitution, we do not believe this provision prevents a firefighter from serving as a commissioner for a fire department. However, such simultaneous service most likely creates a master-servant conflict of interest in degradation of the common law. Thus, if such a conflict exists, one may not serve as both a firefighter for a particular fire department while serving on its commission. Very truly yours, Henry McMaster Attorney General

By:

REVIEWED AND APPROVED BY:

______
Robert D. Cook
Assistant Deputy Attorney General

Cydney M. Milling
Assistant Attorney General