Could a Dillon County council member also chair the county Democratic Party?

Plain-English summary

The chair of the Dillon County Democratic Party asked whether he could also hold a vacant seat on Dillon County Council. The AG concluded that simultaneous service would not violate Article XVII, section 1A of the South Carolina Constitution. It treated county council membership as a public office but said a county political party officer was not an office under the constitutional dual-office test.

The opinion explained that the prohibition applied when a person held two offices involving the exercise of state sovereign power. It relied on earlier AG opinions consistently treating council seats as offices and local party positions as something different. It addressed the dual-office constitutional question, rather than every possible party or election rule governing a candidate.

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

Q: Did the AG treat a county council seat as an office?
A: Yes. It cited earlier opinions holding that county council members occupied offices for dual-office purposes.

Q: Did chairing a county political party count as a second public office? A: The AG said no. An officer of a local political party did not hold an office under that constitutional rule.

Q: Did the opinion decide every eligibility rule for running for council? A: No. Its answer concerned the state constitutional prohibition on holding two offices at the same time.

Background and statutory framework

Article XVII, section 1A barred simultaneous holding of two qualifying offices. The AG described sovereign powers and statutory creation or duties as factors for identifying an office. Its earlier opinions placed county council service within that category and local party leadership outside it, producing the narrow result for this requester.

Citations and references

• Article XVII, section 1A: the constitutional dual-office provision discussed in the opinion.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/january-18-2008/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/moultrie-j-e-os-8534-1-18-08-dual-office-holding.pdf

Original opinion text

January 18, 2008

Mr. James E. Moultrie
134 Grove Street
Dillon, South Carolina 29536
Dear Mr. Moultrie:
In a letter to this office you indicated that you are presently serving as chairman of the Dillon County Democratic Party. You indicated that you are interested in running for a vacant seat on the Dillon County Council. You have questioned the legality of your holding both positions. Article XVII, section 1A of the South Carolina Constitution (Supp. 2006) 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 provision, 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). This office has concluded on numerous occasions that a position on a county council is an office for dual office holding purposes. See: Ops. Atty. Gen. dated October 22, 2007; January 18, 2006; and November 2, 2005. This office has also consistently advised that an officer of a local political party does not hold an office for dual office holding purposes. See: Ops. Atty. Gen. dated December 15, 2003; July 29, 1986; March 23, 1982. Accordingly, in the opinion of this office an elected officer of a county political party could serve simultaneously on the county council without violating the dual office holding prohibition of the State Constitution.

Mr. Moultrie
Page 2
January 18, 2008
With kind regards, I am,
Very truly yours,
Henry McMaster
Attorney General

By:

REVIEWED AND APPROVED BY:

______
Robert D. Cook
Assistant Deputy Attorney General

Charles H. Richardson
Senior Assistant Attorney General