Could a sheriff’s reserve officer also serve on the Clemson City Council in 2005?

Plain-English summary

The Attorney General concluded in 2005 that a sheriff’s reserve officer who was not a commissioned constable could not simultaneously sit on Clemson City Council. The opinion treated both a reserve officer and a council member as public officers under South Carolina’s constitutional restriction on holding two offices.

The requester pointed to Clemson University police officers who had also served on the council. The AG distinguished them because those officers were commissioned constables, a category expressly excepted from the restriction. The requester’s reserve position did not qualify for that exception.

Currency note

This opinion was issued in 2005. 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

Why did the AG treat a reserve officer as holding an office?
The opinion followed earlier AG opinions that classified reserve police officers as officers for dual office holding purposes.

Why could the cited university police officers serve on council?
The AG said they were commissioned constables. The constitutional exception for constables explained the different result.

Did the constable exception cover a reserve officer without a commission?
No. The AG expressly concluded that the reserve officer described in the request did not qualify.

Background and statutory framework

The opinion applied the constitutional prohibition on holding two offices of honor or profit simultaneously. It described the test as whether each position exercises some portion of the state’s sovereign power and relied on its earlier treatment of council members and reserve officers.

Citations and references

• Article XVIl, Section 1A of the South Carolina Constitution: dual office holding restriction as printed in the source.
• Sanders v. Belue and State v. Crenshaw: public office criteria discussed in the opinion.

Official title

Concerning dual office holding, specifically if a reserve officer with the Sheriff’s office, who is not a commissioned constable, might simultaneously serve on the Clemson City Council.

Requester

Margaret J. Thompson

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/march-21-2005/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/05march-21Thompson.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
HENRY MCMASTER
An'ORNEY GENERAL

March 21, 2005

Ms. Margaret J. Thompson
117 Argon St.
Clemson, South Carolina 2963 1
Dear Ms. Thompson:
By your letter dated March 3, 2005, you have requested an opinion concerning dual office holding. In your letter, you specifically asked if a reserve officer with the Sheriffs office, who is not a commissioned constable, might simultaneously serve on the Clemson City Council. You mentioned that currently two Clemson University Police Officers simultaneously serve as councilmen and university officers. Upon review of your inquiry, this Office advises that a reserve officer may not simultaneously serve as a city councilman without violating the dual office holding prohibition.

Law/Analysis

L.

Article XVIl, Section 1A 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, member of a lawfully and regularly organized fire department, constable, or notary public. For this provision to be contravened, a person concurrently must bold 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). Furthermore, ''(O]ne who merely performs the duties required of him under an express contract or otherwise, though such persons themselves be public officers, and though the employment be in or about a public work or business, is a mere employee." Sanders, supra, 78 S.C. at 174. This Office has advised on numerous occasions that a member of a city or town council would be considered an officer for dual office holding purposes. See, Ops. S. C. Atty. Gen., April 12, 1998; June 12, 1995; February 4, 1994; July 23, 1993 ; July 24, 1991. Furthermore, this Office has advised on numerous occasions that reserve police officers are officers for purposes of dual office holding. See, Ops. SC Atty. Gen. dated February 5, 1988, May 2, 1989 and June 5, 1979.

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Ms. Thompson
Page2
March 21, 2005

In your letter, you allude to the fact that two Clemson University Police Officers currently serve as councilmen and university officers simultaneously and that this service has been authorized. We have previously advised that Clemson University Police Officers may serve as councilmen simultaneously without violating the dual office prohibition. See, Ops. S. C. Atty. Gen. October 15, 2003, February 26, 2001. The basis for our opinion was that these officers were commissioned constables, and that the position of constable falls under the exception to the dual office holding prohibition. See, Id.; See also, Ops. SC. Atty. Gen. January 25, 1999, June 3, 1998. We reaffirm this conclusion herein.

However, you note in your letter that your position as a reserve officer is not that of a commissioned constable. As noted above, it has been our consistent opinion that a reserve police officer is an officer for dual office holding purposes. Conclusion In accordance with previous opinions, we reaffirm our conclusion that city councilmen as

well as reserve officers are officers for purposes of dual office holding. Furthermore, a reserve officer is not a commissioned constable and therefore may not qualify for the dual office holding exception. Therefore, it is our opinion that it would be a violation of the dual office holding prohibition to simultaneously serve in both offices. Specifically, we advise that an individual may not simultaneously serve as a reserve police officer and as a councilman on the Clemson City Council without violating the dual office holding prohibition.

I
Assistant Deputy Attorney General