Could a South Carolina workers’ compensation commissioner also serve as a DNR deputy officer?

Plain-English summary

In 2015, the South Carolina Attorney General considered a workers’ compensation commissioner who also held a governor commissioned deputy law enforcement position with the Department of Natural Resources. It treated the workers’ compensation seat as a public office, but relied on a prior opinion classifying the commissioned DNR officer as a constable within the constitutional exception. On that reasoning, the combination did not violate the dual office holding ban.

The office reached a separate conclusion about conflicts: simultaneous service would create at least the appearance of a conflict of interest. It did not give a final interpretation of the Code of Judicial Conduct, instead deferring questions of judicial ethics to the Advisory Committee on Standards of Judicial Conduct.

Currency note

This opinion was issued in 2015. 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 the two roles violate South Carolina’s dual office holding ban?
A: The Attorney General said no, because it regarded the commissioned DNR officer as falling within the constitution’s constable exception.

Q: Did that settle every concern about serving in both roles?
A: No. The opinion said the combination presented the appearance of a conflict of interest.

Q: Did the Attorney General decide whether the Code of Judicial Conduct prohibited the second role?
A: No. It noted commissioners were bound by that code and deferred judicial ethics questions to the advisory committee.

Background and legal framework

The request concerned an interim commissioner who was also a DNR deputy officer. The opinion explained why a workers’ compensation commissioner was a public officer: the Legislature created the position and specified its duties, tenure, and compensation. It then applied the constable exception drawn from a prior DNR officer opinion, before considering the separate appearance of a conflict in roles combining adjudication and law enforcement.

Citations and references

The opinion cited S.C. Code Ann. § 42-3-250 for commissioners’ obligation under the Code of Judicial Conduct and discussed the constitutional exception for constables.

Official title

Regarding whether service as a workers’ compensation commissioner and a commissioned law enforcement officer violates the prohibition against dual office holding, and whether a workers’ compensation commissioner’s duties under the Code of Judicial Conduct prohibit service as a deputy law enforcement officer.

Requester

The Honorable T. Scott Beck, South Carolina Worker’s Compensation Commission.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/may-13-2015-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2015/05/Beck-S.-OS-9821-FINAL-Opinion-5-13-2015-00644000xD2C78.pdf

Original opinion text

0/'"SOUTtt
Alan Wilson
ATTORNEY GENERAL

May 13,2015

Tlie Honorable T. Scott Beck
Souili Carolina Worker's Compensation Commission
PO Box 1715

Columbia, SC 29202-1715
Dear Commissioner Beck:

This Office received your request for an opinion.

You explain that R. Michael Campbell, II was

appointed by Governor Haley as interim commissioner on the South Carolina Workers' Compensation Commission and that he also is a deputy law enforcement officer with the South Carolina Department of

Natural Resources.

You question whether service as a workers' compensation commissioner and a

commissioned law enforcement officer violates the prohibition against dual office holding.

You also

inquire as to whether a workers" compensation commissioner's duties under the Code of Judicial Conduct

prohibit service as a deputy law enforcement officer.
LAW/ANALYSIS:

The South Carolina Constitution provides that "no person may hold two offices of honor or profit at the same time. This limitation does not apply to officers in the militia, notaries public, members of lawfully and regularly organized fire departments, constables, or delegates to a constitutional convention."

S.C.

Const, art. IV § 3.

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 "ftjhe 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).

Rembert C. Dennis Building

¦

Post Office Box i 1549

. Columbia, SC 292 11- 1549

. Telephone 803-734-3970

• Facsimile 803-253-6283

The Honorable T. Scott Beck
Page 2

May 13,2015

Segars-Andrews v. Judicial Merit Selection Commission. 387 S.C. 109, 691 S.E.2d 453 (2010). "Other relevant considerations [as to whether a position is a public office] include: '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. Attv. Gen.. June 17, 2013 (2013 WL

3243063) (quoting State v. Crenshaw. 274 S.C. 475, 478, 266 S.E.2d 61,62 (1980)). The South Carolina Workers' Compensation Commission was created by section 42-3-10 of the South

Carolina Code. See S.C. Code Ann. § 42-3-10 (1976 Code, as amended). "The commission shall consist of seven members appointed by the Governor with the advice and consent of the Senate for terms of six

years and until their successors are appointed and qualify." S.C. Code Ann. § 42-3-20 (1976 Code, as amended). The commissioners shall have an annual salary of "eighty-five percent of the salary paid to the

circuit judges of the State." S.C. Code Ann. § 42-3-40 (1976 Code, as amended). The Commission is given a number of duties:

to hear and determine all contested cases, to conduct informal conferences

when necessary, to approve settlements, to hear applications for full commission reviews, and to handle such other matters as may come before the department for judicial disposition (S.C. Code Ann. § 42-3-20

