Could a Florence school trustee also serve as a South Carolina town judge in 2006?

Plain-English summary

In 2006, the South Carolina Attorney General said a Florence School District Three trustee could not simultaneously serve as a town judge. The office treated both positions as public offices whose duties involved state sovereign power, so dual service would violate the state constitution's dual office holding provision.

The prohibition did not stop the trustee from seeking the judgeship. The opinion said assuming the second office would create a vacancy in the first one.

Currency note

This opinion was issued in 2006. 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 the opinion count a school trustee as a public officer?
A: Yes. It relied on prior opinions treating school board and trustee seats as offices.

Q: Did the opinion count a town judge as an officer too?
A: Yes. It said municipal judges held offices for this constitutional rule.

Q: Could a sitting trustee seek the judgeship?
A: Yes. The opinion distinguished seeking the office from holding both, and said taking the judgeship would vacate the first office.

Background and statutory framework

The opinion applied South Carolina's constitutional dual office test to the two described positions and relied on earlier Attorney General opinions about each. Its answer concerned simultaneous service, not eligibility to campaign.

Citations and references

The linked opinion quotes the state constitutional provision and discusses earlier advice on school trustees and municipal judges.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/june-16-2006/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/06jun16mccut.pdf

Original opinion text

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HENRY M CMASTER
ATfORNEY GENERAL

June 16, 2006

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The Honorable Patsy McCutcheon
Board Member, Florence School District Three
Post Office Box 443
Olanta, South Carolina 29114
Dear Ms. McCutcheon:
We issue this opinion in response to your letter requesting an opinion regarding dual office holding. From your letter, we understand you currently serve as a board member on the Florence School District Three Board of Trustees and are considering seeking a position as a town judge. Thus, you inquire as to whether you ..can hold the school board position and be appointed to the town judge position?" Law/Analysis

Article XVII, section lA of the South Carolina Constitution (Supp. 2005) prohibits a person from holding ''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." 1n order to contravene this provision, a person concurrently must hold two offices having duties that involve the exercise of some portion of the sovereign power of the State. Sanders v. Belue, 78 S.C. 171, 174, S.E. 762, 763 (1907). Furthermore, our courts recognize other relevant considerations in determining whether a individual holds an office, such as, whether a statute, or other such authority, establishes the position, proscribes the position's duties or salary, or requires qualifications or an oath for the position. State v. Crenshaw, 274 S.C. 475,477, 266 S.E.2d 61 , 62 (1980). This Office, on numerous occasions, determined a member of a county school board or board of trustees is an officer for dual office holding purposes. Op. S.C. Atty. Gen., April 20, 2006; December 20, 2005; May 27, 2004; April 20, 2004; January 17, I 985; July 8, 1983. Similarly, this Office determined on many occasions that an individual serving as a magistrate or municipal judge holds an office for dual office holding purposes. Op. S.C. Atty. Gen., January 25, 2006; December 15, 2003; September 11 , 2003; February l , 1984. Thus, an individual is prohibited by the South Carolina Constitution's dual office holding provision from serving both as a member of a school

The Honorable Patsy McCutcheon
Page2
June 16, 2006
board and as a municipal judge. However, we note, "the constitutional prohibition on dual office holding does not prevent an individual from running for office." Op. S.C. Atty. Gen., April 21, 2006. Rather, this provision acts to create a vacancy in the first office upon the assumption of the second office. Id. Very truly yours,

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Assistant Attorney General
REVIEWED AND APPROVED BY:

Robert D. Cook
Assistant Deputy Attorney General