Could the two Spartanburg applicants, a sheriff’s code enforcement officer and a state trooper, also serve as fire district commissioners?

Official title

As to whether two applicants—one employed as a Code Enforcement Officer for the Spartanburg County Sheriff’s Department and another employed as a State Trooper at the South Carolina Department of Public Safety—would be permitted to serve as a fire commissioner on a Special Purpose Fire District given the South Carolina Constitution’s prohibition on dual office holding.

Requester

The Honorable Shane Martin, Delegation Chairman, Spartanburg County Legislative Delegation

Plain-English summary

In 2013, the Attorney General concluded that a Spartanburg County sheriff's code enforcement officer and a state trooper each held an office for purposes of South Carolina's constitutional rule against holding two public offices at once. The office had also treated a fire commissioner as an office holder. On those premises, either applicant's service as a special purpose fire district commissioner would have violated Article XVII, Section 1A.

Currency note

This opinion was issued in 2013. 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: Why did the opinion treat these jobs as public offices?
A: It relied on prior Attorney General opinions treating code enforcement officers, state troopers, and fire commissioners as office holders. The opinion described a public office as one with continuing duties that exercise some of the state's sovereign power.

Q: Did the constitutional exception for fire department members cover fire commissioners?
A: The opinion quoted an exception for members of a lawfully and regularly organized fire department, but still concluded that the two applicants could not serve as fire commissioners. It did not apply that exception to commission membership.

Q: Did the opinion decide whether any employee could serve on a fire commission?
A: No. Its conclusion concerned the two applicants described in the request: a sheriff's code enforcement officer and a state trooper.

Background and statutory framework

Article XVII, Section 1A prohibited simultaneous service in two offices of honor or profit, subject to the exceptions quoted in the opinion. The Attorney General used the public office test described in Sanders v. Belue and prior opinions addressing each of the three positions. It said prior office opinions would not be overruled absent clear error or a change in applicable law.

Citations and references

• South Carolina Constitution, Article XVII, Section 1A, as quoted in the opinion.
• Sanders v. Belue, 78 S.C. 171, 174, 58 S.E. 762, 763 (1907).

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/july-19-2013/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/07/martin-s-os-9633-7-19-13-dual-office-holding.pdf

Original opinion text

ALAN WILSON

AITORNEY GENERAL

July 19, 2013

The Honorable Shane Martin
Delegation Chairman
Spartanburg County Legislative Delegation
366 N. Church Street, Room 1210
Spartanburg, SC 29303
Dear Senator Martin:

In your June 24, 2013 letter you request an opinion from this office as to whether two applicants- one employed as a Code Enforcement Officer for the Spartanburg County Sheriffs Department and another employed as a State Trooper at the South Carolina Department of Public Safety- would be permitted to serve as a fire commissioner on a Special Purpose Fire District given the South Carolina Constitution's prohibition on dual office holding. Law/Analysis

Article XVII, Section 1A of the South Carolina Constitution explains, '·no person may
·hold two offices of honor or profit at the san1e time ... ," with exceptions specified for "an officer in the militia, member of a lawfully and regularly organized fire department, constable, or a notary public." This provision is violated when a person concurrently holds two public offices with duties involving an exercise of some portion of the sovereign power of the State. Sanders v. Belue, 78 S.C. 171, 174, 58 S.E. 762, 763 (1907). In determining whether an office is public, and thus whether its' occupant constitutes a public officer, South Carolina Courts have explained: "[o]ne who is charged by law with duties involving an exercise of some part of the sovereign power, either small or great, in the perfonnance of which the public is concerned, and which are continuing, and not occasional or intermittent, is a public officer.'' Id., 58 S.E. 762-63. Other relevant considerations for such a determination include: "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, 478, 266 S.E.2d 61 , 6~ (1980).

R EMBERT

c. D ENN IS BUILDING • POST O FFICE Box I 1549 • C OLUMBIA, SC 29211 -1549

0

TELEPHONE 803-734-3970

•

FACSIMILE 803-253-6281

The Honorable Shane Martin
Page 2
July 19, 2013

In previous opinions from this Office, we have advised that a Code Enforcement Officer is an office holder for purposes of dual office holding.1 Additionally, both this Office2 and the Supreme Court of South Carolina3 have opined that a State Trooper is an office holder for dual office holding purposes. Our Office has also concluded that an individual serving as a fire commissioner, or serving as a member of a fire commission, would be an office holder for purposes of dual office holding.4 Moreover, this Office will not overrule a prior opinion unless it is clearly erroneous or a change occurred in the applicable law. Ops. S.C. Atty. Gen., 2009 WL 959641 (March 4, 2009); 2006 WL 2849807 (September 29, 2006); 2005 WL 2250210 (September 8, 2005); 1986 WL 289899 (October 3, 1986); 1984 WL 249796 (April 9, 1984). As a result, it is this Office's opinion that both of the applicants referenced in your letter would offend Article XVII, Section lA's dual office holding provision were they to serve as commissioner of a Special Purpose Fire District. 1

