Could a Mount Pleasant police officer serve at the same time on Berkeley County Council?

Plain-English summary

A Mount Pleasant police officer also served on Berkeley County Council. The 2000 AG opinion concluded that both jobs counted as public offices under South Carolina's constitutional dual-office prohibition. Because the person held the police position first, taking the council seat automatically vacated the police office.

The opinion said the officer could continue to act as a de facto police officer until a successor was selected. It also warned that this status did not carry the full legal standing of a properly held office and that a court might question some law-enforcement actions. It did not say the council seat itself was vacated.

Currency note

This opinion was issued in 2000. 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 AG treat a police job and a council seat as two offices?
A: The opinion said both positions exercised public authority and relied on earlier AG opinions classifying police officers and county council members as officers for the constitutional rule.

Q: Which position did the officer lose when he joined the council?
A: The AG said taking the later council seat automatically vacated the previously held police office.

Q: Were the officer's actions immediately void?
A: The opinion said a de facto officer's actions were generally valid as to third parties, but cautioned that a court could find particular actions invalid.

Background and statutory framework

Article XVII, Section 1A barred simultaneous holding of two offices of honor or profit, subject to listed exceptions. The letter used Sanders v. Belue and State v. Crenshaw to explain the public-office inquiry, then applied earlier AG classifications of police officers and county council members. Its conclusion turned on the order in which the two positions were assumed.

Citations and references

• Article XVII, Section 1A, South Carolina Constitution.
• Sanders v. Belue and State v. Crenshaw, cited for the public-office test.

Official title

Asking whether a dual office holding situation exists if a police officer for the Town of Mount Pleasant simultaneously serves on the Berkeley County Council.

Requester

R. Allen Young, Esquire

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/july-31-2000-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/11/00july31young.pdf
• July 25 copy: https://www.scag.gov/wp-content/uploads/2013/11/00july25young1.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLIE CONDON
ATIORNEY GENERAL

July 31 , 2000

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R. Allen Young, Esquire
Mount Pleasant Town Attorney
Post Office Box 745
Mount Pleasant, South Carolina 29465
Dear Mr. Young:
You have informed this Office that a police officer for the Town of Mount Pleasant serves on the Berkeley County Council. You have asked whether simultaneous service as a police officer and a member of county council violates the dual office holding prohibitions of the State Constitution. Article XVII, Section 1A 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 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). 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 advised on many occasions that a police officer would be considered an officer for dual office holding purposes. Ops. Any. Gen. dated June 12, 1995, February 4, 1994, and November 2, 1994~ See State v. Crenshaw, supra (police officers considered "officers" rather than employees for purposes of bribery statute). We have also advised that a member of a county council would hold an office for dual office holding purposes. Ops. Any. Gen. dated July 26, 1999, June 27, 1997, December 7, 1994, and August 20, 1985. Accordingly, simultaneous service in both capacities would violate the dual office holding prohibitions of the State Constitution. When a dual office holding situation occurs, the law operates to automatically "cure" the problem. If an individual holds one office on the date he assumes a second office, assuming both offices fall within the purview of Article XVII, Section l A of the Constitution (or one of the other applicable constitutional prohibitions against dual office holding), he is deemed by law to have vacated the first office. However, the individual may continue to perform the duties of the previously held office as a de facto officer until a successor is duly selected to assume the duties or complete R E~lll EHT

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Mr. Young
Page 2
July 31, 2000
the term of office. While the actions taken by a de facto officer are generally held to be valid with regard to third parties, there is no question that such officer is acting under color of law rather than with full de jure status which he would possess if there had been no dual office holding. Furthermore, there exists general authority that the protections afforded a de facto officer will not be deemed to continue indefinitely, particularly when the public is chargeable with notice that the officer's status has been reduced to one of de facto rather then de jure. QQ. Any. Gen. dated May 7, 1998.

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You have stated that the individual in question was a police officer before he became a member of county council. Therefore, the individual is deemed by law to have vacated his position as police officer when he assumed his position with the Berkeley County Council. He would, however, continue to serve as a police officer in a de facto capacity until his successor is found. This de facto capacity does carry with it some risk. While a de facto officer's actions are generally held to be valid with regard to third parties, it is possible that a court may find that the actions of a de facto officer are invalid. This is of particular concern here where the de facto officer is charged with enforcing the criminal laws of this State. Therefore, the wisest course of action in this case would be for the police officer to avoid a situation where his law enforcement actions could be called into question. With best personal regards, I am

1,7).7.)
Paul M. Koch
Assistant Attorney General
REVIEWED AND APPROVED BY:

BC. WILLIAMi i '
Deputy Attorney General