Could a South Carolina town council member work as an election poll manager or clerk when not on the ballot?

Plain-English summary

The Town of Iva asked whether one of its council members could serve as a poll manager or election clerk when not a candidate, including in other jurisdictions, and whether refusing pay would change the answer. The Attorney General concluded in 2009 that the state Constitution’s dual-office rule barred the combination in any election. It treated a council seat and poll-manager or clerk service as public offices.

The opinion noted that election statutes did not expressly forbid a council member whose name was absent from the ballot from serving as a poll worker. The separate constitutional rule controlled. Declining compensation did not change the result because appointment, oath, and exercise of public authority also made poll managers and clerks officeholders.

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: Could a council member manage a poll if the member was not on the ballot? A: The opinion said no. Even without candidacy, serving simultaneously as a council member and poll manager violated the dual-office rule in the office’s view.

Q: Would working an election in another municipality change the answer? A: No. The Attorney General’s conclusion covered service as a poll manager or clerk in any election.

Q: Could the council member avoid the problem by declining pay? A: No. The opinion said the appointment, oath, and public powers of the poll role remained relevant even without compensation.

Q: Did a specific election statute ban this combination? A: The office found no express election-code prohibition for a noncandidate council member, but concluded that the state Constitution’s dual-office rule barred it.

Background and statutory framework

The town attorney framed three variations: working a municipal election where the member was not a candidate, working other elections where the member was not a candidate, and declining payment. The Attorney General reviewed election statutes on appointment of poll managers and clerks and a provision restricting candidates and certain relatives from serving at a polling place where the candidate appeared on the ballot.

It then applied article XVII, section 1A of the South Carolina Constitution. Prior opinions had treated council members and poll managers as officeholders, and the letter identified a poll worker’s oath and public powers among the reasons. Because pay was only one factor, waiving it did not remove the dual-office problem.

Citations and references

Authorities discussed: Article XVII, section 1A of the South Carolina Constitution and Sections 7-13-72 and 7-13-120 of the South Carolina Code. The opinion also refers to earlier Attorney General analyses of poll managers as public officers.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/august-19-2009-3/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/mccormac-m-c-os-8796-08-19-09-dual-office-holding.pdf

Original opinion text

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August 19, 2009

Mary C. McCormac, Esquire
Mary C. McConnac Attorney At Law, LLC
Post Office Box 1535
Clemson, South Carolina 29633
Dear Ms. McCormac:
We understand you serve as the Town Attorney for the Town oflva (the "Town") and wish to request an opinion of this Office on behalf of the Town concerning "whether a Town Council member may serve as a poll manager or clerk without offending State law or constitutional prohibitions against dual office holding." Specially, you state your questions as follows:

1. May a municipal Council member serve as a poll manager or clerk
   for municipal el ections in which he or she is not a candidate?
2. May a municipal Council member serve as a pol1 manager or clerk
   for state, county, or municipal elections for other municipalities for elections in which he or she is not a candidate?
3. Would it make a difference if the municipal Council member
   declined to accept payment for his/her service as a poll manager or clerk? Law/Analysis

Section 5-1 5-100 of the South Carolina Code (2004) gives municipal election commissions the authority to appoint poll managers. No other provision in the Municipal Code pertains to poll managers. Thus, we look to the provisions in title 7 generally governing all elections, including municipal elections. Section 7-13-72 of the South Carolina Code (Supp. 2008) addresses poll managers and provides that they are appointed by the appropriate commission ofelection. Moreover, this provision states that clerks are selected from among the managers for each polling place. Section 7-13-120 of the South Carolina Code (1976) specifically prohibits "a candidate or the spouse, parents, children, brothers or sisters of a candidate for public office to work as a manager or clerk ofelection at a polling place where such candidate' s name appears on the ballot." However,

REMBERT

c D ENNIS B UILDINO • POST Or:r:tCE Box 11 549 • COLUMBIA. SC 292 11-1 549 • T ELl:'l'HONE 803·734-3970 • F ACSIM ILE 803-253-6283

