Could a South Carolina mayor or council member take leave from a volunteer fire department to avoid an office conflict?

Plain-English summary

A town attorney asked whether a mayor or council member could take leave from volunteer fire service during an elected term instead of leaving either role. In 1996, the AG said a leave would not solve the conflict identified in earlier opinions. A leave suspended duties temporarily but kept the relationship with the fire department in place, so it did not accomplish the separation the earlier opinions required.

The opinion concerned Batesburg-Leesville under its council-manager form of government and built on the office’s December 1995 conclusions. It did not undertake a fresh analysis of every other town’s charter or every kind of fire-service arrangement.

Currency note

This opinion was issued in 1996. 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 unpaid leave end the fire-department relationship?

The AG said no. It treated leave as temporary and understood the underlying relationship to continue.

Could a mayor retain the fire role on leave for the entire elected term?

The opinion said that arrangement would not remove the conflict found in its earlier analysis of the town’s officials.

Did the AG reach this result only because leave was reviewed every 90 days?

No. Its reasoning centered on continued status during leave, regardless of periodic review.

Background and legal framework

Earlier AG opinions had interpreted municipal statutes to prohibit the town’s mayor or council members from serving as volunteer firefighters during their elected terms. The follow-up opinion used the legal meaning of leave as a temporary absence and reasoned that an indirect arrangement could not preserve the conflicting relationship.

Citations

• §§5-7-180; 5-13-40(a).
• State ex rel. Edwards v. Osborne.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/january-8-1996/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/12/96jan8hendrix.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLES MOLONY CONDON
A'ITORNEY GENERAL

January 8, 1996

Jonathan R. Hendrix, Esquire
·Attorney, Town of Batesburg-Leesville
Post Office Box 1263
Lexington, South Carolina 29072
RE: Informal Opinion
Dear Mr. Hendrix:
By your letter of December 8, 1995, to Attorney General Condon, you have sought an opinion to follow up on IT1Y infonnal opinions of December 6, 1995, relative to the Mayor of Batesburg-Leesville or members of the Town Council serving simultaneously as a .volunteer fireman for the Town. You are now inquiring as to whether a leave of absence from the fire department would take away the necessity for the council members or Mayor to either resign from office or resign from the fire department. You state your understanding that the fire department's policies and procedures manual does provide for a leave of absence, which leave would be reviewed every ninety days but does not otherwise have a limitation on it. The opinions of December 6, 1995, concluded that a mayor or member of the municipal council of the Town of Batesburg-Leesville would be prohibited from serving as volunteer firemen during the tenn for which they were elected, by operation of S.C. Code Ann. §§5-7-180 and 5-13-40(a), for the reasons stated therein. The concept of a "leave of absence" from employment has been succinctly summarized in 63A Am.Jur.2d Public Officers and Employees § 180: The term "leave of absence" does not mean a permanent separation from employment. Rather, it signifies a temporary absence from duty with an intention to return, during which time remuneration is suspended. The RI0~18ERT

c. DENNIS BUILDING

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POST OFFICE B o x 11549

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C OLUMBIA.

s.c. 292 I1- 1549

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TELEPHONE:

803-734-3970

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FACSIMIL E: 803-253-6283

Jonathan R. Hendrix, Esquire
Page 2
January 8, 1996
relationship of public employer and public employee would therefore c~ntinue during the period of leave except for suspension of his obligation to carry out the duties of his work and the compensation therefor. It is clear that the relationship of employer-employee would continue should a public employee take a "leave of absence," according to this summarization of the law. An act which cannot be done directly cannot be done indirectly. State ex rel. Edwards v. Osborne, 193 S.C. 158, 7 S.E.2d 526 (1940); Lurey v. Citv of Laurens, 265 S.C. 217, 217 S.E.2d 226 (1975); Westbrook v. Hayes, 253 S.C. 244, 169 S.E.2d 775 (I 969). Having concluded that a mayor or member of cmmcil under the council-manager form of municipal government could not serve as a volunteer fireman for the municipality during the term for which he was elected (i.e., a direct act), I am also of the opinion that the same individuals could not take a "leave of absence" during the term for which he or they were elected, as the same result would indirectly be achieved in that the emplo~ent status would not be totally severed. Therefore, in response to the question which your most recent letter has raised, I am of the opinion that taking a "leave of absence" would not solve the problems identified in my opinions of December 6, 1995. This letter is an infonnal opinion only. It has been written by a designated Senior Assistant Attorney General and represents the position of the undersigned attorney as to the specific questions asked. It has not, however, been personally scrutinized by the Attorney General nor officially published in the manner of a formal opinion. I trust that it has satisfactorily responded to your inquiry. With kindest regards, I am Sincerely,

~,/).~
Patricia D. Petway
Senior Assistant Attorney General