Could Hilton Head Island’s revenue collector run for Beaufort County Council and hold both posts if elected?

Plain-English summary

A Hilton Head Island revenue collector asked whether she could seek a Beaufort County Council seat and keep her town position if elected. In 1996, the AG found no state-law objection to the candidacy on the facts supplied. The opinion did not determine what town employment policies might apply, and it did not analyze the federal Hatch Act because the requester said her job did not involve federal funds.

The AG reached a different conclusion about serving in both positions. County council membership was a public office, and the collector's duties included enforcing business license and beach fee ordinances, pursuing delinquent accounts and issuing warrants. The AG considered those duties an exercise of sovereign power despite the position's at-will employment terms. Concurrent service therefore would contravene Article XVII, Section 1A. The opinion added that taking the second office would vacate the first as a matter of law, although the person might perform duties as a de facto officer until a successor was selected.

Currency note

This opinion was issued in 1996. 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

Could the town revenue collector run for county council?

The AG found no state-law barrier to her candidacy under the facts she presented. The opinion left any applicable town policy unresolved.

Could she keep collecting town revenue while serving on council?

The AG concluded that holding both positions at once would violate the state constitution's dual office holding provision. The collector's enforcement and warrant authority made her an officer for that purpose, even though she was a town employee.

Would taking the council seat automatically end the first office?

The opinion said the first office would be deemed vacated upon assumption of the second. It also described possible de facto service until a successor took over and explained how acts toward the public or third parties were treated in that interval.

Background and legal framework

Article XVII, Section 1A barred concurrent holding of two offices of honor or profit, subject to exceptions identified in the opinion. The AG focused on whether each position exercised sovereign power. State v Crenshaw supplied other indicators of a public office, including how the position and its tenure and duties were established. The opinion characterized itself as an informal view of the signing assistant attorney general, rather than a formally published opinion.

Citations

• Article XVII, Section 1A.
• Sanders v. Belue; State v Crenshaw; Walker v. Harris.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/april-8-1996/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/12/96apr8garnes.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLES M OLONY C ONDON
ATTORNEY GENERAL

April 8, 1996

Ms. Kathy Barnes
3132 Palomino Drive
Burton, South Carolina 29902
RE: Informal Opinion
Dear Ms. Barnes:
By your letter of April 3, 1996, to the Office of Attorney General Condon, you have sought an opinion as to whether you may concurrently be employed as the Revenue Collector for the Town of Hilton Head Island and also serve on Beaufort County Council without contravening the dual office holding provisions of the South Carolina Constitution. You have advised that you are offering for election to the Beaufort County Council, and you are concerned about any possible conflict in offering for election or in serving should you be elected to Council. There is no state law which would prohibit your candidacy. You advise that your position with the Town does not involve federal funds, and so consideration of the federal Hatch Act is not required in this instance. You have already inquired as to applicable policies of the Town of Hilton Head Island, I understand; I am not in a position to know what if any policy there might be applicable. I am n.ot aware of any potential conflict in your candidacy, based on these considerations.

If there should be a problem, it would arise if you should be elected to Council and serve on that body while maintaining your employment as the Town's Revenue Collector. I am of the opinion that dual office holding would result, as more fully described below. Article XVII, Section 1A of the South C1rolina 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
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PosTOFFICE Box 11 549

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Cou::vtBlA. s.c. 292l t- l549

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T ELEPHONE:

803-734-3970

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FACSIMILE: 803-253-6283

Ms. Kathy Barnes
Page 2
April 8, 1996
department, constable, or a 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 (I 907). Other relevant considerations are whether statutes, or other such authority, establish the position, prescribe its tenure, 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 opined on numerous occasions that one who serves on a county council would be considered an office holder for dual office holding purposes. Enclosed please find copies of two opinions, representative of those numerous opinions, so concluding (December 7, 1994, and December 20, 1993). Because service on a county council would be considered an office, it must thus be detennined whether your present position as Revenue Collector would be considered an office. The position of Revenue Collector was created by action of the Town of Hilton Head Island. You are an employee of the Town and are compensated. Your tenure with the Town is "at will" employment. Your Job Description contains the following general statement of your job: Under general supervision, performs specialized duties established to ensure the enforcement of the Town's Business License Ordinance covering all businesses operating within the town limits, the Beach Preservation Fee Ordinance covering accommodations undei ninety days, and the Setoff Debt Program as it relates to the agreement with the Municipal Association of South Carolina. Reports to the Manager of Business License & Collections-Inspector/Auditor. Specific duties and responsibilities include such ~ssential job functions as ·ffiitiating and processing the collection of all delinquent business license, beach preservation fee, and setoff debt accounts; preparing and sending out written delinquent notices; coordinating with the Accounting Division--EMS and the Municipal Court for the collection of delinquent accounts; issuing warrants on any delinquent business or individual as required and coordinating with magistrate's court for the prosecution of same; and performs many other functions related to revenue collection. I am of the opinion that such responsibilities involve an exercise of a portion of the sovereign power of the State, on behalf of the Town of Hilton Head Island. Wbi1e some of the elements found in an office are lacking, I am of the opinion that the most important element, an exercise of some type of sovereign power, is present and would conclude that the Revenue Collector for the Town of Hilton Head Island would be considered an officer for dual office holding purposes.

Ms. Kathy Barnes
Page 3
April 8, 1996
Based on the foregoing, I am of the opinion that if you were to be employed as the Revenue Collector for the Town of Hilton Head Island and at the same time serve as a member of Beaufort County Council, you would contravene the dual office holding prohibitions of the South Carolina Constitution. That being the case, if a person holds one office (Revenue Collector, for example) on the date he or she assumes a second office (Beaufort County Council, for example), both offices fal1ing within the provisions of Article XVII, Section 1A of the State Constitution, that person is deemed to have vacated the office first held. However, the person may continue to perform the duties of the previously held office as a de facto officer, rather than de jure, until a successor is duly selected to complete his term of office (or to assume his duties if the term of service is indefinite). See, Walker v. Harris. 170 S.C. 242 (1933); Dove v. Kirkland, 92 S.C. 313 (1912); State v. Coleman, 54 S.C. 282 (1898); State v. Buttz, 9 S.C. 156 (1877). 1 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. See, as examples, State ex rel. McLeod v. Court of Probate of Colleton County, 266 S.C. 279, 223 S.E.2d 166 (1976); State ex rel. McLeod v. West. 249 S.C. 243, 153 S.E.2d 892 (1967); Kittman v. Ayer, 3 Strob. 92 (S.C. 1848); 67 C.J.S. Officers §276. I trust that this has satisfactorily responded to your inquiry. clarification or additional assistance should be necessary.

Please advise if

This letter is an informal opinion only. It has been written by a designated Senior 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:

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A de jure officer is "one who is in all respects legally appointed and qualified to exercise the office." 63 Am.Jur.2d Public Officers and Employees §495. A de facto officer is "one who is in possession of an office, in good faith, entered by right, claiming to be entitled thereto, and discharging its duties under color of authority." Heyward v. Long, 178 S.C. 351, 183 S.E.145, 151 (1936); see also Smith v. City Council of Charleston, 198 S.C. 313, 17 S.E.2d 860 (1942) 'nd Bradford v. Byrnes, 221 S.C. 255, 70 S.E.2d 228 (1952).

Ms. Kathy Barnes
Page 4

Apri1 8, 1996
With kindest regards, I am
Sincerely,

VJ~LJ·/~
Patricia D. Petway
Senior Assistant Attorney General
Enclosures