Could a Barnwell County employee keep her job while running for clerk of court?

Plain-English summary

A Barnwell County salaried employee asked in 2008 whether she could continue working for the county while campaigning for the elected clerk-of-court position, provided she did not campaign during work hours. The Attorney General knew of no state statute prohibiting a county employee from running for elected office. It cautioned that a county or county agency might have its own limiting policy and suggested asking the employer whether such a policy existed.

The AG saw no dual-office problem on the assumptions that her salaried job was not itself an office and that she would give it up if elected clerk. It did not decide whether her campaigning complied with the Ethics Act; it directed that question to the State Ethics Commission.

Currency note

This opinion was issued in 2008. 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

Did state law bar a county employee from running for clerk of court?

The AG said it knew of no state statute barring a county employee from seeking elected office. It cautioned that an employer’s local rules might still limit the activity.

Could the employee remain in her salaried job if she won?

The opinion’s no-dual-office answer assumed she would leave that job upon election and that the job was not itself a public office. It did not decide what would happen if she kept both positions.

Did promising to campaign outside work hours resolve the ethics question?

The AG did not decide whether the proposed campaigning complied with the Ethics Act. It identified the State Ethics Commission as the authority to interpret that Act.

Background and statutory framework

The opinion quoted Article XVII, Section 1A of the South Carolina Constitution, which barred holding two offices of honor or profit at once, subject to specified exceptions. It explained that the constitutional concern arose when a person concurrently held two public offices involving sovereign power, and noted that clerk of court was an office for this purpose. Its conclusion depended on the stated assumptions about the requester’s salaried role and departure from that job if elected.

Citations and references

• Article XVII, Section 1A: state constitutional dual-office provision quoted in the opinion.
• Sanders v. Belue: sovereign-power criterion for an office.
• State v. Crenshaw: other factors relevant to whether a position is an office.

Official title

Questioning whether a Barnwell County salaried employee can also legally serve as clerk of court.

Requester

Debra Fickling, Barnwell County

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/march-6-2008-2/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/04/fickling-d-os-8568-3-6-08-dual-office-holding.pdf

Original opinion text

March 6, 2008

Ms. Debra Fickling
841 Shipes Bluff Road
Blackville, South Carolina 29817
Dear Ms. Fickling:
In a letter to this office you indicated that you are currently a salaried employee of Barnwell County and are interested in seeking a county-wide elected office, that of clerk of court, in the upcoming election. You have questioned the legalities of your continuing employment with the county while seeking this elective position as long as you do not campaign during your work schedule. Generally, I am unaware of any State statutory provision which prohibits a county employee from running for elected office. See: Ops. S.C. Atty. Gen. dated September 29, 2006, June 12, 1992 and January 29, 1980. However, consistent with these opinions, we must caution that despite the absence of a State law prohibiting an employee from seeking elected office, some counties or county agencies may have their own policies and regulations that limit or prohibit an employee from engaging in such activities. Therefore, we suggest you seek guidance from your employer as to whether such a policy exists. As to any dual office holding concerns, Article XVII, 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, 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). Prior opinions of this office have concluded that a clerk of court is an officer for dual office holding purposes. See, e.g., Ops. Atty. Gen. dated March 3, 1993 and September 5, 1973. However, dual office holding concerns only arise upon the assumption of an office after election and inasmuch as your are presently a salaried employee of Barnwell County, which I assume would not qualify as an office for dual office holding purposes, and I assume that you would give up the

Ms. Fickling
Page 2
March 6, 2008
salaried position upon election as clerk of court, there would be no dual office holding concerns at issue. If you desire an analysis of whether your campaigning would violate this State’s Ethics Act, you must contact the State Ethics Commission. The State Ethics Commission is specifically granted the authority to interpret the Ethics Act. If there are any other questions, please advise. Sincerely, Henry McMaster Attorney General

By:

REVIEWED AND APPROVED BY:

______
Robert D. Cook
Deputy Attorney General

Charles H. Richardson
Senior Assistant Attorney General