Could a South Carolina jailer keep North Carolina police certification without violating South Carolina's dual office rule?

Plain-English summary

A South Carolina jailer wanted to remain certified as a law enforcement officer in North Carolina. The Attorney General had previously treated South Carolina Class 1, 2, and 3 law enforcement certifications, including jailers, as public offices for the state's dual office rule. But an office created under another state's law does not exercise South Carolina's sovereign power. The Attorney General therefore concluded that the South Carolina constitutional rule did not prohibit this combination of certifications.

The answer was limited to that constitutional rule. The opinion expressly left open whether any other law, certification rule, or employer policy in either state barred the arrangement.

Currency note

This opinion was issued in 2013. 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

Did South Carolina's dual office rule prevent a Class 2 jailer from keeping North Carolina police certification?

The Attorney General said no. For this rule, a North Carolina law enforcement position was not a second South Carolina public office because it was created under another state's law and did not exercise South Carolina's sovereign power.

Did the opinion say dual certification was permitted under every rule?

No. It did not address other laws or regulations of either state, or the policies of the agencies that certify or employ the officer.

Why did the opinion treat the two states' positions differently?

The opinion explained that a South Carolina public office involves an exercise of some of South Carolina's sovereign power. It had previously treated South Carolina law enforcement certifications, including jailer certification, as offices. It did not apply that classification to a position created by another state's law.

Background and legal framework

The South Carolina Criminal Justice Academy asked about a former North Carolina officer who sought Class 2 jailer certification in South Carolina while maintaining North Carolina certification. South Carolina's constitution barred simultaneous service in two offices of honor or profit, subject to listed exceptions. The opinion used Sanders v. Belue and State v. Crenshaw to describe what counted as a public office, then applied prior Attorney General opinions concerning offices created under federal law. It concluded that an out-of-state law enforcement position fell outside South Carolina's dual office prohibition.

Citations and references

• South Carolina Constitution, Article XVII, section 1A (dual office provision, as reproduced in the opinion).
• Sanders v. Belue, 78 S.C. 171, 174, 58 S.E.2d 762, 763 (1907) (public office definition, as printed in the opinion).
• State v. Crenshaw, 274 S.C. 475, 478, 266 S.E.2d 61, 62 (1980) (additional factors for public office).

Official title

As to whether an individual certified as a law enforcement officer in North Carolina can maintain such certification if he or she is also certified as a Class 2 law enforcement officer as a jailer in South Carolina.

Requester

Brandy A. Duncan, Esquire, General Counsel, South Carolina Criminal Justice Academy

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/june-20-2013/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/06/duncan-b-a-os-9608-6-20-13-law-enforcement-officer-certified-in-NC-SC.pdf

Original opinion text

ALAN WILSON

ATIORNEY GENERAL

June 20, 20 13

Brandy A. Duncan, Esquire
General Counsel
South Carolina Criminal Justice Academy
5400 Broad River Road
Columbia, South Carolina 29212
Dear Ms. Duncan,
You request an opinion of this Office as to whether an individual certified as a law enforcement officer in North Carolina can maintain such ce1iification if he or she is also ce1iified as a Class 2 law enforcement officer as a jailer in South Carolina. By way of background, you state: The J. Rueben Long Detention Center staff contacted me recently about training and certification for one of their jailers. This candidate formerly worked as a law enforcement officer in North Carolina, in a pos ition equivalent to South Carolina's Class 1 law enforcement certification. This candidate is interested in maintaining her certification as a Jaw enforcement officer in North Carolina while still being certified in South Carolina as a Class 2 law enforcement officer Uailer). Is this permissible since the "offices" are located in two different states OR would this violate the dual office holding prohibition in the South Carolina Constitution?

Law/Analysis
Atiicle XVII , § 1A of the South Carolina Constitution provides that "[n]o 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 a violation of this provision to occur, an individual must concurrently hold two public offices which have duties " involving an exercise of some pati of the sovereign power" of the State~ Sanders v. Belue, 78 S.C. 171, 174, 58 S.E.2d 762, 763 (1907). A public officer is " [o]ne who is charged by law with duties involving an exercise of some part of the sovereign power, either great or small, in the performance of which the public is concerned, and which are continuing, and not occasional intennittent, is a public officer." Id., 58 S.E.2d at 762-63. Other relevant considerations include: "whether the position was created by the legislature; whether the qualifications for appointment are established; whether the duties, tenure, salary, bond, and oath are prescribed or required; whether the one occupying the position is a representative of the sovereign; among others." State v. Crenshaw, 274 S.C. 475, 478, 266 S.E.2d 61, 62 (1980). We have previously issued opinions concluding that an individual holding certification as a Class 1, 2, or 3 Jaw enforcement officer, including jailers, in South Carolina holds an office for dual office holding purposes. See Ops. S.C. Att'y Gen., 2012 WL 4836949 (Oct. 2, 2012); 2012 WL 989298 (March 16, 2012); 1988 WL 485225 (Feb. 5, 1998). Thus, the question remains whether A11icle XVII, REMBERT C. D ENNIS B UILDING

•

POST OFFICE Box 11549

•

COLUMBIA SC ?9211 -1549
'
-

•

TELEPHONE 803 734 3970
-

•

F

ACSIM!LE 803-253-6283

Ms. Duncan
Page2
June 20, 2013

§ IA prohibits an individual certified as a law enforcement officer m this State from maintaining certification as a law enforcement officer in another state. The definition of a public officer as stated in Sanders and Crenshaw, supra, does not apply to a position or office which is not created by South Carolina law and which does not have any duties involving the exercise of some part of the sovereign power of this State. As we have previously stated: We have concluded on a number of occasions that a position not created by
[South Carolina] law is not an office .. ..
Numerous opinions which have been issued by this Office in past years have considered whether positions required by or established under federal law would be considered offices for purposes of dual office holding. We have consistently concluded that a position established pursuant to federal law would not be an office for purposes of Article XVII, § I A . . .. Op. S.C. Att'y Gen., 2008 WL 608964 (Feb. 4, 2008) (emphasis in original); see also Ops. S.C. Att'y Gen., 20 I 0 WL 2678694 (June 25 , 20 IO); 2009 WL 2406409 (July 24, 2009). In a 2004 opinion, we concluded that an individual holding a law enforcement position created by federal law for which he possessed only federal arrest authority did not hold an office for purposes of Article XVII, § I A, and thus could continue serving as a part-time law enforcement officer with a municipal police depa1tment in this State. Op. S.C. Att'y Gen., 2004 WL 2745679 (Nov. 15, 2004). The conclusions of the above opinions apply to the instant case. A position created by North Carolina law or the law of any other state does not involve the exercise of some pa1t of the sovereign power of the State of South Carolina. Therefore, such positions are not offices for purposes of the dual office holding prohibition of the South Carolina Constitution. Accordingly, Article XVII, § I A does not prohibit a person holding a position in this state as a jailer with Class 2 law enforcement certification from maintaining ce1tification as a law enforcement officer in North Carolina. We note, however, that this opinion is limited in scope to consideration under the dual office holding prohibition of A1ticle XVII, § I A; it does not address whether certification in both states is prohibited by any other laws or regulations of either state, or by the rules, regu lations, or policies of the agencies or institutions which issue such certifications or employ the individual at hand. Sincerely,

~___......,,·

61

Assistant Attorney General
REVIEWED AND APPROVED BY:

flH-@,~

Robert D. Cook
Solicitor General