Could a Marion County detention center lieutenant also serve on county council?

Plain-English summary

In 2018, a senator asked whether someone could serve on Marion County Council while working as a lieutenant at the county detention center. The Attorney General concluded that the two positions could not be held together. Earlier opinions treated council membership as a public office and a county correctional officer as exercising the state’s police power.

The opinion also relied on the statute barring county council members from holding another government office of honor or profit, subject to the exceptions it identified. Its conclusion addressed the described correctional officer position, not every detention center job.

Currency note

This opinion was issued in 2018. 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 Marion County detention center lieutenant sit on county council?
A: The AG concluded no. It treated the council seat and the described correctional officer role as two offices covered by the constitutional bar.

Q: Why did the AG treat a correctional officer as a public officer?
A: It relied on an earlier opinion that identified a correctional officer’s peace officer status and continuing law enforcement duties within the correctional system.

Q: Did the opinion decide the status of every jail employee?
A: No. The request described a correctional officer holding the rank of lieutenant, and the conclusion was framed for that role.

Background and statutory framework

The opinion quoted the South Carolina Constitution’s ban on simultaneously holding two offices of honor or profit. It explained the test for a public office as continuing duties involving some sovereign power. It then applied prior AG opinions about county council and correctional officers. The opinion separately cited the statutory restriction on other government offices held by council members.

Citations and references

• The opinion concluded that the combination “violates both the constitutional prohibition against dual office holding and Section 4-9-100 of the South Carolina Code.”
• It described the correctional officer’s “day-to-day duty of preserving law and order as well as enforcing the law within the correctional system.”

Official title

On dual office holding (employee of Marion County Detention Center and serve as member of the Marion County Council).

Requester

The Honorable Kent Williams, Member, South Carolina Senate.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/march-8-2018/
• Original PDF: https://www.scag.gov/wp-content/uploads/2018/03/Williams-K.-OS-10241-FINAL-Opinion-3-8-2018-01619950xD2C78.pdf-01620000xD2C78.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

ALAN WILSON
ATTORNEY GENERAL

March 8, 2018

The Honorable Kent M. Williams, Member
South Carolina Senate

PO Box 142

Columbia, SC 29202

Dear Senator Williams:

You have requested an opinion from this Office regarding whether an individual can serve as both a member of the Marion County Council and as a correctional officer (rank of lieutenant) at the Marion County Detention Center.

LAW/ANALYSIS:
Dual office holding is prohibited by the South Carolina Constitution, which provides:

{nJo person may hold two offices of honor or profit at the same time, but any person holding another office may at the same time be an officer in the militia, member of a lawfully and regularly organized fire department, constable, or a notary public...The limitation above set forth does not prohibit any officeholder from being a delegate to a constitutional convention.

S.C. Const, art. XVII § 1 A.
The South Carolina Supreme Court explains that an “office” for dual office holding purposes is:

“One who is charged by law with duties involving an exercise of some part of the sovereign power, either small or great, in the performance of which the public is concerned, and which are continuing, and not occasional or intermittent, is a public officer.” Sanders v. Belue, 78 S.C. 171, 174, 58 S.E. 762, 763 (1907). “In considering whether a particular position is an office in the constitutional sense, it must be demonstrated that “[t]he power of appointment comes from the state, the authority is derived from the law, and the duties are exercised for the benefit of the public.” Willis v. Aiken County, 203 S.C. 96, 103 26 S.E.2d 313, 316 (1943). “The powers conferred and the duties to be discharged with regard to a public office must be defined, directly or impliedly, by the legislature or through legislative authority...” 63C Am Jur.2d Public Officers and Employees § 5 (2009).

[ueniBERT C, DENNIS BUILDING POST OFFICE BOX 11549» COLUMBIA, SC 29211-1549 © TELEPHONE 803-734-3970 © FACSIMILE 803-253-6283

The Honorable Kent M. Williams
Page 2
March 8, 2018

Segars-Andrews v. Judicial Merit Selection Commission, 387 S.C. 109, 691 S.E.2d 453 (2010). Other relevant considerations are: “whether the position was created by the legislature; whether the

qualifications for appointment are established; whether the duties, tenure, salary, bond, and oath are prescribed or required; whether the one occupying the position is a representative of the sovereign; among others.” See Op. S.C. Atty. Gen., 2013 WL 3243063 (June 17, 2013) (quoting State v. Crenshaw, 274 S.C. 475,478,266 S.E.2d 61, 62 (1980).

Our Office has concluded that a county council member is a public officer in several prior opinions. “This Office has consistently advised that a position on a county council constitutes an office.” Op. S.C. Atty. Gen., 2014 WL 1398598 (February 3, 2014) (quoting Op. S.C. Atty. Gen., 1977 WL 24461, No. 77
— 119 (April 26, 1977).

Our Office also has concluded in a previous opinion that a county correctional officer holds an office. See Op. S.C. Atty. Gen., 2010 WL 1370081 (March 12, 2010). In an opinion dated March 12, 2010, our Office summarized certain prior opinions and opined that a county correctional officer exercises a portion of the sovereign power of the State because of his status as a peace officer’ and his “day-to-day duty of preserving law and order as well as enforcing the law within the correctional system.” Id. at *2.

When these prior opinions of our Office are read together, the resulting conclusion is that concurrently serving as both a member of a county council and a county correctional officer would violate South Carolina's constitutional prohibition on dual office holding. See Ops. S.C. Att'y Gen., supra. Furthermore, the South Carolina Code provides that county council members are prohibited from holding any other office of honor or profit in government, except military commissions and commissions as notaries public. See S.C. Code Ann. § 4-9-100 (1976 Code, as amended). Accordingly, we believe that service as both a member of the Marion County Council and as a correctional officer (rank of lieutenant) at the Marion County Detention Center would violate both the constitutional prohibition against dual office holding and section 4-9-100.

CONCLUSION:
It is our opinion that service as both a member of the Marion County Council and as a correctional officer

(rank of lieutenant) at the Marion County Detention Center violates both the constitutional prohibition against dual office holding and Section 4-9-100 of the South Carolina Code.

" See S.C. Code Ann, § 23-1-145, which states:

Employees of any county or municipal jail, prison, work camp or overnight lockup facility, while performing their officially assigned duties relating to the custody, control, transportation or recapture of any inmate or prisoner in this State, shall have the status of peace officers anywhere in the State in any matter relating to the custody, control, transportation or recapture of such inmate or prisoner. Provided, that for the purposes of this section no trustee shall be considered an employee.

The Honorable Kent M. Williams
Page 3
March 8, 2018

Sincerely, .
Elinor V. Lister

Assistant Attorney General

REVIEWED AND APPROVED BY:

Robert D. Cook
Solicitor General