Could New Ellenton’s mayor also serve as an Aiken County tax code enforcement officer?

Plain-English summary

A New Ellenton council member asked whether one person could be both mayor and an Aiken County Tax Collector’s Office code enforcement officer. The Assistant AG said that would violate the South Carolina Constitution’s dual-office prohibition.

The office had already treated a mayor as a public officer. The author also classified the county code enforcement position as an office because the statute gave these officers constable powers and authority to issue ordinance summonses, an exercise of state police power. Their lack of custodial-arrest power did not change that conclusion. Holding both positions would therefore mean holding two public offices at once.

Currency note

This opinion was issued in 1997. 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: Why was the county code enforcement job treated as an office? A: The author pointed to its statutory appointment, constable powers, and authority to issue ordinance summonses as exercises of sovereign power.

Q: Did the officer need custodial-arrest authority to count as an officeholder? A: No. The letter expressly noted that code enforcement officers could not make custodial arrests, but still classified the post as an office.

Q: Was the mayorship also a public office?
A: Yes. The author relied on earlier office opinions treating municipal mayors as officeholders.

Background and statutory framework

The letter applied Article XVII, Section 1A of the state constitution and the office test in Sanders v. Belue and State v. Crenshaw, while also citing § 4-9-145 for code enforcement officers’ appointment and powers and § 56-7-80 for ordinance summonses.

Citations and references

Statutes discussed: § 4-9-145; § 56-7-80. Cases discussed: Sanders v. Belue; State v. Crenshaw.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/april-9-1997/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/11/97april9carmack.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLES MOLONY CONDON
ATTORNEY GENERAL

April 9, 1997

I
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The Honorable Ronald G. Carmack
Member, New Ellenton Town Council
P.O. Drawer 479
New Ellenton, South Carolina 29809
Re:

Informal Opinion

Dear Mr. Carmack:
Your recent opinion request has been referred to me for reply. You have inquired as to whether an individual may serve simultaneously as mayor of the City of New Ellenton and as a Tax Enforcement Officer for Aiken County.
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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 concluded on numerous occasions that one who serves as a mayor of a municipality would hold an office for dual office holding purposes. See opinions dated November 2, 1994; July 28, 1993; February 25, 1992; and September 21, 1989, among many others. This Office has never specifically addressed whether a county code enforcement officer would be considered an office holder for dual office holding purposes. Therefore, the duties of a code enforcement officer must be analyzed to determine whether this position would be considered an office.

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PosTOFFICEBox 11549

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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

The Honorable Ronald G. Carmack
Page 2
April 9, 1997
The appointment of county code enforcement officers is authorized by S.C. Code
Ann.§ 4-9-145 (Supp. 1996). Pursuant to this statute, the governing body of the county
may appoint and commission as many code enforcement officers as may be necessary for
the proper security, general welfare, and convenience of the county. Code enforcement
officers are vested with all the powers and duties conferred by law upon constables in
addition to the duties imposed upon them by the governing body of the county. Id.
These code enforcement officers are authorized to exercise their powers on all private and
public property within the county. Id. Code enforcement officers commissioned under
this statute are not permitted to perform a custodial arrest. Id. However, they are
authorized to issue an ordinance summons to cite a violation of a county ordinance. S.C.
Code Ann.§ 56-7-80 (Supp. 1996).
Based on the foregoing description of the powers of a code enforcement officer,
it is apparent that the officer exercises one of the traditional sovereign powers of the State:
police power. While code enforcement officers are not given the power to perform a
custodial arrest, they are given many of the other powers traditionally accorded to peace
officers in this state, including the power to issue an ordinance summons on behalf of the
county. Accordingly, I am of the opinion that a code enforcement officer for the Aiken
County Tax Collector's Office would be considered an officer for dual office holding
purposes.
In conclusion, since the positions of mayor of the City of New Ellenton and code
enforcement officer for the Aiken County Tax Collector's Office are both considered
officers for dual office holding purposes, if an individual simultaneously serves as both,
Article XVII, Section IA of the State Constitution would be violated.
Fr0

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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

~;];:;rs,
Paul M. Koch
Assistant Attorney General