Could an Anderson County fire protection commissioner also serve on the county council?

Plain-English summary

Anderson County's fire protection commission asked whether one of its members could also sit on the county council. The South Carolina Attorney General's office concluded in 2008 that the combination violated the state constitution's prohibition on holding two offices of honor or profit at the same time. Earlier AG opinions had classified both a county fire commission seat, including this particular commission, and a county council seat as offices.

The opinion distinguished membership in a lawfully organized fire department, which the constitutional provision excepted, from membership on the county fire protection commission. The exception for a fire department member did not change the conclusion about a fire commissioner.

Currency note

This opinion was issued in 2008. 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

Could a fire protection commissioner serve on Anderson County Council at the same time?

The AG said no. It treated both positions as offices for the constitutional dual-office rule.

Did the exception for fire department members cover fire commissioners?

The opinion said a member of a lawfully organized fire department was distinct from a member of a county fire protection commission. It therefore did not apply that exception to the commission seat.

What made a board seat an office under the opinion?

The opinion described exercise of a portion of the state's sovereign power as the central test and mentioned supporting factors such as statutory creation, duties, pay, qualifications, and an oath. It relied on prior AG opinions classifying this fire commission seat as an office.

Background and statutory framework

Article XVII, Section 1A of the South Carolina Constitution barred simultaneous holding of two offices of honor or profit, subject to listed exceptions. The opinion cited Sanders v. Belue for the sovereign-power test and State v. Crenshaw for other indicia of public office. It relied on an earlier AG opinion specifically addressing the Anderson County Fire Protection Commission and on other opinions about county council members.

Citations and references

• Article XVII, Section 1A: constitutional dual-office prohibition.
• Sanders v. Belue, 78 S.C. 171, 58 S.E. 762 (1907): sovereign-power test.
• State v. Crenshaw, 274 S.C. 475, 266 S.E.2d 61 (1980): other office-status factors.

Official title

Questioning whether a member of the Anderson County Fire Protection Commission may also serve as a member of the Anderson County Council.

Requester

Chief Billy Gibson, Anderson County Fire Protection Commission

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/december-5-2008/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/05/gibson-b-os-8698-12-05-08-dual-office-holding.pdf

Original opinion text

HENRY M CMASTER
A ITORNEY GENERAL

December 5, 2008

Chief Billy Gibson
Anderson County Fire Protection Commission
210 McGee Road
Anderson, South Carolina 29625
Dear Chief Gibson:
In a letter to this office you questioned whether a member of the Anderson County Fire Protection Commission may also serve as a member of the Anderson County Council.

Article XVII, Section 1A 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 of the 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 concluded that a member of a fire commission board is an officer for dual office holding purposes. See: Ops. Atty. Gen. dated March 3, 2004; January 19, 1994; December 29, 1983. In particular, this office in a prior opinion dated February 3, 1975 specifically indicated that a member of the Anderson County Fire Protection Commission would hold an office for dual office holding purposes. A member of "a lawfully and regularly organized fire department", a position not considered an office for dual office holding purposes, is distinguishable from a member of a county fire protection commission. See: Op. Atty. Gen. dated March 3, 2004. In numerous other opinions, this office has also advised that a member of a county council holds an office for dual office holding purposes. See, e.g., Ops. Atty. Gen. dated March 7, 2008, January 18, 2008; November 2, 2005; March 14, 2004.

R EMBERT

c. D ENNIS B UILDING •

POST Orr1CE B ox 11 549

•

COLUMBIA , SC 29211 -1549

•

T ELEPHONE 803-734-3970

•

FACSIMILE 803-253-6283

Chief Gibson
Page2
December 5, 2008

Accordingly, in the opinion of this office, a member of the Anderson County Fire Protection Commission could not serve simultaneously on the Anderson County Council without violating the dual office holding prohibition of the State Constitution.

If there are any questions, please advise.
Very truly yours,
Henry McMaster
Attorney General

d~fl 12,cJA '---'
By:

REVIEWED AND APPROVED BY:

~P-~
Deputy Attorney General

Charles H. Richardson
Senior Assistant Attorney General