Could a county council member volunteer as an associate municipal judge in 1998?

Plain-English summary

Hilton Head Island's legal director asked whether a county council member could volunteer without pay as an interim associate municipal judge while the regular associate judge was on medical leave. The Attorney General said the arrangement would violate South Carolina's constitutional dual office holding prohibition. Earlier AG opinions had treated both a county council seat and a part-time or associate municipal judgeship as public offices.

The letter did not treat the absence of pay or the temporary nature of the proposed service as removing the conflict. It addressed the constitutional office holding question for the positions described, without analyzing any other possible issue from the law partnership mentioned in the request.

Currency note

This opinion was issued in 1998. 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 volunteering without pay avoid the dual office problem?
A: No. The AG said the county council member could not simultaneously serve as associate municipal judge under the constitutional rule.

Q: Why did the AG count an associate judge as an office?
A: The letter relied on earlier AG opinions classifying part-time and associate municipal judgeships as public offices.

Q: Did the medical leave change the result?
A: No exception based on the proposed interim service appeared in the AG's answer.

Background and statutory framework

The opinion applied the state constitutional bar on holding two offices of honor or profit at the same time. It used prior AG classifications of the two posts to resolve the proposed temporary appointment.

Citations and references

• Article XVII, Section IA of the State Constitution, the dual office holding provision quoted in the letter.

Official title

Asking whether the dual office holding prohibitions of the State Constitution would be violated if the appointed associate judge’s law partner, also a member of county council, voluntarily (no pay) assists by assuming judicial responsibilities until the appointed associate judge returns from medical leave.

Requester

Gregory D. DeLoach, Esquire, Legal Department Director, Town of Hilton Head Island

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/june-22-1998-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/11/98june22deloach.pdf

Original opinion text

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The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLES M. CONDON
ATTORNEY GENERAL

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June 22, 1998

Gregory D. Deloach, Esquire
Legal Department Director
Town of Hilton Head Island
One Town Center Court
Hilton Head Island, South Carolina 29928
Re:

Informal Opinion

Dear Mr. Deloach:
Your opinion request has been forwarded to me for reply. You have informed this Office that the Town of Hilton Head Island operates a municipal court. The court's associate judge is on medical leave and its town appointed judge has sought additional help until such time as the associate judge resumes his duties. The appointed judge's law partner has volunteered (no pay) to assist by assuming judicial responsibilities. The law partner is a member of county council. You have asked whether the dual office holding prohibitions of the State Constitution would be violated if this individual were to serve as interim associate judge. 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).

REMBERT

c. DENNIS BUii.DiNG

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POST OFFICE Box 11549

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COUJMlllA,

s.c. 29211-1549

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TELEPHONE: 803-734-3970

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FACSIMILE: 803-253-6283

Mr. Deloach
Page 2
June 22, 1998
This Office has previously concluded that the position of part-time or associate municipal court judge would considered an office for dual office holding purposes. Ops. Atty. Gen. dated May 30, 1997 and May 3, 1982. We have also advised on numerous occasions that a member of county council would be considered an office holder for dual office holding purposes. Ops. A!!y. Gen. dated June 27, 1997, May 16, 1995, and December 20, 1993. Accordingly, if an individual were to simultaneously serve as an associate municipal court judge and as a member of county council, the dual office holding prohibitions of the Constitution would be violated.

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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 kindest regards, I remain Very truly yours,

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Paul M. Koch
Assistant Attorney General

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