Could a Beaufort County council member also work for the county as recycling coordinator?

Plain-English summary

Beaufort County asked whether an existing county council member could be hired as the county's recycling coordinator. The 2016 AG separated two issues. It predicted the coordinator role was ordinary employment rather than a second office of honor or profit, so the constitutional dual office holding ban did not itself bar it. It also saw a potential common law master-servant conflict because county council influenced the supervisors, salary, and duties of the person serving in the employee role.

The opinion did not say every county job was barred to a council member. It said the conflict depended on the level of control and described positions a member might hold without that problem. It referred separate ethics concerns to the State Ethics Commission.

Currency note

This opinion was issued in 2016. 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 recycling coordinator role a second public office?
A: The AG predicted no, so the constitutional dual office holding prohibition did not decide the case.

Q: Was there still a problem with the same person holding both roles?
A: Possibly. The opinion identified a master-servant conflict from council's power over the chain of supervision for the employee.

Q: Did the opinion approve all county employment for council members?
A: No. It said some positions might avoid the conflict, while this proposed job raised it.

Background and statutory framework

The request concerned a council member applying for a position under the Solid Waste Superintendent. The opinion explained that the dual office rule requires two public offices, then considered the separate common law bar on being both master and servant in the same government. Council's control over the employee's managers was the factual feature driving the concern.

Citations and references

• The conclusion called the proposed arrangement “a potential master-servant conflict.”
• It also said the recycling coordinator job was not an office “for honor or profit” under the constitutional prohibition.
• Source: South Carolina Attorney General, June 14, 2016.

Official title

Regarding dual office holding.

Requester

Mr. Gary Kubic, Beaufort County Administrator.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/june-14-2016/
• Original PDF: https://www.scag.gov/wp-content/uploads/2016/06/Kubic-G.-OS-10033-FINAL-Opinion-6-14-2016-FAIR-01030541xD2C78.pdf

Original opinion text

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Alan Wilson
Attorney General

June 14, 2016

Mr. Gary Kubic

Beaufort County Administrator
Post Office Drawer 1228

Beaufort, SC 29901-1228
Dear Mr. Kubic:

Attorney General Alan Wilson has referred your request dated April 18, 2016 to the Opinions section for

a response. The following is this Office's understanding of your question and our opinion based on that understanding. Issue (as quoted from your letter): "On March 25, 2016, Beaufort County received an application for employment from a County Council Memberfor the position entitled Recycling Coordinator - Solid Waste and Recycling. I have attached the

fulljob description, but the basicjob description is as follows: Under general supervision of the Solid Waste Superintendent, plans, implements and

coordinates comprehensive waste management system to maximize prevention, reuse, and recycling opportunities in accordance with applicable federal/state/local laws

and regulations. Plays a central role in planning and administering environmental activities related to waste management.

We have reviewed several previous Attorney General Opinions and concluded that current employees can run for elected office while being employed by the County. Additionally, a March 2004 Attorney General opinion held that the employment of a County Council Member as a City Public Utilities Director for a municipality did not violate dual office holding provisions under Article XVII, Section 1A.

However,

unlike that set offacts, this would be employment of an individual by the same entity which the council member serves as an elected official.

We respectfully request clarification on whether a current County

Council Member may be employed by the same County or if such employment would violate the dual office holding provisions or other South Carolina laws. " Law/Analysis:

By way of background, Article VI, Section 3 and 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 ...," with exceptions specified for an officer in the militia, a member of a lawfully and regularly organized fire department, a constable, or a notary public. For these provisions 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). The Sanders case states: 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

Rembert C. Dennis Building

•

Post Office Box 11549

• Columbia, SC 2921 1-1549

• Telephone 803-734-3970

• Facsimile 803-253-6283

Mr. Gary Kubic
Page 2
June 14,2016

concerned, and which are continuing, and not occasional or intermittent, is a public officer. Conversely, one who merely performs the duties required of him by persons employing him under an express contract or otherwise, though such persons be themselves public officers, and though the employment be in or about a public work or business, is a mere employee.

Id. at 174, 763. Other relevant indications of an office "of honor or profit" include "whether the position was created by the legislature; whether qualifications for appointment are established; whether duties, tenure, salary, bond and oath are prescribed or required; [and] whether one occupying [the] position is

representative of sovereign [power or duties]." State v. Crenshaw. 274 S.C. 475, 266 S.E.2d 61 (1980) (citing State ex rel. Carson v. Wood. 154 W.Va. 397, 175 S.E.2d 482 (1970)). The exception to the dual

office holding prohibition would be if the person holds the second office "ex officio." Op. S.C. Attv. Gen.. 2012 WL 4459270 (September 19, 2012) (citing Ashmore v. Greater Greenville Sewer District. 21 1 S.C. 77, 92, 44 S.E.2d 88, 95 (1947)). As you may be aware, an officeholder may give up the first office

to hold the second office, but if he takes the second office while in office, he forfeits the first office. His service in the first office while in dual offices would be de facto until replaced. Op. S.C. Attv. Gen.. 2012 WL 4459271 (Septemberl3, 2012) (citing Ops. S.C. Attv. Gen.. July 28. 2003; July 13, 1995). Likewise, South Carolina law specifically prohibits county council members from holding any other office of honor

or profit in the government. S.C. Code § 4-9-100.
The first issue presented by your question is whether the position of Recycling Coordinator is an office of "honor or profit" as to fall under the dual office holding prohibition of the South Carolina Constitution.