Ms. McCormac
Pagc2
August 19, 2009

this provision does not specifically prohibit an elected official whose name does not appear on the ballot from serving as a poll manager or clerk. Nonetheless, we believe that a member of a municipal council is prohibited from serving as a poll manager or clerk pursuant to article XVII, section 1A of the South Carolina Constitution (2009). Article XVII, section 1A ofthe South Carolina Constitution prohibits a person from holding "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." To contravene this provisions, a person concurrently must hold two offices having duties that involve the exercise of some portion of the sovereign power of the State. Sanders v. Belue, 78 S.C. 171, 174, S.E. 762, 763 (1907). Furthermore, our courts recognize other relevant considerations in determining whether an individual holds an office, such as, whether a statute, or other such authority, establishes the position, proscribes the position's duties or salary, or requires qualifications or an oath for the position. State v. Crenshaw, 274 S.C. 475, 477, 266 S.E.2d 61, 62 (1980). Numerous opinions of this Office conclude that a member of a city or town council is considered an office holder for purposes of dual office holding. Ops. S.C. Atty. Gen., June 5, 2009; March 4, 2009; February 26, 2007; May 9, 2006; April 29, 2004. In addition, in serval opinions, this Office concluded that poll managers hold offices for purposes of dual office holding. Ops. S.C. Atty. Gen., February 8, 1991; October 24, 1984; June 11, 1984; June 14, 1973. In two of these earlier opinions, we relied on the fact that poll managers must take an oath as the reason for concluding that they are in fact public officers. Ops. S.C. Atty. Gen., June 11, 1984; June 14, 1973. However, we noted numerous factors indicating that poll managers serve as officers in our October 25, 1984 op1mon. Thepositionofpollmanagerisestablished by Section 7-13-70, Code of Laws of South Carolina (1976), and poll managers are appointed by county election commissioners. Section 7-13-70 also specifies an oath which must be taken, subscribed, and filed with the Clerk of Court in the appropriate county; the managers also take and sign an additional oath specified in Section 7-13-100 prior to opening the polls. By Section 7-13-140, poll managers are given police power to maintain order at the polls and to enforce obedience to their lawful commands. Poll managers receive a per diem of$25.00. See Act No 512, Part I, § 13, 1984 Acts and Joint Resolutions. Clearly, a poll manager is a public officer. Op. S.C. Atty. Gen. October 25, 1984. While some ofthe statutes cited above have been renumbered and the per diem currently paid to poll managers has increased, we find no changes in the law relied upon in our previous opinion.

Ms. McCormac
Page 3
August 19, 2009

Accordingly, we continue to opine that poll managers are office holders for purposes of dual office holding. Thus, to answer your questions, a member of a municipal council cannot serve as a poll manager in any election because by serving in both capacities, the municipal council member would be holding two offices at the same time in violation of article XVII section IA of the Constitution. You also ask whether our opinion would change if the municipal councilmember declined payment for his or her service as a poll manager or clerk. While compensation is one factor considered when determining whether an individual holds an office, it is not the only factor. With regard to poll managers and clerks, as expressed in our previous opinions, we believe the fact that they must subscribe to an oath, are appointed as provided by statute, and they exercise a portion of the sovereign power of the State causes them be considered an officer for purposes of dual office holding. Thus, we do not believe a poll manager's or clerk's decision to decline payment would remove them from being considered office holders. Therefore, declining payment would not allow them to serve as a poll manager or clerk when they are otherwise prohibited from serving due to the prohibition on dual office holding.

Conclusion
While we do not find any provisions in the law governing municipal and other elections indicating that a member of a municipal council cannot serve as a poll manager or clerk, we believe that such an individual would be prohibited from serving in both capacities due to the prohibition on dual office holding found in our State Constitution. Very truly yours, Henry McMaster Attorney General

By:

REVIEWED AND APPROVED BY:

Deputy Attorney General

Cydney M. Milling
Assistant Attorney General