Could Kershaw County's treasurer also serve as interim county administrator?

Plain-English summary

In 2011, Kershaw County's elected treasurer and delinquent tax collector asked whether he could also serve as interim county administrator. The South Carolina Attorney General concluded that simultaneously holding those positions would violate the state constitution's dual office holding prohibition. The office treated the treasurer and tax collector role as one public office and the administrator position in a council-administrator county as another. The temporary label did not change that analysis.

The opinion acknowledged a boundary: assigning more duties to an existing office does not by itself create a second office. The AG said the facts supplied described actual service in both offices for an indeterminate period, while noting that its office did not resolve factual disputes.

Currency note

This opinion was issued in 2011. 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

Did calling the administrator appointment “interim” avoid the dual office rule? A: The AG said no. Its earlier analysis of county treasurer and interim county administrator still applied to this proposed arrangement.

What made these positions public offices under the opinion? A: The AG said both had continuing duties involving an exercise of some state sovereign power. It also relied on prior opinions about county treasurers, tax collectors, and administrators.

Would adding administrator duties to a treasurer's existing office always create a second office? A: No. The opinion said mere assignment of additional duties would not create one, but it read the request as describing actual holding of two offices.

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 the exceptions it listed. The AG applied prior opinions involving county administrators and treasurers, and noted the potential for frequent conflicts of interest in the dual roles described.

Citations and references

The opinion discussed Article XVII, Section 1A of the South Carolina Constitution and cited Sanders v. Belue and State v. Crenshaw on the public office test.

Official title

Concerning dual office holding. Specifically, “whether the duly elected Kershaw County Treasurer and Delinquent Tax Collector may concurrently serve as the interim Kershaw County Administrator without violating the dual office holding prohibition of the State constitution or other applicable laws.

Requester

Stephen D. Vincent, Kershaw County Treasurer and Delinquent Tax Collector

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/january-25-2011/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/vincent-s-d-os-9180-1-25-11-dual-office-holding1.pdf

Original opinion text

ALAN WILSON

A1TORNEY G ENERAL

January 25, 2011
Stephen D. Vincent
Kershaw County Treasurer and
Delinquent Tax Collector
PO Box 622
515 Walnut Street
Camden, SC 29020
Dear Mr. Vincent:
We received your 1.etter requesting an opinion of this Office concerning dual office holding. You asked "whether the duly elected Kershaw County Treasurer and Delinquent Tax CoUector may concurrently serve as the interim Kershaw County Administrator without violating the dual office holding prohibition of the State constitution or other applicable laws."

LawIAnalysis
Article XVIl, Sec. IA of the South Carolina Constitution provides that" ... no person shall 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 reguarly organized fire department, constable, or a notary public." For this provision to be contravened, a person concurrently must hold two public 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). "One who is charged by law with duties involving an exercise of some part of the sovereign power, either small or great, in the performance of which the public is concerned, and which are continuing, and not occasional or intermittent, is a public officer." Id., 58 S.E. 762, 763. Other relevant considerations are whether statutes, or other such authority, establish the position, prescribe its tenure, 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). One should note that "where a person holding one office oftrust or profit is elected or appointed to another such office, and qualifies in the latter capacity, he thereby vacates the first office to which he was elected or appointed, and lawfully holds the second office." Op. S.C. Atty. Gen., September 12, 1996 (citing Walker v. HatTis, 170 S.C. 242, 170 S.E. 270 (1933)). This Office has previously held that "the position of county treasurer is a public office having many duties involving an exercise of some portion of the sovereign power of the State." Ops. S.C. Atty. Gen., July 30, 2007; January22, 1993; September 12, 1996; S.C. Code§ 12-45-10 et seq. This Office R EMBERT

c. DENNIS BUil.DING • POST OFl-lCE Box I ]549 • COUJMBIA, SC 2921 1-1549 • 'fELEPJIONE 803-734-3970 • FACSIMILE 803-253-6283

Mr. Vincent
Page 2
January 25, 2011
has also consistently opined that a county tax collector holds an office for dual office holding. Ops. S.C. Atty. Gen., October 3, 2003; July 13, 1988; March 10, 1980; April 30, 1979. Since the position of county treasurer, or in this instance the combined role of County Treasurer and Delinquent Tax Collector, would likely be considered an office for dual office holding purposes, it is necessary to address whether serving as interim Kershaw County Administrator would constitute an office for the purposes of Article XVII, Section 1A. This Office has advised previously that one who serves as a county administrator for a county in which the council-administrator form of government has been properly adopted, would hold an office for dual office holding purposes. Op. S.C. Atty. Gen., September 12, 1996. The request letter mentions that Kershaw county operates under the council-administrator form of government. The opinion written by this Office on September 12, 1996 specifically addresses whether one may serve as county treasurer and interim county administrator; I will enclose the opinion for your convenience. Consistent with the prior opinion, this Office concludes that the dual office holding prohibition is still applicable in this instance even though service as county administrator is for an interim period oftime. However, we acknowledge that "the mere assignment of additional duties to an already-existing office would not create a second office." Op. S.C. Atty. Gen., September 12, 1996. This Office is not a fact finding entity; "investigations and determinations of facts are beyond the scope of an opinion of this Office and are better resolved by a court." Ops. S.C. Atty. Gen., September 14, 2006; April 6, 2006. Nevertheless, from information provided in the request letter, the County Treasurer does not appear to merely be clothed with additional duties; there is an actual holding of both offices for an indeterminate period oftime. Conclusion Consistent with our prior opinions, it is the opinion of this Office that simultaneously holding the positions of County Treasurer and Interim County Administrator would constitute dual office holding in contravention of Article XVII, Section IA of the South Carolina Constitution. Each position has continuing duties involving an exercise of some portion of the sovereign power of the State. Additionally, service in these dual capacities carry the potential to generate frequent conflicts of interest. Sincerely,

~~fy(a0~
Leigha ~lackwell
Assistant Attorney General

REVIEWED AND APPROVED BY:

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Robert D. Cook
Deputy Attorney General