South Carolina follows the criteria in the Crenshaw case to determine if a position is an office of "honor or profit" for dual office holding purposes. The criteria in the Crenshaw case consist of four questions:

1 ) Was the position created by the General Assembly?
2) Are there established qualifications for appointment?
3) Are duties, tenure, salary, bond and oath required or prescribed? 4) Is the position representative of sovereign duties?

An office of "honor or profit" does not require an affirmative answer to all of the questions, nor is any

one question conclusive to the determination. State v. Crenshaw, supra. Traditionally, sovereignty holds three powers: the power to tax, the power of eminent domain and the power to police. Op. S.C. Attv. Gen.. 1996 WL 599391 (September 6, 1996) (citing Philadelphia Nat. Bank v. U.S. of America. 666 F.2d 834 (3rd Cir. 1981)). Using the information provided to us, it does not appear this position was created by the General Assembly. The position appears to have limited qualifications, no bond, tenure or oath that we are aware of, and the duties do not appear to have any sovereign duties. Based on this information, we believe a court will find that this position is not an office "for honor or profit." Regardless of whether or not both positions are offices, one cannot violate the common law masterservant principle. This Office has stated regarding the master-servant principle: In past opinions, we summarized this relationship as follows:
[A] conflict of interest exists where one office is subordinate to the other, and subject in some degree to the supervisory power of its incumbent, or

where the incumbent of one of the offices has the power of appointment as to the other office, or has the power to remove the incumbent of the

Mr. Gary Kubic
Page 3

June 14, 2016

other or to punish the other. Furthermore, a conflict of interest may be demonstrated by the power to regulate the compensation of the other, or to audit his accounts.
[IJt is not the performance, or the prospective right ofperformance, of inconsistent duties only that gives rise to incompatibility,

but the

acceptance of the functions and obligations growing out of the two

offices.... The offices may be incompatible even though the conflict in the In any event, the applicability of the doctrine does not turn upon the integrity of the officeholder or his capacity to achieve impartiality.

duties thereof arises on but rare occasions....

Op.

S.C.

Attv.

Gen..

March 26,

1999

(quoting 67 C.J.S.

Officers

§ 27).

Furthermore, the South Carolina Supreme Court in McMahan v. Jones. 94 S.C. 362,

365,

77 S.E.

1022,

1023

(1913),

declaring the

employment

of two

commissioners by the commission illegal, stated:
No man in the public service should be permitted to occupy the dual

position of master and servant; for, as master, he would be under the temptation ofexacting too little ofhimself, as servant; and, as servant, he would be inclined to demand too much of himself, as master. There would be constant conflict between self-interest and integrity. Should Richardson, as chairman of the commission, appoint the committee to investigate his own management of the infirmary, or check his accounts as treasurer? Should he be present, when his administration of the

institution is being considered and discussed? Should he and Butler participate, when their own duties are being prescribed and their compensation fixed? It requires only a moment's reflection to see that the positions are utterly inconsistent, and ought not to be held by the same

persons. Propriety, as well as public policy, forbids it.
This Office has considered various situations involving potential violations of common law master-servant principles. In those opinions, we determined whether or not an actual conflict exists is a question offact, which may not be determined in an opinion of this Office. Op. S.C. Attv. Gen.. February 19, 2003 ("the ultimate conclusion of whether an actual conflict exist is a factual matter. As we have previously opined, '[bfecause this Office does not have the authority of a court or other fact-finding body, we are not able to adjudicate or investigate factual questions. ' See Ops. Attv. Gen, dated October 9, 1985 & September 3, 1999. "). Thus, this opinion is limited to a consideration ofthe applicable law which a court may consider in making such a determination. In identifying situations in which a potential conflict may exist, we primarily consider the level ofsupervision and control the elected or appointed position may have over the position in which he or she is currently employed. Op. S.C. Attv. Gen.. October 17, 2000. 2006 WL 1207271 (S.C.A.G. Apr. 4, 2006).

Mr. Gary Kubic
Page 4
June 14, 2016

As we mentioned above, South Carolina law specifically prohibits county council members from holding any other office of honor or profit in the government but the statute is silent regarding other county

positions. S.C. Code § 4-9-100.

