Did retaining a retired South Carolina officer’s commission preserve the officer’s power to enforce the law?

Plain-English summary

The Forestry Commission asked about a statute allowing retired state law enforcement officers to retain commissions and service weapons. It was concerned that keeping a retired commission might preserve enforcement powers or expose the agency to liability. In a June 2002 informal opinion, the AG distinguished an officer's commission from the certification needed to enforce state law.

The AG said that certification depended on ongoing employment and that retirement caused the certification to lapse or be returned. A retired officer could therefore retain a commission in retired status without retaining active law enforcement authority. The letter did not separately resolve whether the commission could let a retiree keep only a weapon while declining all other retired privileges, and it did not determine an agency's liability in a particular event.

Currency note

This opinion was issued in 2002. 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 a retired commission let the officer continue enforcing the law? A: No. The AG said a retired commission did not replace the certification needed for law enforcement authority.

Q: Why would an officer's certification end at retirement? A: The letter said certification required employment by a law enforcement agency, and retirement was a separation from employment.

Q: Did the opinion decide whether the Commission could let retirees keep only their weapons? A: The request raised that question, but the letter's analysis answered the concern about enforcement power. It did not give a separate conclusion on a weapons-only arrangement.

Background and statutory framework

The opinion quoted §23-1-225's retired-commission language and discussed the employment requirement for certification under §23-6-400(D)(l). It treated a commission, certification, and enforcement authority as distinct for the Forestry Commission's concern.

Citations and references

• §23-1-225: commissions and service weapons in retired status.
• §23-6-400(D)(l): employment element of the officer definition quoted in the letter.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/june-6-2002/
• Original PDF: https://www.scag.gov/wp-content/uploads/2002/06/02june-6-kelly.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLES M. CONDON

June 6, 2002

ATIORNEY GENERAL

i

L

Mr. William Kelly, Jr.
South Carolina Forestry Commission
P.O. Box 29207
Columbia, South Carolina 29221
Re:

S.C. Code Ann. §23-1-225

Dear Mr. Kelly:

l

In a letter to this Office, you have requested an opinion on the scope of S.C. Code Ann. §231-225. That Section provides as follows: Upon retirement, state law enforcement officers may retain their commissions in retired status with all rights and privileges, including the right to retain their service weapons issued while serving in active duty status. By way of background, you indicate that the "South Carolina Forestry Commission does not desire to continue any law enforcement commissions of retirees to eliminate any risk of exposure to litigation against the Commission and/or the State of South Carolina for any actions that retirees may take with 'their rights and privileges of their commissions in retired status.' The Commission would be agreeable to allowing the retirees in law enforcement to retain their service weapons issued while serving in active duty as appreciation for their years of service." Given this background, you ask the following questions:"[ d]oes the section allow for retirees to retain their assigned weapon alone? ... [and] ... are the rights and privileges in retired status the same as with other retirees?" In a telephone conversation regarding your request, you indicated that the Commission's main concern was the potential for liability should a retiree take some law enforcement action based on the retention of their commission as a state law enforcement officer. In responding to your concerns, a distinction must be drawn between the commission a law enforcement officer receives upon being hired by an agency and his or her certification as a law enforcement officer. A law enforcement officer is certified by the South Carolina Department of Public Safety after meeting and then maintaining certain standards and qualifications. Section 23-6430 provides that certification by the Department of Public Safety is a prerequisite to the law enforcement officer's authority to" ... enforce the laws or ordinances of this State or any political

j)

REMBERT

c. DENNIS BUILDING

J.J/ /U//.4r/ r'V!-#71,

•

POST OFFICE Box 11549

•

COLUMBIA, S.C. 29211-1549

•

TELEPHONE'. 803-734-3970

•

FACSIMILE: 803-253-6283

Mr. Kelly
Page 2
June 6, 2002

I

L

subdivision thereof .... " In order to maintain certification, a law enforcement officer must maintain his employment. In fact, for purposes of certification, the definition of'" [l]aw enforcement officer' means an appointed officer or employee hired by and regularly on the payroll of the State or any of its political subdivisions .... " See S.C. Code Ann. §23-6-400(D)(l) (Emphasis added). Therefore, an individual must be employed by a state or local agency to be considered a law enforcement officer. Further, Department of Public Safety regulations provide that "[a]ll law enforcement agencies and other employers oflaw enforcement officers are required to notify the Department [of Public Safety] when an officer leaves the employment of the agency/employer, regardless of the reason for the separation, and return to the Department [of Public Safety] any certification card which has previously been issued to the officer." Retirement would qualify as a separation of employment resulting in the return or lapse of the law enforcement officer's certification. Accordingly, while Section 23-1-225 may allow a retired state law enforcement officer to retain his or her commission, it does not allow the officer to retain his or her authority to " ... enforce the laws or ordinances of this State or any political subdivision thereof ... " as ifhe or she remained a certified law enforcement officer. Therefore, the rights and privileges of a commission in retired status would not include law enforcement authority and a state agency, such as the Forestry Commission, would not be granting the retiree law enforcement authority simply by allowing him or her to retain the commission.

I

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 and not officially published in the manner of a formal opinion.

David K. Avant
Assistant Attorney General
DKA/an