Could a Loris city council member also serve as the city’s volunteer fire chief or firefighter?

Plain-English summary

The City of Loris asked whether its fire chief or a volunteer firefighter could simultaneously sit on city council. In 2015, the Attorney General predicted that a court would find either arrangement violated the statute barring council members from other municipal office or employment. Although the state constitutional prohibition on dual office holding did not apply to these fire roles, the separate employment rule did.

The AG focused on the council's supervisory role. The council appointed the fire chief, determined the volunteer department's size and set compensation for calls. The opinion said a person on council who also served in the department would occupy both supervisory and subordinate roles. It also said a violation of the municipal employment provision was grounds for forfeiture of the council office.

Currency note

This opinion was issued in 2015. 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 the constitutional dual office holding rule bar this combination of roles?
A: The AG said fire chiefs and firefighters were exempt from that prohibition, but analyzed the separate municipal employment statute.

Q: Did calling the firefighters volunteers change the statutory result?
A: No. The AG said the title “volunteer” did not by itself prevent a firefighter from being treated as a municipal employee.

Q: Why did the fire chief role create a conflict?
A: The city council appointed and supervised the chief. A council member serving as chief would be in a position of supervisory authority over that member's other role.

Q: What consequence did the opinion identify for a council member who violated the statute?
A: It said such a violation would constitute grounds for forfeiture of the council office under the cited municipal provision.

Background and statutory framework

The opinion distinguished the state constitution's dual office rule from the statute prohibiting a mayor or council member from holding other municipal office or employment. It applied the latter to the Loris ordinance's appointment and control of the volunteer fire department, using the common-law master-servant principle.

Citations and references

• The AG predicted that dual service “would create a master-servant conflict of interest and would violate S.C. Code Ann. § 5-7-180.”
• It added that such a violation “would constitute grounds for forfeiture” of municipal office.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/december-16-2015/
• Original PDF: https://www.scag.gov/wp-content/uploads/2015/12/Battle-M.-OS-9992-FINAL-Opinion-12-16-2015-00822747xD2C781.pdf

Original opinion text

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Alan Wilson

December 16, 2015

Attorney General

Mr. Michael W. Battle, Esq.

City Attorney for the City of Loris
Post Office Box 530
Conway. South Carolina 29528
Dear Mr. Battle:

You have requested clarification on whether S.C. Code Ann. § 5-7-180 (2004 & Supp. 2014) prohibits the Fire Chief or member of the City of Loris Volunteer Fire Department from simultaneously serving as a member of the Loris City Council.

While you acknowledge that our

Office has previously written on this subject, you provide that one of the prospective council members believes that the South Carolina Attorney General has issued an opinion to the effect that council members may simultaneously serve on city council and as a volunteer for the fire department of the same city. Accordingly, clarification follows. Law / Analysis

Although you have not asked for further explanation as to whether service as a fire chief or volunteer member of the fire department at the same time as service on city council would violate the prohibition against dual office holding as set forth in Article XVII, section 1A of the South Carolina Constitution, we nevertheless reiterate our opinion that "members of a fire department, in their capacity as fire chief, assistant fire chief, or firefighters'" are exempted "from the dual office holding prohibition." Op. S.C. Att'v Gen.. 2012 WL 3142775 (July 19. 2012). While the dual office holding prohibition is not violated, as you recognize, statutory law must also be considered.

S.C. Code Ann. § 5-7-180 provides that "[ejxeept where authorized by law, no mayor or councilman shall hold any other municipal office or municipal employment while serving for the term for which he was elected." S.C. Code Ann. § 5-7-180 (2004 & Supp. 2014).

Pursuant to

S.C. Code Ann. § 5-7-200(a), a violation of Section 5-7-180 constitutes grounds for forfeiture of the office of mayor or councilman. See S.C. Code Ann. § 5-7-200(a) (2004 & Supp. 2014): see

also Op. S.C. Att'v Gen.. 2012 WL 1036294 (March 20. 2012) ("We further note that under section 5-7-200(a). a violation of section 5-7-180 constitutes grounds for forfeiture of the office of mayor or councilman of a municipality"). In an opinion dated May 27, 2015. we discussed Section 5-7-180. and whether it would be violated, in the context of a similar situation of simultaneous service as mayor and chief of a fire department. Op. S.C. Att'v Gen.. 2015 WL 3533915 (May 27, 2015).

In our discussion, we

recognized that Section 5-7-180 "is. in part, designed to address the common law principle that one cannot be both master and servant at the same time." Id. at *2 (quoting Op. S.C. Att'v Gen..

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Mr. Michael W. Battle, Esq.
Page 2
December 16, 2015

2013 WL 5921571 (Sept. 9, 2013); Op. S.C. Att'v Gen.. 2004 WL 1 182071 (May 21, 2004)). In regards this common law principle, we further explained that: A conflict of interest exists when one individual is both master and servant. The master-servant relationship is based on common law and may be summarized as

follows:
[A] conflict of interest exists where one office is subordinate to the other, and

subject in some degree to the supervisory power of its incumbent, or where the

incumbent of one of the offices has the power of appointment as to the other office, or had the power to remove the incumbent of the other or to punish the other. Furthermore, a conflict of interest may be demonstrated by the power to regulate the compensation of the other, or to audit his accounts. Id, (quoting Op. S.C. Att'v Gen.. 2012 WL 889084 (March 5, 2012); Op. S.C. Att'v Gen.. 2003

WL 21040130 (Feb. 19, 2003)).