This Office has previously addressed a similar issue regarding

employment of a town councilman by the same town. See Op. S.C. Attv. Gen.. 2013 WL 5291571 (S.C.A.G. September 9, 2013). In that opinion we stated:
[S.C. Code] § 5-7-180 [prohibiting a mayor or a councilman from holding any other

municipal office or municipal employment at the same time] "is, in part, designed to address the common law principle that one cannot be both master and servant at the same time. " Op. S.C. Att'v Gen.. 2004 WL 1182071 (May 21, 2004).

Thus, we

concluded § 5-7-180, as well as the common law master-servant principles upon

which the statute is based, would be violated if an employee of the Town of Olar continued such employment after being elected to the Olar Town Council. Idj see also Op. S.C. Att'v Gen.. 1996 WL 82889 (Jan. 8, 1996) (concluding § 5-7-180 prohibits

town mayor or councilman from serving as volunteer fireman for same town). Along the same lines, we have consistently advised that § 5-7-180 only serves to prohibit a

mayor or councilman from also being employed by the same city or town they were elected to serve while in office. See Op. S.C. Att'v Gen.. 2012 WL 889084 (March 5, 2012) ("Numerous prior opinions of this office point out that [§ 5-7-180] prevents

mayors and members oftown councils from being employed in other positions by their towns while in office ") (citations omitted). " Op. S.C. Attv. Gen.. 2013 WL 5291571 (S.C.A.G. September 9, 2013).

The 2013 opinion went on to

distinguish between working for the same town as a councilman versus working for a different town. Id. Since you are asking about a county councilman working for the same county, it is likely a court would

find the same principles of master-servant to apply. Even though the Recycling Coordinator may not report directly to the county council, county council controls funding for and would have the ability to hire, fire, and set the salary of the people who would hire, fire, set the salary of and manage the Recycling Coordinator. Moreover, this Office stated in a 2006 opinion regarding potential conflicts that: In identifying situations in which a potential conflict may exist, we primarily consider the level of supervision and control the elected or appointed position may have over the position in which he or she is currently employed. Op. S.C. Attv. Gen.. October 1 7,

2000. In an opinion of this Office dated March 26, 1999, we considered whether a youth counselor, employed by the Department ofSocial Services (DSS), may run for a position on the Board of Education of Laurens County School District 55. Op. S.C. Attv. Gen.. March 26, 1999. In determining a potential conflict existed, we considered the fact that the counselor, although employed by DSS, was on site at a high school in the school district, the high school's principal partially supervised the counselor, and the counselor received ten percent ofhis payfrom the school district. Id. Op. S.C. Atfv Gen.. 2006 WL 1207271 (S.C.A.G. Apr. 4, 2006). In addition, South Carolina law prohibits using one's office for financial gain or to influence a governmental decision for economic impact. S.C. Code § 8-13-700. Furthermore, our courts have declared it is against public policy to appoint or use your influence to be appointed to a position. See Bradley v. Citv Council of City of Greenville. 212 S.C. 389, 46 S.E.2d 291, 295 (1948) ("[i]n the absence of constitutional or statutory provision it is, as said in 42 Am.Jur. 955, Public Officers, Sec. 97, 'contrary to public policy to permit an

Mr. Gary Kubic
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June 14, 2016

officer having an appointment power to use such power as a means of conferring an office upon himself, or to permit an appointing body to appoint one of its own members.'"). Conclusion: This Office believes a court will find that it could be a potential master-servant conflict for a county councilman to be employed by the same county as Recycling Coordinator because county council would have the ability to hire, fire and set the salary and duties of the people who would hire, fire, set the salary and duties and manage the Recycling Coordinator. Nevertheless, we do not believe a court will find this is an office "for honor or profit" prohibited by the South Carolina Constitution.

Conversely, we also

believe a court will determine there are positions a county councilmember may hold that would not be a master-servant conflict. See, e^. Op. S.C. Atf v Gen.. 2016 WL 386066 (S.C.A.G. January 5, 2016). We also encourage you to check with the South Carolina Ethics Commission for any potential ethical

conflicts.

However, this Office is only issuing a legal opinion based on the current law at this time and

the information as provided to us. Until a court or the General Assembly specifically addresses the issues presented in your letter, this is only an opinion on how this Office believes a court would interpret the law in the matter. Additionally, you may also petition the court for a declaratory judgment, as only a court of law can interpret statutes and make such determinations. See S.C. Code §

15-53-20.

determined otherwise, or if you have any additional questions or issues, please let us know.

Sincerely,

Anita S. Fair
Assistant Attorney General

REVIEWED AND APPROVED BY:

7

Robert D. Cook
Solicitor General

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