Could a South Carolina school board member also serve as a county magistrate?

Plain-English summary

Allendale County asked whether one person could serve on its school district board and accept an appointment as county magistrate. The June 2001 informal opinion said both positions were public offices for South Carolina’s constitutional prohibition on holding two offices of honor or profit at once. Simultaneous service therefore contravened that provision.

The letter also described what happened if the person nevertheless assumed the magistrate post: the first office was deemed vacated by law. The person could continue performing the former office’s duties as a de facto officer until a successor was selected, and acts affecting the public or third parties generally remained effective unless a court ruled otherwise.

Currency note

This opinion was issued in 2001. 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.

Historical summary

School board members considering appointment

The opinion treated a school board seat and a magistrate position as two offices under the constitutional rule. It said assumption of the second automatically vacated the first.

County administrators

The letter said a former board member could continue as a de facto officer until a successor was chosen. It described the effect of that service on acts involving the public and third parties, subject to a court ruling.

Common questions

Could a school board trustee also be a county magistrate? A: The AG said no; the two positions counted as public offices under the constitutional dual-office rule.

What happened to the board seat on taking the magistrate office? A: The letter said the prior seat was vacated by operation of law once the second office was assumed.

Were a de facto board member’s actions automatically void? A: No. The opinion said acts involving the public or third parties remained effective unless a court declared them void or removed the de facto officer.

Background and statutory framework

The letter applied Article XVII, Section IA of the state constitution. It cited Sanders v. Belue for the exercise-of-sovereign-power test and State v. Crenshaw for other signs of a public office, such as statutory duties and qualifications.

Citations and references

• Sanders v. Belue: public-office test discussed by the AG.
• State v. Crenshaw: additional office-status considerations.

Official title

Concerning whether a dual office holding situation exists if a current member of the Allendale County School District Board is appointed magistrate for Allendale County.

Requester

Heather Lea Simmons, County Administrator, Allendale County

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/june-21-2001-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/11/01june-21-simmons.pdf

Original opinion text

7173 O(~

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLIE CONDON
ATTORNEY GENERAL

June 21, 2001
Heather Lea Simmons, County Administrator
Allendale County
P.O. Box 190
Allendale, South Carolina 29810
Dear Ms. Simmons,
By your letter of June 12, 2001, you have requested an opinion of this Office concerning dual office holding. You inform us that a current member of the Allendale County School District Board is being offered in consideration for an appointment to the position of magistrate for Allendale County. You ask whether simultaneous service in these position would violate State law. 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 concluded on many occasions that a magistrate holds an office for dual office holding purposes. See Ops. Atty. Gen. Oct. 8, 1998, Jan. 29, 1998, and Aug. 13, 1986 as representative of these numerous opinions. Furthermore, this Office has also concluded on many occasions that membership on a school district board of trustees would constitute an office for dual office holding purposes. See Ops. Atty. Gen. Oct. 5, 1993, Nov. 1, 1991 and Aug. 8, 1990. Based on these prior opinions, it is my opinion that membership on the Allendale County School District Board would constitute an office for dual office holding purposes. Thus, service in both positions simultaneously would contravene the Constitution's prohibition against dual office holding. Incidentally, 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,

REMBERT

c. DENNIS BUILDING

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POST OFFICE Box 11549

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COLUMBIA, S.C. 29211-1549

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TELEPHONE: 803-734-3970

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FACSIMfLE: 803-253-6283

Ms. Simmons
June 21, 2001
Page 2
assuming both offices fall within the purview of §Article XVII, 1A 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. Actions taken by a de facto officer in relation to the public or third parties will be considered as valid and effectual as those of a de jure officer unless or until a court would declare such acts void or remove the de facto officer from office. See Ops. Atty. Gen Apr. 8, 1996 and July 13, 1995. 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 question asked. It has not, however, been personally scrutinized by the Attorney General nor officially published in the manner of a formal opinion. With kind regards, I remain Very truly yours,

Susannah Cole
Assistant Attorney General

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