Could an Andrews town clerk also serve as municipal court clerk under South Carolina dual office rules?

Plain-English summary

In 2018, a Town of Andrews employee asked whether serving as town clerk or clerk treasurer while also performing municipal court clerk duties would violate South Carolina’s prohibition on dual office holding. The Attorney General concluded that the described arrangement did not involve two offices.

The office pointed to a statute allowing a municipal clerk or other municipal employee to serve as clerk of court. It also understood the proposal as assigning extra duties to an existing position, rather than creating a second position. Because the office lacked the employee’s full job description and town ordinances, it discussed both the municipal clerk and clerk treasurer possibilities.

Currency note

This opinion was issued in 2018. 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: Could a municipal clerk be appointed clerk of municipal court?
A: The AG said the statute permitted a municipal clerk or other municipal employee to serve as clerk of court.

Q: Did the opinion find two offices in this arrangement?
A: No. It understood the facts as one position receiving additional clerk of court duties.

Q: Did it settle whether the requester was a municipal clerk or clerk treasurer?
A: No. The office lacked the job duties and ordinances needed for that classification, and said the distinction did not change its answer.

Background and statutory framework

The South Carolina Constitution restricted dual office holding. The opinion analyzed municipal clerk duties and the separate statute allowing municipal employees to serve as court clerk, then applied the office’s earlier view that adding duties to one office does not itself create another office.

Citations and references

• The AG quoted the statute: “The municipal clerk or other municipal employee may be appointed to serve as clerk of the court.”

• Its conclusion said “this is not dual office holding” because the described situation involved one position with additional duties.

Official title

On dual office holding (serve as Town Clerk/Treasurer/Municipal Clerk and Clerk of Court).

Requester

Ms. Chaconas Parson, Town of Andrews.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/august-17-2018/
• Original PDF: https://www.scag.gov/wp-content/uploads/2018/08/Parson-C.-OS-10262-FINAL-Opinion-8-17-2018-01762292xD2C78-01765010xD2C78.pdf

Original opinion text

11

Alan Wilson
Attorney General

August 17, 2018

Ms. Chaconas Parson
Town of Andrews
Post Office Box 378

Andrews, SC 29510
Dear Ms. Parson:

You have requested an opinion from this Office regarding conflict of interest and dual office holding. In your letter, you state that although the Town of Andrews' Municipal Court has been managed by Georgetown County since September 2002, the Town will soon resume management of its Municipal Court. You currently serve as the Town Clerk/Treasurer/Municipal Clerk. It has been brought to your attention that you may be asked to take on the position of Clerk of Court as well as your current duties. You question if this would be a conflict of interest or dual office holding for you to hold the two positions simultaneously. LAW/ANALYSIS:

You have asked us to address whether a conflict of interest exists, but our Office typically defers

to the State Ethics Commission on issues regarding ethics." Additionally, we do not believe that dual office holding^ is implicated in your situation. Although we have not been provided with 'The Stale Ethics Commission was given authority by the Legislature to interpret and issue opinions pertaining to

the provisions of the Ethics Act. S^S.C. Code Ann. § 8-13-320(1 1)(I976 Code, as amended). You may wish to contact the Commission to confirm that there are not any conflicts of interest.

" Dual office holding is prohibited by the South Carolina Constitution, which provides;
[n]o person may hold 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 ... The limitation above set forth does not prohibit any officeholder from being a delegate to a constitutional convention. S.C. Const., art. XVII § 1 A.

^i£^iBERTC. Dennis Building • Post Office Box 11549 • Columbla,SC292U-1549 • Telephone 803-734-3970 • Facsimile 803-253-6283

Ms. Chaconas Parson
Page 2
August 1 7, 20 1 8

either a list of your job duties or with Town ordinances describing your position, we believe that you are either a municipal clerk or a clerk-treasurer. The South Carolina Code of Laws provides for the appointment and the duties of a municipal clerk:
[t]he council under the . . .mayor-council forms of government . .
.shall appoint an officer of the municipality who shall have the title of municipal clerk. The municipal clerk shall give notice of council meetings to its members and the public, keep the minutes of its proceedings and perform such other duties as are assigned by council.

S.C. Code Ann. § 5-7-220 (1976 Code, as amended).
Alternatively, you may be a clerk-treasurer. In a Resolution, the South Carolina Senate clarified that a clerk-treasurer has a "combined municipal clerk and finance officer role." 2017 South Carolina Senate Resolution No. 1 184. The Senate also explained that a clerk-treasurer position "is common in small-to-midsize cities, while, in larger cities, a standalone municipal clerk position usually exists." Id Our Office has only briefly addressed the position of clerk-treasurer.

In Op. S.C. Attv. Gen..

1979 WL 43207 (Dec. 17, 1979), we determined that a clerk-treasurer was "not the municipal clerk contemplated by Section 5-7-220," since "[t]he municipal clerk expressly provided for by Section 5-7-220 ... is a position created by that provision to perform duties clerical in nature." In reference to your question, it is irrelevant whether you are a municipal clerk or a clerktreasurer. Section 14-25-35 provides that "[t]he municipal clerk or other municipal employee may be appointed to serve as clerk of the court." S.C. Code Ann. § 14-25-35 (1976 Code, as amended). Whether you are a municipal clerk under the statute or an employee of the

municipality, you are allowed to serve as clerk of court.
Furthermore, our understanding of your question is that you may be asked to perform the duties of a clerk of court in addition to your current duties. Your situation does not appear to involve two positions. Instead, it appears to involve one position performing additional duties. Our Office has formerly determined that "the mere assignment of additional duties to an alreadyexisting office would not create a second office." See Op. S.C. Attv. Gen.. 1988 WL 485336 (Nov. 10, 1988).

3 The Town of Andrews has a mayor-council form of government. See http://www.townofandrews.org/home/index.htm.

Ms. Chaconas Parson
Page 3
August 17, 2018

CONCLUSION:

We believe that a court would conclude that this is not dual office holding. As either a municipal clerk or a municipal employee, you can serve as clerk of court. Additionally, our understanding of your situation is that it involves one position performing the additional duties of a clerk of court, so a second office would not be implicated.

Sincerely,

Elinor V. Lister
Assistant Attorney General

REVIEWED AND APPROVED BY:

Robert D. Cook
Solicitor General