Was Beaufort's city attorney holding two offices by also prosecuting municipal cases in 2000?

Plain-English summary

Beaufort's city manager asked whether the city attorney's work as municipal prosecutor violated South Carolina's dual-office rule. The June 2000 informal opinion said the arrangement was one municipal attorney role with prosecution among its duties, not two separate offices. Under Section 5-7-230, the city council could prescribe the municipal attorney's duties, and the AG said those duties could include prosecuting city ordinance violations.

The letter described municipal attorneys as legal advisers to city agencies and officials and said that, in South Carolina, they typically served as municipal court prosecutors. Its answer concerned the duties council assigned in Beaufort, rather than a general conclusion about every separately created prosecutor position.

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: Did prosecuting city cases automatically create a second office?
A: No. The AG said council could make prosecution part of the city attorney's existing duties.

Q: Who determined the attorney's municipal duties?
A: The opinion read Section 5-7-230 as giving city council authority to prescribe them.

Q: Did the opinion address a separately appointed city prosecutor?
A: No. It considered Beaufort's city attorney serving as prosecutor under council-defined duties.

Background and statutory framework

The AG quoted Section 5-7-230 on council appointment of a municipal attorney and municipal judges. It separated the question of whether prosecution was an assigned attorney duty from the constitutional problem of one person holding two distinct public offices.

Citations and references

• Section 5-7-230, the municipal attorney appointment and duties provision.

Official title

Concerning whether a dual office holding situation exists if the Beaufort City Attorney, who is appointed pursuant to the Beaufort City Code, simultaneously serves as city prosecutor.

Requester

John F. McDonough, City Manager, City of Beaufort

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/june-2-2000/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/11/00june2mcdonough.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHA RLIE C ON DON
ATIO RNEY GENERAL

June 2 ~ 2000

John F. McDonough, City Manager
City of Beaufort
Post Office Box 1167
Beaufort, South Carolina 29901

RE:

Informal Opinion

Dear Mr. McDonough:
Attorney General Condon has forwarded your opinion request to me for reply. You have informed this Office that the Beaufort City Attorney, who is appointed pursuant to the Beaufort City Code, serves as both city attorney and city prosecutor. You have asked whether this situation constitutes dual office holding in violation of state law. Pursuant to Section 5-7-230 of the South Carolina Code of Laws " [t]he city council may elect or appoint a municipal attorney and a judge or judges of the municipal court, whose duties shall be as prescribed by law . ... " As you can see, city council possesses the power to dictate the duties of the municipal attorney. Generally, the duties of a municipal attorney require him to act as attorney, counsel, and legal advisor of every agency of the city, and of the heads of the departments. Op. Attv. Gen. dated September 15, 1977. Additionally, in most instances, the municipal attorney is the proper party to prosecute violations of municipal ordinances. McQu illin Municipal Corporations §27.30. Typically, in South Carolina, the municipal attorney is the prosecutor in municipal court. Op. A.t!x. Gen. dated August 27, 1996. Your question is not really one of dual office holding. As provided by the statute, city council may prescribe the duties of the city attorney and these duties may include the role of city prosecutor. Thus, it appears in your situation that council is defining the role of city attorney rather than creating a separate office .

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June 2, 2000
This letter is an informal opinion only. It has been written by a designated 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 best personal regards, I am Sincerely yours,

8AK.J
Paul M. Koch
Assistant Attorney General

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