Could a South Carolina assistant solicitor also work as a part-time city prosecutor?

Plain-English summary

An assistant solicitor in South Carolina’s Seventh Judicial Circuit asked whether he could also serve as a part-time city prosecutor. The Attorney General said in 2009 that simultaneous service would most probably violate the state Constitution’s dual-office prohibition. Earlier opinions had treated each position as a public office for that purpose.

The letter’s conclusion was expressed as “most probably,” and it addressed holding both roles at the same time. It did not identify a separate exception for part-time city work or make factual findings about a particular municipal appointment.

Currency note

This opinion was issued in 2009. 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 part-time city prosecutor status remove the dual-office issue? A: The opinion gave no such exception. It said an assistant solicitor serving simultaneously as a part-time city prosecutor would most probably hold conflicting offices.

Q: Why did the AG see two public offices?
A: The office relied on prior opinions treating assistant solicitor and city prosecutor as offices under the constitutional test.

Q: Did the opinion issue a definite court ruling?
A: No. It gave the Attorney General’s “most probably” conclusion about simultaneous service.

Q: Which constitutional concern controlled?
A: The concern was South Carolina’s rule against holding two offices of honor or profit at the same time, unless an exception applied.

Background and statutory framework

The South Carolina Constitution prohibited one person from holding two offices of honor or profit at the same time, subject to named exceptions. The Attorney General cited the public-office test: duties involving exercise of state sovereign power, with other factors such as the position’s statutory basis, duties, qualifications, oath, and compensation.

The opinion then cited prior Attorney General conclusions that an assistant solicitor was an office and that a city prosecutor was also an office. On that basis, it said combining the two positions would most probably conflict with the dual-office clause.

Citations and references

Authority discussed: Article XVII, section 1A of the South Carolina Constitution and prior Attorney General opinions on assistant solicitors and city prosecutors as public officers.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/august-10-2009-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/ellis-z-d-os-8840-8-10-09-dual-office-holding.pdf

Original opinion text

HENRY McMAS'fER
ATl'ORNEY G ENERAL.

August 10, 2009

Zachary D. Ellis, Assistant Solicitor
Seventh Judicial Circuit
Spartanburg County Court House
180 Magnolia Street
Spartanburg, South Carolina 29306
Dear Mr. Ellis:
In a letter to this office you indicated that you presently serve as an assistant solicitor in the Seventh Circuit Solicitor' s office and are questioning whether you may also serve as a part-time city prosecutor.

Article XV~ Section lA of the South Carolina 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, a member of a lawfully and regularly organized fire department, a constable, or a notary public. For this provision to be contravened, a person concurrently must hold two offices which have duties involving an exercise of some portion ofthe 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 in prior opinions has indicated that the position of assistant solicitor would be considered an office for dual office holding purposes. See: Ops. Atty. Gen. dated May 17, 2006; February 8, 2005; May 30, 1997; March 27, 1995. This office has also concluded that the position of city prosecutor is an office for dual office holding purposes. See: Ops. Atty. Gen. dated June 27, 1997; May 29, 1986; May 3, 1982. Consistent with the above, in the opinion ofthis office, an individual simultaneously serving as an assistant solicitor and a part-time city prosecutor would most probably hold dual offices in conflict with the referenced provisions of the State Constitution.

REMBERT

c. D ENNIS BUJLDL"IG • PoST O FFICE Box 11 549 • CoLUMBJA, SC 29211-1549 • TEI.EPHONE 803-734-3970 • F Ac slMil..E 803-253-6283

Mr. Ellis
Page2
August 10, 2009

With kind regards, I am,
Very truly yours,
Henry McMaster
Attorney General

c1~!7i ftioA ~
By:

ED AND APPROVED BY:

e
Deputy Attorney General

Charles H. Richardson
Senior Assistant Attorney General