Could one person be Johnsonville’s city administrator, associate judge and school board trustee?

Plain-English summary

Johnsonville's mayor asked whether one person could simultaneously serve as city administrator, associate city judge and a trustee of School District 5. The 2000 informal opinion separated the positions. It said the city administrator was most probably not an “office” for South Carolina's constitutional dual-office rule because the council retained the government's sovereign and policy-making powers. It treated the associate municipal judge and school trustee positions as public offices under earlier AG opinions. Holding those two at once would violate the constitutional prohibition.

The AG raised a distinct concern about the judicial code's appearance-of-conflict rules for a judge who was also a town employee and school trustee. It did not decide that ethics issue; it suggested seeking an advisory opinion from the judicial conduct committee. The constitutional answer thus did not resolve every issue raised by the three-role arrangement.

Currency note

This opinion was issued in 2000. 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: Was the city administrator position itself a second public office?
A: The AG said it was most probably not an office under the council form of government it examined.

Q: Could the associate judge also serve as a school district trustee?
A: No. The opinion treated both positions as public offices and said holding them together would violate the dual-office rule.

Q: Did the AG clear the judicial-ethics question?
A: No. It identified a possible appearance issue under the Code of Judicial Conduct and pointed to the judicial advisory committee for that separate question.

Background and statutory framework

The letter described the sovereign-power test for a public office and applied earlier AG opinions about town administrators, municipal judges and school trustees. It distinguished that constitutional classification from the Code of Judicial Conduct, which governed the judge separately.

Citations and references

• Sanders v. Belue and State v. Crenshaw, on the characteristics of a public office.

Official title

Asking whether a dual office holding situation exists if an individual serves simultaneously as the Johnsonville City Administrator, Johnsonville Associate City Judge, and as a member of the Johnsonville School District Board of Trustees.

Requester

The Honorable Thomas E. Redmond, Mayor, City of Johnsonville

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/august-15-2000-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/11/00aug15redmond.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLES MOLONY CONDON
ATTORNEY GENERAL

August 15, 2000

The Honorable Thomas E. Redmond
Mayor, City of Johnsonville
P.O. Box 455
Johnsonville, SC 29555

Re:

Informal Opinion

Dear Mayor Redmond:
By your letter of August 4. 2000. you have asked whether a dual office holding situation would exist if an individual were to serve simultaneously as the Johnsonville City Administrator. Johnsonville Associate City Judge. and as a member of the Johnsonville School District 5 Board of Trustees. Article XVII, 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. constable, or a notary public. As concluded by Attorney General Daniel McLeod in an opinion dated April 26. 1977. '"[t]o determine whether a position is an office or not depends upon a number of circumstances and is not subject to any precise formula ... The South Carolina Supreme Court, though, has held that for this provision to be contravened. a person concurrently must hold two 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). --one \Vho is charged by law with duties involving an exercise of some part of the sovereign power. either small or great, in the performance of which the public is concerned. and which are continuing and not occasional or intermittent. is a public officer. .. JJ;L, 78 S.C. at 174. Other relevant considerations. as identified by the Court. are \vhether statutes. or other 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. 4 75. 266 S.E.2d 61 ( 1980).

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Mayor Redmond
Page 2
August 15. 2000

According to the 2000 South Carolina Municipal Association Directory p. 58. the City of Johnsonville operates under the council form of government as provided for in S.C. Code Ann. §5-11-10 et seq. Section 5-l l-40(a) of the Code states. ·'[t]he council may hire an administrator to assist the council." This Office. in an opinion dated October l 8. 1988 (enclosed). observed that .. [ n ]o duties. qualifications. oath. salary. or tenure are provided for by statute and thus are left to the discretion of ... Town Council. Because the Tovvn Council is vested with all legislative and administrative powers needed to operate town government and the determination of policy is vested in council. it would appear that all of the sovereign power is most probably being exercised by council instead of the administrator." For this reason, \ve concluded that the position of town administrator as contemplated by §5-l 1-40 is --most probably not an office for dual office holding purposes ... (Emphasis added.) Accordingly. it is my opinion that the position of Johnsonville City Administrator is most probably not an ot1ice for dual office holding purposes. See also, Op. Attv. Gen. dated October 13. 1992 (enclosed). With respect to associate municipal court judges and school district trustees. ho,vever. this Office has previously determined that these individuals are officers for dual office holding purposes. See. e.g.. Ops. Attv. Gen. dated June 22. 1998: May 30. 1997: October

18. 1998: August 14. 1996: and October 5. 1993 (enclosed). Therefore. based upon the
    reasoning and conclusions of these earlier opinions. it is my opinion that a Johnsonville Associate City Court Judge may not simultaneously sene on the Johnsonville School District 5 Board ofTrustees without contravening the dual office holding prohibitiens of the State Constitution. I have also enclosed a prior opinion dated July 13. 1995 \vhich discusses how dual office holding works and how the law operates to cure a dual office holding situation. Finally. municipal court judges are subject to the Code of Judicial Conduct. as found in Rule 33 of the Supreme Court Rules. Due to the possible appearance of a conflict of interest by having a tO\n employee and school trustee sen ing as an associate cit; judge. it might be prudent to obtain ~m ad,isory opinion on the ramitications of the CGde of Judicial Conduct from the A.dvismy Committee on Standards of Judicial Conduct. You may contact the Committee by \vriting to the Commission on Judicial Conduct: l 015 Sumter Stred: Calhoun Building. Room 11 l: Columbia. SC 2920 I. I trust this infonnation is responsive to your inquiry and that you\ ill not hesitate to contact me if I can be of additional assistance. This letter is an infonnat opinion only. It has been written by a designated Deputy Attorney General and represents the position of the undersigned attorney as to the speci tic questions asked. !t has not been personal I;

Mayor Redmond
Page 3
August 15, 2000
scrutinized by the Attorney General nor officially published in the manner of a formal opm1on. With kind regards, I am Sincerely yours,

M,.

Zeb C. Williams, III
Deputy Attorney General

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Enclosures