Could a South Carolina Transport Police officer teach a technical college driving course under contract in 2004?

Plain-English summary

In January 2004, South Carolina’s Attorney General concluded that a State Transport Police officer could teach driving-defense courses at Florence-Darlington Technical College under a contract without violating the state constitutional prohibition on holding two public offices. The teaching role was an employee or contract position, not a second public office.

The opinion did not decide whether Department of Public Safety policies or other rules allowed the arrangement. It directed the officer to consult that department about those separate limits.

Currency note

This opinion was issued in 2004. 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.

Historical summary

Transport Police officers

The AG did not need to decide whether a Transport Police officer held a public office. Even if that were so, the proposed technical-college teaching position was not an office under the office’s earlier view of instructors at technical centers. A contract to teach reinforced that conclusion.

Technical colleges

The opinion treated an instructor’s work as employment rather than an exercise of the sovereign powers that would make the position an office for this constitutional rule.

Common questions

Would the teaching contract itself create a second public office?
No. The AG said teaching at the technical college under contract did not make the instructor a public officer for dual office holding purposes.

Did the opinion decide whether the officer’s agency permitted outside teaching?
No. It said the officer needed to consult the Department of Public Safety about internal policies and applicable rules or regulations.

Did the AG decide whether every Transport Police officer was a public officer?
No. The answer did not require a final decision on that question because the teaching position was not a second office.

Background and statutory framework

The South Carolina Constitution barred simultaneous holding of two offices of honor or profit, subject to specified exceptions. The AG cited the sovereign-power test for identifying an office, noted Transport Police enforcement authority, and relied on a prior opinion classifying technical-center instructors as employees.

Citations and references

The opinion discussed the South Carolina Constitution’s dual office provision, S.C. Code Ann. Section 58-23-1120, and its April 21, 1971 opinion on technical-center instructors.

Official title

“in reference to a question concerning dual employment.” Specifically, can a State of South Carolina Transport Police Officer, also be able to teach driving defense courses at Florence Darlington Technical College on a contract basis?”

Requester

The Honorable Maggie W. Glover, Member, SC Senate

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/january-28-2004/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/04jan28glover.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
HENRY McMAsn:R
ATfORNEY GENERAL

January 28, 2004

The Honorable Maggie W. Glover
Senator, District No. 30
P. 0. Box 142
Columbia, South Carolina 29202
Dear Senator Glover:
You seek an opinion "in reference to a question concerning dual employment." Your question is as follows:
[c]an a State of South Carolina Transport Police Officer, also be able to teach driving defense courses at Florence Darlington Technical College on a contract basis? I need to know if this would be acceptable or if it would be considered dual employment.

Law I Analysis
Article XVII, Section lA of the State 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, member of a lawfully and regularly organized fire department, constable, or notary public. For this provision to be contravened, a person concurrently must hold two offices which have duties involving an exercise of some portion ofthe sovereign power ofthe 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 has not addressed the question ofwhether a Transport Police Officer is an officer for dual office holding purposes. S.C. Code Ann. Section 58-23-1120 bestows upon the Transport Police the "exclusive authority in this State for the enforcement of the commercial motor vehicle carrier laws, which include Federal Motor Carrier Safety Regulations, Hazardous Material Regulations, and size and weight laws and regulations." It is our understanding that a Transport Police officer holds a constable's commission as a basis for law enforcement authority. Ifso, these individuals would not be considered "officers" for dual office holding purposes. See, Art. XVII, § IA.

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POST 0mcE Box 11549 • CoUJMBV., S.C. 29211-1549 • Tl:l.El>HONE: 803-734-3970 • FACSIMILE: 803-253-6283

The Honorable Maggie W. Glover
Page2
January 28, 2004

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However, we do not need to reach the issue of whether a Transport Police officer holds an office for dual office holding purposes. In an opinion dated April 21, 1971 (Op. No. 3121), we concluded that instructors at Technical Centers do "not come within the constitutional or the case law prohibition [against dual office holding], as the position of an instructor is primarily that of an employee, rather than that of a State officer." Moreover, if the individual in question teaches at TEC pursuant to a contract, such individual would not, for that reason as well, hold an office for dual office holding purposes. Accordingly, we see no dual office holding prohibition involved in the
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situation presented by you.
In terms of any other prohibition, the individual would need to consult with the Department of Public Safety to determine whether such teaching position or contract is in any way prohibited by that agency's internal policies or by applicable state rules or regulations. In conclusion, it is our opinion that simultaneously holding the position of State Transport Police officer and teaching at Florence-Darlington TEC pursuant to contract is not violative of the dual office holding prohibitions contained in the South Carolina Constitution.

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Robert D. Cook
Assistant Deputy Attorney General
RDC/an

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