Could a Beaufort County deputy sheriff also serve on the Sheldon Township Fire District Commission?

Plain-English summary

A sheriff asked whether one person could be both a Beaufort County deputy sheriff and a Sheldon Township Fire District commissioner. The AG said the combination would likely violate South Carolina's constitutional ban on holding two covered offices at once. It treated deputies as officers for this purpose and saw no reason to treat this fire district commission differently from commissions addressed in earlier AG opinions.

The opinion explained the consequence conditionally: if both posts were covered offices, accepting the second would automatically vacate the first. The person could continue acting in the first role as a de facto officer until a successor was selected, and acts affecting the public or third parties would generally remain effective unless a court ruled otherwise.

Currency note

This opinion was issued in 2004. 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: Could a sheriff's deputy simultaneously sit on the Sheldon Township Fire District Commission?
A: The AG said doing so would likely violate the constitutional dual office rule, based on how it classified deputy sheriffs and similar fire district commissioners.

Q: Which post would be vacated if both counted as covered offices?
A: The AG said the first office would be deemed vacant when the person assumed the second.

Q: Would actions taken in the old post immediately become invalid?
A: The AG described the former holder as a de facto officer until a successor was selected, with actions concerning the public or third parties generally effective unless a court ruled otherwise.

Background and statutory framework

The opinion described Article XVII, Section 1A of the South Carolina Constitution as prohibiting simultaneous holding of two offices of honor or profit, subject to specified exceptions. It cited Sanders v. Belue on exercise of sovereign power and State v. Crenshaw on additional signs of an office. It used earlier AG opinions about deputy sheriffs and fire district boards to apply that test, then cited Walker v. Harris in discussing the resulting vacancy.

Citations

• Sanders v. Belue
• State v. Crenshaw
• Walker v. Harris

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/march-3-2004/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/04fmarch3tanner.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
HENRY McMAsn:R

March 3, 2004

A1TORNEY GENERAL

The Honorable P. J. Tanner
Beaufort County Sheriff
P.O. Box 1758
Beaufort, South Carolina 2990 l
Dear Sheriff Tanner:
You have requested an opinion from this Office concerning dual office holding. You have indicated that a deputy sheriffunder your command has recently been appointed as a commissioner for the Sheldon Township Fire District. Your ask whether simultaneously holding the positions of Beaufort County Deputy Sheriff and Sheldon Township Fire District Commissioner would violate the dual office holding provisions of the South Carolina Constitution.

Law/Analysis
I
Article XVU, Section IA of the State Constitution prpvides that "no person may hold two offices ofh0fl0f Of profit at the same time ... II 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 offices which have duties involving an exercise of some portion ofthe sovereign power ofthe State. Sanders v. Belue, 78 S.C. 171, 58 S.E. 762 (I 907). 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). I have located three prior dual office holding opinions, issued by this Office, where the positions in question were deputy sheriffand commissioner (or member) ofa local fire district board. In all three opinions, we concluded that a person who simultaneously held both positions would violate the dual office holding provisions of the State Constitution. Ops. S.C. Atty. Gen. dated December 19, 2003 (deputy sheriff and Commissioner of the HolJy Springs Volunteer Fire District) (copy enclosed); December 13, 1995 (sheriffdeputy and Commissioner of the Board of Fire Control of the Croft Fire District) (copy enclosed); June 11 , 1992 (deputy sheriff and as a member of the North Spartanburg Fire District Commission). This Office has also long held that a county deputy sheriff is without exception considered an officer for dual office holding purposes. See, as representative of those numerous opinions, Ops.

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POST OmcE Box 11549 • CoLtJMBIA, S.C. 29211-1549 • TELEPHONE: 803-734-3970 • FACSIM.n.E: 803-253-6283

The Honorable P. J. Tanner
Page2
March 3, 2004

S.C. Atty. Gen. dated December 19, 2003 (enclosed); January 8, 1986; September 24, 1982; March 6, 1979. In addition to the aforementioned opinions regarding fire district commissioners and deputy sheriffs, this Office has also opined in other specific instances that commissioners for local fire control districts hold offices for dual office holding purposes. See Ops. S.C. Atty. Gen. dated January 19, 1994 (member of Cherokee Springs Board of Fire Control would be an office holder); September 18, 1986 (member of Chester County Board of Fire Control would be an office holder); November 18, 1983 (member of Monarch Fire Department Board of Trustees would be considered an office holder); and November 30, 1963 (commissioner of the Converse Area Fire District would be considered an office holder). There appears to be no reason to treat any differently a commissioner of the Sheldon Township Fire District. Based on the forgoing authorities, it is the opinion of this Office that a person who simultaneously holds the positions of Beaufort County Deputy Sheriff and member of the Sheldon Township Fire Commission would likely violate the constitutional prohibition on dual office holding. When a dual office holding situation occurs, the law operates automatically to "cure" the problem. If an individual holds one office on the date he assumes a second office, assuming both offices fall within the purview of Article XVII, Section IA 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 held. Thus, the law operates automatically to create a vacancy in that first office. However, the individual may continue to perform the duties of the previously held office as a de facto officer, rather than de jure, until a successor is duly selected to complete his term of office (or to assume his duties if the term of service is indefinite). See Walker v. Harris, 170 S.C. 242 (1933); Dovev. Kirkland, 92 S.C. 313 (1912); Statev. Coleman, 54 S.C. 282 (1898); Statev. Buttz, 9 S.C. 156 ( 1877). Furthermore, actions taken by a de facto officer in relation to the public or third parties will be as valid and effectual as those of a de jure officer unless or until a court should declare such acts void or remove the individual from office. See, for examples, State ex rel. McLeod v. Court of Probate of Colleton County, 266 S.C. 279, 223 S.E.2d 166 (1976); State ex rel. McLeod v. West, 249 S.C. 243, 153 S.E.2d 892 (1967); Kittman v. Ayer, 3 Stob. 92 (S.C. 1848). Very truly yours,

Assistant Deputy Attorney General
Enclosures