Could a South Carolina sheriff’s deputy serving as a school resource officer also sit on a town council?

Plain-English summary

A Chester County sheriff's deputy serving as a school resource officer had been elected to the Great Falls Town Council. The Attorney General concluded in 2008 that both the council seat and the deputy's school resource role would most probably count as public offices. Serving in both at once would most probably violate South Carolina's constitutional rule against holding two offices.

The opinion said a school resource officer was a sworn officer with arrest power and statutory duties and qualifications, which supported the public-office classification. It also described the consequence of taking a second office: the first office would be vacated by operation of law, although acts performed while serving as a de facto officer were not automatically invalid.

Currency note

This opinion was issued in 2008. 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: Was the school resource officer assignment treated as a separate office in the AG's analysis? A: The AG said the deputy's school resource officer position would most probably be an office because it involved statutory duties, qualifications and law enforcement power.

Q: Could the deputy simultaneously serve on Great Falls Town Council? A: The opinion said that combination would most probably violate the constitutional dual-office rule.

Q: Which office would be affected if the person took the council seat second? A: The AG explained that taking a second qualifying office would automatically vacate the first office held.

Q: Were all actions taken in the first job automatically void after that? A: No. The opinion said actions of a de facto officer remained effective toward the public and third parties unless a court declared otherwise.

Background and statutory framework

The request described a sheriff's deputy assigned to a school who was newly elected to town council. The opinion applied the constitutional bar on two offices and the state test asking whether each position exercises sovereign power. It relied on prior AG opinions classifying town council members and deputy sheriffs as officeholders, then discussed the school resource officer statute and the effect of dual office holding.

Citations and references

Constitution: Article XVII, Section 1A. Statute: S.C. Code Section 5-7-12. Case: State v. Crenshaw, 274 S.C. 475, 266 S.E.2d 61 (1980).

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/june-11-2008-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/05/grier-b-t-os-8590-6-11-08-dual-office-holding.pdf

Original opinion text

June 11, 2008

Brian T. Grier, Esquire
Town Attorney, Town of Great Falls
P.O. Box 808
Chester, South Carolina 29706-0808
Dear Mr. Grier:
We received your letter requesting an opinion of this Office concerning dual office holding. You stated that “[i]n a recent election, a Chester County Sheriff’s Department deputy who is also a school resource officer was elected to the Great Falls Town Council.” You inquired “whether or not this individual’s service as a council member would make him a dual office holder within Chester County.” Law/ Analysis Article XVII, Section 1A of the South Carolina Constitution provides that “No person may 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 regularly 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). On numerous occasions, we have opined that a position on a city or town council constitutes an office for purposes of dual office holding. See, e.g., Ops. S.C. Atty. Gen., May 9, 2006; May 21, 2004; June 27, 1997. This office has concluded on previous occasions that a deputy sheriff would be considered an office holder for purposes of dual office holding. See, e.g., Ops. S.C. Atty. Gen. dated July 30, 2007; March 3, 2004; June 11, 1992; September 24, 1982.