See Op. S.C. Attv. Gen., 2012 WL 5376055, n. I (October I 9, 2012) (detailing Code Enforcement Officers exercise police powers meaning they are an officer for dual office holding purposes); Op. S.C. Atty. Gen., 2012 WL 11 54553 (March 27, 20 12) (stating that both a county and municipal Code Enforcement Officer would be an office holder for dual office holding purposes); Inf. Op. S.C. Atty. Gen., 2001 WL265263 (February 9, 2001) (concluding a county Code Enforcement Officer is an office holder for dual office holding purposes, despite the fact constables are excluded from Art. XVII, § I's dual office holding provision); lnf. Op. S.C. Atty. Gen., 1998 WL 62947 (January 6, 1998) ("This Office has previously concluded that a county code enforcement officer would be considered an office holder for dual office holding purposes."); Inf. Op. S.C. Atty. Gen., 1997 WL 568835 (July 10, 1997) (noting a Code Enforcement Officer is an office holder for dual office holding purposes); Inf. Op. S.C. Atty. Gen., 1997 WL 255969 (April 24, 1997) (" We have concluded that a Code Enforcement Officer is an ' officer' for dual office holding purposes."); Inf. Op. S.C. Atty . Gen., 1997 WL 255956 (April 9, 1997) (analyzing the South Carolina Code and determining a county code enforcement officer is an office holder because the officer exercises the traditional sovereign power of the State, specifically the police power); Op. S.C. Atty. Gen ., 1994 WL 703272 (November 2, 1994) ("I must advise that a mayor or council member would be prohibited from serving as a police officer, police chief, or code enforcement officer during the term for which he was elected, due to the applicable statutory and constitutional prohibitions discussed above."). 2 See u Op. S.C. Atty. Gen., 20 12 WL 4836949 (October 2, 2012) (noting a State Trooper is an officer holder for purposes of dual office holding); Op. S.C. Atty. Gen., 2011 WL 3346425 (July 8, 20 I I) (stating a state trooper or highway patrolman is an office holder for purposes of dual office holding); Inf. Op. S.C. Atty. Gen., 1999 WL 540716 (June 21, 1999) ("We have also concluded that a highway patrolman holds an office for dual office holding purposes."); Op. S.C. Atty. Gen., 1982 WL 189467 (October 19, 1982) (concluding highway patrolmen are considered officers under Art. XVII , § 1A of the South Carolina Constitution ); Op. S.C. Atty. Gen., 1982 WL 189462 (October 14, 1982) (opining highway patrolmen are considered officer for dual office holding purposes). 3 See State v. Bridges, 329 S.C. 11 , I 6, 495 S.E.2d 196, 199 (1997) ("(W]e hold that Highway Patrol officers and troopers are ' public officials.'"). 4 See Op. S.C. Atty. Gen., 2009 WL I 968630 (June 23, 2009) (''This office has in prior opinions concluded that a member of a fire comm ission board is an officer for dual office holding purposes."); Op. S.C. Atty. Gen., 2008 WL 5476550 (December 5, 2008) (concluding a member of a fire commission board is an office for dual office holding purposes); Op. S.C. Atty. Gen., 2004 WL 439328 (March 3, 2004) ("[T]his office has also opined in other specific instances that commissioners for local fire control districts ho ld offices for dual office holding purposes."); Op. S.C. Atty. Gen., 1994 WL 50434 (January 19, 1994) (" (W]e are of the opinion that members of the governing body of the Cherokee Springs Fire District would be considered office holders for purposes of dual office holding."); Op. S.C. Atty. Gen ., 1983 WL 182083 (December 29, 1983) (opining that a member of the Anderson County Fire Commission would be an office holder for dual office holding purposes); Op. S.C. Atty. Gen., 1972 WL 20449 (May 9, 1972) (finding an individual's membership on a fire commission would render that individual an officer holder for purposed of dual office holding).

The Honorable Shane Martin
Page 3
July 19, 2013

Conclusion

In conclusion, our previous opinions have determined Code Enforcement Officers, State Troopers and Fire Commissioners are each office holders for purposes of dual office holding. Furthermore, our Office has explained it will not overrule a prior opinion unless it is clearly erroneous or a change occurred in the applicable law. Accordingly, it is this Office's opinion that both of the applicants referenced in your letter would offend Article XVII, Section 1A's prohibition on dual office holding provision were they to serve as commissioner of a Special Purpose Fire District. Sincerely,

Brendan McDonald
Assistant Attorney General
REVIEWED AND APPROVED BY:

/'
/
!/z i·(P.:
·,!iiz/i·
Robert D. Cook
Solicitor General