Could a South Carolina highway patrol officer serve on a county school board at the same time?

Plain-English summary

In 1999, a state senator asked whether a highway patrol officer elected to the Newberry County School Board could serve in both roles and whether the conflict affected enforcement authority. The Attorney General's office said both roles were public offices under South Carolina's dual-office rule. On assuming the school board seat, the person was deemed to have vacated the patrol office.

The opinion said the officer could continue performing patrol duties as a de facto officer until a successor was selected. Acts of a de facto officer were generally treated as valid for third parties, but the letter said that protection was not certain or indefinite, particularly for criminal enforcement. It cautioned against leaving law enforcement actions open to challenge. The letter was informal.

Currency note

This opinion was issued in 1999. 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

Could the officer hold both positions lawfully?
A: The AG said no. Prior opinions treated each role as a public office, so simultaneous service violated the state constitution's dual-office prohibition.

Which position was vacated?
A: The opinion said the first office, highway patrol officer, was vacated by law when the person assumed the school board seat.

Were the officer's later patrol actions automatically void? A: The opinion did not say that. It said de facto acts were generally valid for third parties, while acknowledging that a court might find particular acts invalid.

How long could de facto service continue?
A: The letter described it as lasting until a successor was selected and warned that de facto protection should not be assumed to continue indefinitely.

Background and statutory framework

The opinion applied Article XVII's dual-office rule and earlier opinions identifying school board membership and highway patrol service as public offices. It distinguished full legal title to office from temporary de facto service after the second office was assumed.

Citations and references

Cases: Sanders v. Belue, 78 S.C. 171, 58 S.E. 762 (1907); State v. Bridges, 329 S.C. 11, 495 S.E.2d 196.

Official title

Asking whether a dual office situation would exist if a highway patrolman simultaneously served as a member of the Newberry County School Board.

Requester

The Honorable Andre Bauer, Senator, District No. 18

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/june-21-1999/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/11/99june21bauer.pdf

Original opinion text

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The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLES M. C ONDON
ATTORNEY GENERAL

June 21 , 1999

The Honorable Andre Bauer
Senator, District No. 18
504 Gressette Building
Columbia, South Carolina 29202

RE:

Informal Opinion

Dear Senator Bauer:
Attorney General Condon has forwarded your opinion request to me for reply. You have informed this Office that a State Highway Patrolman has recently been elected to serve on the Newberry County School Board. You ask whether simultaneous service as a highway patrolman and member of the Newberry County School Board would violate the dual office holding prohibitions of the South Carolina Constitution. If a dual office holding violation does exist, you ask whether such would have any effect on the highway patrolman' s law enforcement authority. Article XVII, Section IA 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 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 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 previously advised that one who serves on the Newberry County

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Senator Bauer
Page2
June 21, 1999

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Board of Education holds an office for dual office holding purposes. Op. Afil. Gen. dated January 10, 1995. We have also concluded that a highway patrolman holds an office for dual office holding purposes. Ops. Attv. Gen. dated November 9, 1982 and October 14, 1982; See State v. Bridges, 329 S.C. 11, 495 S.E.2d 196 (l 997)(Highway Patrol officers and troopers are "public officials" within the meaning of section 16-3-1040 of the South Carolina Code of Laws). Thus, simultaneous service in both capacities would violate the dual office holding prohibitions of the State Constitution. When a dual office holding situation occurs, the law operates to automatically "cure" the problem. If an individual holds one office on the date he assumes a second office, assuming both offices fall within the purview of Article XVII, Section IA of the Constitution (or one of the other applicable constitutional prohibitions against dual office holding), he is deemed by law to have vacated the first office. However, the individual may continue to perform the duties of the previously held office as a de facto officer until a successor is duly selected to assume the duties or complete the term of office. While the actions taken by a de facto officer are generally held to be valid with regard to third parties, there is no question that such officer is acting under color oflaw rather than with full de jure status which he would possess if there had been no dual office holding. Furthermore, there exists general authority that the protections afforded a de facto officer will not be deemed to continue indefinitely, particularly when the public is chargeable with notice that the officer's status has been reduced to one of de facto rather then de jure. Op. AttY. Gen. dated May 7, 1998. In this situation, the individual in question is deemed by law to have vacated his position as highway patrolman when he assumed his position with the Newberry County School Board. He would, however, continue to serve as a highway patrolman in a de facto capacity until his successor is found. This de facto capacity does carry with it some risk. While a de facto officer's actions are generally held to be valid with regard to third parties, it is possible that a court may find that the actions of a de facto officer are invalid. This is of particular concern here where the de facto officer is charged with enforcing the criminal laws of this State. Therefore, the wisest course of action in this case would be for the highway patrolman to avoid a situation where his law enforcement actions can be called into question.

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.

Senator Bauer
Page 3
June 21, 1999
With best personal regards, I am
Sincerely yours,

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Paul M. Koch
Assistant Attorney General

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