(1976 Code, as amended)); to promulgate all regulations relating to the administration of the workers' compensation laws ((S.C. Code Ann. § 42-3-30 (1976 Code, as amended)); to subpoena witnesses,

administer oaths, and examine or cause to be examined books and records of the parties relating to the questions in dispute ((S.C. Code Ann. § 42-3-140 (1976 Code, as amended)); to order a person to appear before the commission or produce evidence and to punish as contempt a failure to obey such order ((S.C.

Code Ann. § 42-3-150 (1976 Code, as amended)); to impose sanctions for failure to obey an order ((S.C.

Code Ann. § 42-3-175 (1976 Code, as amended)); and to determine all workers' compensation questions not agreed upon by the parties ((S.C. Code Ann. § 42-3-180 (1976 Code, as amended)).

Since the Legislature created the position of workers' compensation commissioner and provided for the duties, tenure, and salary of the commissioners, it is our opinion that a commissioner is a public officer.

You question whether a deputy law enforcement officer with the South Carolina Department of Natural

Resources (DNR) holds an office. You state in your letter that a deputy law enforcement officer with DNR is an office commissioned by the Governor. In Op. S.C. Attv. Gen.. September 17, 2003 (2003 WL 22378702), we determined the following: Based upon the Court's analysis in Richardson v. Town of Mt. Pleasant,

supra [350 S.C. 291, 566 S.E.2d 523 (2002)], it appears that DNR officers who are commissioned by the Governor fall within the exemption for "constables" contained in Article XVII, § 1 A. Thus, any DNR officer who is in such category and who holds another office would not be dual office holding in contravention of the Constitution. We believe that Mr. Campbell is not contravening the Constitutional prohibition against dual office holding because while a workers' compensation commissioner exercises the sovereign power of the State,

a commissioned law enforcement officer with DNR is a constable and thus is exempt from dual office holding.

The Honorable T. Scott Beck
Page 3
May 13,2015

Your next question is whether a workers' compensation commissioner's duties under the Code of Judicial

Conduct prohibit service as a deputy law enforcement officer with DNR.

S.C. Code Ann. § 42-3-250
(1976 Code, as amended) provides that workers' compensation commissioners "are bound by the Code of

Judicial Conduct, as contained in Rule 501 of the South Carolina Appellate Court Rules. . ." We defer to the Advisory Committee on Standards of Judicial Conduct on matters ofjudicial ethics and you may wish to contact it. However,, we believe you are asking if it would be a conflict of interest for a

workers' compensation commissioner to also serve as a deputy law enforcement officer with DNR. In Op. S.C. Attv. Gen.. September 1, 2009 (2009 WL 3208462), we advised "against serving simultaneously as a State constable and a part-time magistrate, since doing so would present at least the appearance of a

conflict of interest, if not an actual conflict." We based this upon case law and our prior opinions. See

O' Shields v. Caldwell. 207 S.C. 194, 35 S.E.2d 184 (1945) ("[ejvery public officer is bound to perform the duties of his office honestly, faithfully, and to the best of his ability, in such manner as to be above

suspicion of irregularities, and to act primarily for the benefit of the public"); Op. S.C. Attv. Gen.. January 25, 2006 (2006 WL 26961 1) ("a magistrate must maintain the appearance of being neutral and detached"); Op. S.C. Attv. Gen.. July 25, 2002 (2002 WL 1925752) ("[pjublic employees must be above

reproach and avoid even the appearance of a conflict of interest in carrying out their duties"). Based upon our September 1, 2009 opinion, this Office believes that service as a workers' compensation

commissioner and as a deputy law enforcement officer with DNR would present the appearance of a conflict of interest. CONCLUSION:

Although service as a workers' compensation commissioner and a deputy law enforcement officer with DNR does not contravene the State Constitutional prohibition against dual office holding, it is our opinion that it has the appearance of a conflict of interest.

Please be aware that this is only an opinion as to how this Office believes a court would interpret the law in this matter. Sincerely, t

Elinor V. Lister
Assistant Attorney General
REVIEWED AND APPROVED BY:

bert D. Cook

Solicitor General