Could a Moncks Corner volunteer firefighter also serve on the rural fire commission that supervised the department?

Plain-English summary

Moncks Corner’s town attorney asked in 2009 whether a volunteer firefighter could also serve as an officer of the rural fire commission. The South Carolina Attorney General said the state constitutional dual-office ban did not itself prevent the combination. Fire commission board service counted as an office, but the Constitution excepted membership in a lawfully and regularly organized fire department.

The opinion identified a separate common-law problem. If the commissioners supervised the firefighters, one person serving in both roles would occupy a master–servant relationship. The Attorney General said that conflict would most likely prevent simultaneous service, even though the constitutional dual-office provision did not. Its conclusion depended on the stated assumption about supervisory authority.

Currency note

This opinion was issued in 2009. 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: Was a fire commission seat a public office for the dual-office test? A: The Attorney General said yes, following earlier opinions about fire commission boards.

Q: Did volunteer fire department membership count as a prohibited second office? A: No under the state constitutional provision discussed. It expressly excepted membership in a lawfully and regularly organized fire department.

Q: Did that exception guarantee a commissioner could also be a firefighter? A: No. The opinion said supervision by commissioners would most likely create a separate common-law conflict between the two roles.

Q: Why did supervision matter?
A: The cited common-law analysis treated a person’s simultaneous position as supervisor and subordinate as incompatible, regardless of the person’s integrity.

Background and statutory framework

The Attorney General applied the constitutional exception for fire department members after treating commission membership as an office. It then quoted a prior opinion on the common-law master–servant rule and a South Carolina Supreme Court case concerning commissioners employing themselves. The letter presumed that the fire commission had supervisory power over the department’s firefighters.

Citations and references

Authorities discussed: the South Carolina Constitution’s fire-department exception to the dual-office prohibition and the common-law master–servant rule described in the opinion.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/june-23-2009-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/williams-j-b-os-8807-6-23-09-dual-office-holding.pdf

Original opinion text

HENRY McMASTER
A'ITOR NEY GENERAL

June 23, 2009

John B. Williams, Esquire
Moncks Comer Town Attorney
209 East Main Street
Moncks Corner, South Carolina 29461
Dear Mr. Williams:
In a letter to this office you questioned whether it is a violation of the dual office holding provisions of the State Constitution for an individual who is a member of the Moncks Corner Rural Volunteer Fire Department to also serve as an officer ofthe Moncks Corner Rural Fire Commission.

Article XVII, Section lA of the South Carolina 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, a member of a lawfully and regularly organized fire department, a constable, or a notary public. For this provision to be contravened, a person concurrently must hold two 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 in prior opinions concluded that a member of a fire commission board is an officer for dual office holding purposes. See: Ops. Atty. Gen. dated December 5, 2008; March 3, 2004; January 19, 1994; and December 29, 1983. Therefore, in the opinion of this office, an officer of the Moncks Comer Rural Fire Commission would similarly hold an office for dual office holding purposes. As noted above, there is an exception in Article XVIl, Section lA of the State Constitution from consideration as an officer for dual office holding purposes of "a member of a lawfully and regularly organized fire department." Therefore, this office has concluded in numerous opinions that a member of "a lawfully and regularly organized fire department" is not a position considered to be an office for dual office holding purposes. See: Ops. Atty. Gen. dated June 14, 2007; July 25, 2005; January 23, 2001; June 13, 1996. As a result, there would not be any dual office holding violations

REMBERT c. DENNIS B UILDTNG

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POST OFFICE Box I L549

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COLUMB IA, SC 292 11-1549

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T ELEPHONE 803-734-3970

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FACSIMU..E 803-253-6283

Mr. Williams
Page2
June 23, 2009

for an an officer of the Moncks Comer Rural Fire Commission could also serving as a member of the Moncks Comer Rural Fire Department. However, if one individual was to serve in both capacities, such service could give rise to a master-servant problem. In an opinion of this office dated April 5, 2007 it was stated that Despite finding article XVII, section 1A does not prohibit an individual from serving both on a fire department's commission and as a volunteer firefighter for the same entity, such simultaneous service may create a master-servant relationship that is prohibited under South Carolina common law. In a past opinion, we summarized this relationship as follows:
[A] conflict of interest exists where one office is subordinate to the other, and subject in some degree to the supervisory power of its incumbent, or where the incumbent of one of the offices has the power of appointment as to the other office, or has the power to remove the incumbent of the other or to punish the other. Furthermore, a conflict of interest may be demonstrated by the power to regulate the compensation of the other, or to audit his accounts.
[I]t is not the performance, or the prospective right of performance, of inconsistent duties only that gives rise to incompatibility, but the acceptance of the functions and obligations growing out of the two offices .... The offices may be incompatible even though the conflict in the duties thereof arises on but rare occasions .... In any event, the applicability of the doctrine does not tum upon the integrity of the officeholder or his capacity to achieve impartiality. Op. S.C. Atty. Gen., March 26, 1999 (quoting 67 C.J.S. Officers§ 27). Furthermore, the South Carolina Supreme Court in McMahan v. Jones, 94 S.C. 362, 365, 77 S.E. 1022, 1023 (1913), declaring the employment of two commissioners by the commission illegal, stated: No man in the public service should be permitted to occupy the dual position of master and servant; for, as master, he would be under the temptation of exacting too little of himself, as servant; and, as servant, he would be inclined to demand too much of himself, as master. There would be constant conflict between self-interest and integrity. Presuming that the fire department commissioners to whom you refer in your letter act in a supervisory capacity over the firefighters, in keeping with our prior opinions, we believe a master-servant conflict would arise prohibiting such individuals from serving in both capacities. As a result, inasmuch as firefighters are specifically exempt from the dual office holding prohibition contained in the South Carolina Constitution, we do not believe this provision prevents a firefighter from serving as a commissioner for a fire department. However, such simultaneous service most

Mr. Williams
Page 3
June 23, 2009

likely creates a master-servant conflict of interest in degradation of the common law. Thus, if such a conflict exists, one may not serve as both a firefighter for a particular fire department while serving on its commission. With kind regards, I am, Very truly yours, Henry McMaster Attorney General

ftdrff(~.___
By:

REVIEWED AND APPROVED BY:

~·~
Robert D. Cook
Deputy Attorney General

Charles H. Richardson
Senior Assistant Attorney General