Mr. Grier
Page 2
June 11, 2008

Moreover, in an opinion dated July 13, 1995, this Office advised that “if an individual were to serve on a city council and as a deputy sheriff simultaneously, dual office holding would most probably result.” Please see the enclosed copy of that opinion. In an opinion dated January 8, 1986, we reached a similar conclusion. We understand from your letter that the Sheriff’s deputy in question is also a school resource officer. In a prior opinion dated May 9, 2007, we examined the statute describing the position of school resource officer, S.C. Code Section 5-7-12 (A), which states as follows: The governing body of a municipality or county may upon the request of any other governing body or of any other political subdivision of the State, including school districts, designate certain officers to be assigned to the duty of a school resource officer and to work within the school systems of the municipality or county. The person assigned as a school resource officer shall have statewide jurisdiction to arrest persons committing crimes in connection with a school activity or school-sponsored event. When acting pursuant to this section and outside of the sworn municipality or county of the school resource officer, the officer shall enjoy all authority, rights, privileges, and immunities, including coverage under the workers' compensation laws that he would have enjoyed if operating in his sworn jurisdiction. For purposes of that section, the term “school resource officer” is further defined in Subsection (B) as follows:
[A] person who is a sworn law enforcement officer pursuant to the requirements of any jurisdiction of this State, who has completed the basic course of instruction for School Resource Officers as provided or recognized by the National Association of School Resource Officers or the South Carolina Criminal Justice Academy, and who is assigned to one or more school districts within this State to have as a primary duty the responsibility to act as a law enforcement officer, advisor, and teacher for that school district. The foregoing statute describes the duties of a school resource officer and the qualifications for the position, two factors described in Crenshaw, above, that tend to indicate that the position is an office. Moreover, it is clear from the statute that a school resource officer is a sworn law enforcement officer with the power of arrest. The exercise of such powers is another factor leading us to the conclusion that, like other Sheriff’s deputies, a school resource officer exercises part of the sovereign power of the State. Therefore, the position of school resource officer would most probably be considered an office for purposes of dual office holding. Since the positions of town councilman and Sheriff’s deputy serving as a school resource officer involve an exercise of part of the sovereign power of the State, holding both positions at the same

Mr. Grier
Page 3
June 11, 2008
time would most probably violate the constitutional prohibition on dual office holding. In a prior opinion dated July 13, 1995, we addressed the issue of what happens if a person who holds an office assumes a second office: When a dual office holding situation occurs, the law operates automatically to “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 1A 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 held. Thus, the law operates automatically to create a vacancy in that first office. However, the individual may continue to perform the duties of the previously held office as a de facto officer, rather than de jure, until a successor is duly selected to complete his term of office (or to assume his duties if the term of service is indefinite). See Walker v. Harris, 170 S.C. 242 (1933); Dove v. Kirkland, 92 S.C. 313 (1912); State v. Coleman, 54 S.C. 282 (1898); State v. Buttz, 9 S.C. 156 (1877). Furthermore, actions taken by a de facto officer in relation to the public or third parties will be as valid and effectual as those of a de jure officer unless or until a court should declare such acts void or remove the individual from office. See, for examples, State ex rel. McLeod v. Court of Probate of Colleton County, 266 S.C. 279, 223 S.E.2d 166 (1976); State ex rel. McLeod v. West, 249 S.C. 243, 153 S.E.2d 892 (1967); Kittman v. Ayer, 3 Stob. 92 (S.C. 1848). Op. S.C. Atty Gen., July 13, 1995. Thus, as we have previously recognized,“[u]ntil such time as the de facto officer is replaced, any actions taken by that individual would be considered as valid and effectual as those of a de jure officer unless and until a court should declare otherwise; thus, it is possible that a court could nullify the actions taken, but such actions are not automatically nullified merely because a dual office holding situation existed and the individual became a de facto officer as a result.” Id. Conclusion Consistent with our prior opinions, we advise that a court would most probably consider the positions of Sheriff’s deputy and town councilman to be offices for purposes of dual office holding. Moreover, the position you described of a Sheriff’s deputy serving as a school resource officer is provided for in S.C. Code Section 5-7-12, which describes the duties and the qualifications of a school resource officer. As described in Crenshaw, above, those factors tend to indicate that the position is an office. Moreover, according to the statute, a school resource officer is a sworn law enforcement officer with the power of arrest. Like other Sheriff’s deputies, a school resource officer exercises part of the sovereign power of the State, and would therefore most likely be considered as holding an office for purposes of dual office holding. Since the positions of town councilman and Sheriff’s deputy serving as a school resource officer involve an exercise of part of the sovereign

Mr. Grier
Page 4
June 11, 2008
power of the State, simultaneously serving in these two positions would most probably violate the dual office holding provision of the South Carolina Constitution. Sincerely, Henry McMaster Attorney General

By:

Enclosure
REVIEWED AND APPROVED BY:

______
Robert D. Cook
Deputy Attorney General

Elizabeth H. Smith
Assistant Attorney General