Could a South Carolina town council member serve as unpaid police chief in 1995?

Official title

Concerning whether a dual office holding situation exists if a member of the Springfield Town Council simultaneously serves as police chief of the Town, uncompensated other than having workers compensation coverage provided.

Requester

The Honorable Steven V. Morrone, Member, Springfield Town Council

Plain-English summary

A Springfield council member asked whether he could also act as town police chief while receiving no salary beyond workers’ compensation coverage. The 1995 informal opinion concluded the simultaneous roles were prohibited. Prior AG opinions treated council membership and police chief as public offices for the constitutional dual-office rule. Separately, the municipal statute barred a mayor or council member from holding another municipal office or municipal employment during the elected term unless law authorized an exception. The author knew of no applicable exception and said foregoing pay did not change the police chief’s exercise of sovereign power. The letter also flagged a possible additional issue with the member’s separate Savannah River Site job, depending on duties and any special-state-constable commission; it did not decide that point without the job details.

Currency note

This opinion was issued in 1995. 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: Did refusing a police-chief salary avoid the prohibition? A: No. The opinion said compensation was only one consideration and the roles remained incompatible.

Q: Did the AG identify an exception allowing the two town roles? A: No. The author knew of none and said the office could not create one.

Q: Did the letter decide the council member’s other employment also violated the rule? A: No. It said that could be an additional issue if the job involved a qualifying commissioned role, but the position was unspecified.

Background and statutory framework

The letter applied Article XVII, Section 1A of the South Carolina Constitution and §5-7-180 to the proposed dual service. It distinguished the separate Savannah River employment as fact dependent.

Citations and references

• Article XVII, Section 1A, the constitutional dual-office rule discussed in the letter.
• §5-7-180, the municipal office and employment prohibition applied in the letter.
• Sanders v. Belue, cited for the public-office test.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/june-12-1995-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/12/95june12morrone.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLES MOLONY CONDON
ATTORNEY GENERAL

June 12, 1995

The Honorable Steven V. Morrone
Member, Springfield Town Council
Post Office Box 31

• Springfield, South Carolina 29146
  RE: Informal Opinion
  Dear Mr. Morrone:

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By your letter of May 31, 1995, to Attorney General Condon, you have sought an opinion as to whether you may serve concurrently as a member of the Springfield Town Council and as police chief for the Town, uncompensated other than to have workers compensation coverage provided. You have also advised that you currently work for Wackenhut Services Inc. Savannah River Site. The issues involve the constitutional prohibition against dual office holding and S.C. Code Ann. §5-7-180.

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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 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). 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). This Office has advised on numerous occasions that a member of a city or town council would be considered an officer for dual office holding purposes. See, as representative of those numerous opinions, Ops. Att'y Gen. dated February 4, 1994; July 23, 1993; and July 24, 1991. RE\fBERT C. DENNIS BUILDING

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POST OFFICE ::::0x 11549

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COLUMBIA, S.C. 29211-1549

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TELEPHONE:

803-734-3970

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'."""r.CSIMILE: 803-253-6283

The Honorable Steven V. Morrone
Page 2
June 12, 1995
This Office has advised on many occasions, as well, that a police officer or police chief would be considered an officer for dual office holding purposes. See Ops. Att'y Gen. dated February 4, 1994 and November 2, 1994. State v. Crenshaw, supra. This Office has advised previously that an individual employed as a sergeant with Wackenhut Services at the Savannah River nuclear facilities would be considered an officer for dual office holding purposes. You did not specify what position you hold with Wackenhut, but I wanted to make you aware that such employment could well be considered an office. Enclosed is a copy of an opinion dated January 31, 1992, concluding that an individual employed as a sergeant with Wackenhut at the Savannah River Site could not serve as a reserve police officer without violating the dual office holding prohibitions of the South Carolina Constitution. Also to be considered is §5-7-180, which provides: Except where authorized by law, no mayor or councilman shall hold any other municipal office or municipal employment while serving the term for which he was elected. This statute would be violated if you, as a council member, were to serve as police chief during the term for which you were elected to be on council. I am of the opinion that your declining compensation would not make a difference; you would still be exercising the sovereign power that is necessarily involved in being a police officer or chief. Compensation is only one issue. The statute is, in part, designed to address the fact that one cannot be both master (on council) and servant (police officer or chief, an employee of council) at the same time. Pointing out the language of §5-7-180 as to "[e]xcept where authorized by law," you have asked whether there could be an exception, authorized by law, in your case. I am not aware of any such exception having been created by the General Assembly or the courts of this State which would permit such service as you propose. Certainly this Office is without authority to create such an exception. In conclusion, I am of the opinion that the dual office holding prohibitions of the South Carolina Constitution and §5-7-180 would be contravened if you were to serve as a member of Springfield Town Council and as police chief of the Town (whether or not compensated) at the same time. There may be an additional problem, as well, if you are employed in a capacity at the Savannah River Site which requires commissioning pursuant to S.C. Code Ann. §23-7-10 as a special state constable.

The Honorable Steven V. Morrone
Page 3
June 12, 1995
This letter is an informal 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. With kindest regards, I am Sincerely,

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L/JJJJ:ttta fJ ,/duHg
Patricia D. Petway
Senior Assistant Attorney General
Enclosure