The City of Loris has implemented a council form of government. See Loris, SC, City of Loris Code art. I, § 2-1 ("Pursuant to S.C. Code 1976, § 5-11-10 et seq., the form of government for the city shall be the council form of government").

Under a council form of government,

council - that can be made up of five, seven, or nine members, including the mayor - exercises all legislative and administrative functions of the city and establishes all departments, offices,

and agencies of the municipality. See S.C. Code Ann. §§ 5-11-20, 5-11-30, 5-11-40 (2004). Furthermore, all departments, offices, and agencies may be administered by an officer appointed

by and subject to the direction and supervision of the council and council is responsible for adopting a balanced operating budget. S.C. Code Ann. § 5-1 1-40 (2004 & Supp. 2014).

Specifically in regards to the volunteer fire department established by the City of Loris, from the applicable portions of the Loris City Code that you have provided us with a copy of, the Fire Chief is appointed by City Council. Loris, SC, City of Loris Code art. Ill, § 20-62 ("There shall be appointed by council at the time appointed for the regular election by the council of city officers, an officer whose designation shall be chief of the volunteer fire department and whose term of office shall be for one year or until his successor is duly appointed and qualified. The election shall be by ballot and determined by the majority of the votes cast"). Furthermore, it is also at the discretion of City Council as to how many members shall serve on the volunteer fire department as well as how much compensation members are to receive for each fire call answered. Loris, SC, City of Loris Code art. Ill, § 20-64 ("The volunteer fire department of the city shall consist of as many members as the council deems necessary, including the chief and the assistant chief'); Loris, SC, City of Loris Code art. Ill, § 20-67 ("The members of the volunteer fire department, including the chief and assistant chief, shall receive no salary as such, but the fire department shall receive compensation for each fire call actually answered and in the amount for each call council may determine"). From the aforementioned authority, it is our belief that a court would find simultaneous service as a Fire Chief for the City of Loris or as a member of the City of Loris' Volunteer Fire Department would create a master-servant conflict of interest and a violation of S.C. Code Ann.

Mr. Michael W. Battle, Esq.
Page 3
December 16. 2015

§ 5-7-180. In regards to the position of Fire Chief, as noted above, the Fire Chief is appointed by

City Council.

Furthermore, pursuant to S.C. Code Ann. § 5-1 1-40, the Fire Chief is subject to

the direction and supervision of City Council.

City Council also determines the number of

members that will make up the volunteer lire department as well as controls the amount of compensation that the volunteer lire department will receive for lire calls answered.

We have also "repeatedly opined that volunteer firemen are municipal employees for

purposes of Section 5-7-180 such that a mayor or councilmember of a municipality is prohibited from holding that such a position." Op. S.C. Att'v Cien.. 2012 WL 1036294 (March 20. 2012) (citing Ops. S.C. Att'v Gen.. 1996 WL 82889 (January 8. 1996); 1995 WL 810372 (December 6. 1995); 1982 WL 189415 (September 7, 1982); 1979 WL 43509 (August 8, 1979)).

As we

explained in our May 27. 2015 opinion, the Supreme Court in Miller v. Town of Batesbura held that "a volunteer fireman was an employee of the Town of Batesburg subject to dismissal by the

mayor in a mayor-council form of government because he was paid a nominal sum for his

services, provided with a small life insurance policy and workers' compensation insurance, and allowed to use equipment owned by the town." Op. S.C. Att'v Gen.. 2015 WL 3533915 (May

27. 2015) (discussing Miller v. Town of Batesburg. 273 S.C. 434. 257 S.E.2d 159 (1979)).

In

light of this conclusion, we explained that simply "labeling a fireman as a "volunteer" does not prevent him from being an employee of the town. Id. at *4.

Under similar analysis applied by

the Supreme Court in Miller, we believe it is likely a eourt would find a councilmember in a

council form of government, in his capacity as a volunteer fireman or as fire chief, would be considered an employee of the City of Loris. Conclusion

In light of the foregoing analysis, it is the opinion of this Office that a court would likely

find simultaneous service as a Loris City Councilmember and as a member of the Volunteer Fire Department of the City of Loris or as Fire Chief for the City of Loris Volunteer Fire Department would create a master-servant conflict of interest and would violate S.C. Code Ann. § 5-7-180.

If it is determined a councilmember has violated Section 5-7-180, pursuant to S.C. Code Ann. § 5-7-200(a). such violation would constitute grounds for forfeiture of the office of councilmember of the municipality.

Very truly yours.

Anne Marie Crosswell
Assistant Attorney General

REVIEWED AND APPROVED BY:
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Robert D. Cook

Solicitor General