Could Charleston County’s human services director serve on Hollywood Town Council?

Plain-English summary

Hollywood’s lawyer asked whether the executive director of the Charleston County Human Services Commission could run for or serve on town council. The AG concluded that the director position, as described, was employment rather than a public office. Because town council membership was an office but the director job was not, holding both would not violate South Carolina’s dual-office prohibition. The opinion also assumed the two bodies had no duties or responsibilities involving each other.

The commission was described as federally funded. The AG therefore identified a separate possible Hatch Act issue and advised contacting the federal Office of Special Counsel for a conclusive answer. He did not decide whether that federal law barred candidacy or service.

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

Did the AG find a state dual-office conflict?
No. He treated the executive director as an employee rather than an officeholder on the duties supplied in the request.

Was a Hollywood council seat an office?
Yes. The AG said town council members held public office for the constitutional test.

Did the opinion clear the director to run under the Hatch Act?
No. Because of the commission’s federal funding, the AG referred that question to federal officials.

Background and statutory framework

The letter applied Article XVII, Section IA of the South Carolina Constitution, asking whether both positions exercised sovereign power. It distinguished commission executive directors, generally treated as employees in earlier AG opinions, from elected council members.

Citations and references

The original text cites Sanders v. Belue, 78 S.C. 171, 58 S.E. 762 (1907), and advises the requester to contact federal officials “to obtain a more conclusive answer” about the Hatch Act.

Official title

Regarding whether a conflict of interest would arise from the Executive Director of the Charleston County Human Services Commission running as a candidate or being elected to the Hollywood Town Council.

Requester

Alyson C. Fudge, Esquire

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/may-3-2005/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/05may3fudge.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
HENRY MCMASTER
ATTORNEY GENERAL

I

May 3, 2005

Alyson C. Fudge, Esquire
Legal Counsel for the
Town of Hollywood, South Carolina
710 Johnnie Dodds Boulevard, Suite 320
Mt. Pleasant, South Carolina 29464
Dear Ms. Fudge:
You have requested that this Office issue an opinion regarding whether a conflict of interest would arise from the Executive Director of the Charleston County Human Services Commission running as a candidate or being elected to the Hollywood Town Council. In your letter, you have provided a job description of the Executive Director position. It is my understanding from an attachment to your letter that the Charleston County Human Services Commission is exclusively federally funded through the Office of Community Services in Washington, D.C. Furthermore, you have provided a copy of an information memorandum regarding the Community Services Block Grant Program. That memorandum comments in part on political activity regarding programs assisted with these federal funds. It is my understanding that neither the Town Council nor the Charleston County Human Services Commission nor any of the members or employees of either body have any duties, obligations or responsibilities regarding the other body. In responding to your question it will be necessary to consider any possible dual office holding issues that may arise from the candidacy and or election of this individual to the Hollywood Town Council. Article XVII, Section IA 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, and 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). Furthermore, "(o)ne who merely performs the duties required of him under an express contract or otherwise, though such persons themselves

..1

REMBERJi C.j)ENNIS BUfill!NG • POST OFFICE Box 11549 •
J/111 •.• /
/V

rv,

COLUMBIA,

s.c. 29211-1549 • TELEPHONE: 803-734-3970 • FACSIMILE: 803-253-6283

Ms. Fudge
Page2
May 3, 2005

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.

I
I

I

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. Atty. Gen., April 12, 1998; June 12, 1995; February 4, 1994; July 23, 1993; July 24, 1991. Therefore, the question is whether the position of Executive Director for the Charleston County Human Services is an Office for dual office holding purposes. Along with your letter, you attached a description of the duties and responsibilities of the Executive Director This Office has determined that the position of executive director for a commission or governing board generally does not constitute an office. See: Ops. Atty. Gen. dated June 7, 2004; January 27, 2004; July 24, 2001; November 24, 1997; May 15, 1989; June 11, 1985; March 19, 1975. It was referenced in the July 24, 2001 opinion that the executive director in that instance served at the pleasure of the governing board or authority. In short, in virtually every previous instance in which the question has arisen, we have concluded that an executive director of a governing board or commission would be characterized as an employee rather than an officer. Based upon the forgoing authorities and my review of the duties and responsibilities of the position, it is my opinion that the position of Executive Director for Charleston County Human Services is not an office for dual office holding purposes. Accordingly, we advise it would not be a violation of the dual office holding prohibition for the Executive Director of Charleston County Human Services to concurrently serve as a councilman on the Hollywood Town Council. I am unaware of any other State statutory or constitutional provisions which would be applicable to the situation. Again, it is my understanding that neither the Town Council nor the Charleston County Human Services Commission nor any of the members or employees of either body have any duties, obligations or responsibilities regarding the other body. Notwithstanding the fact that there are no constitutional problems raised by the Executive Director's situation, an area of possible concern is the applicability of the Hatch Act. The Hatch Act is a federal statute that prohibits certain partisan political activities of public employees whose positions are somehow tied to federal funds. Because of the nature of the funding for the Charleston County Human Services Commission, we would advise that you contact the Office of the Special Counsel of the United States Merit Systems Protection Board, which gives advice on applicability of the Hatch Act, to obtain a more conclusive answer as to the relevancy of the Hatch Act to your situation. That agency may be contacted by calling toll-free 1-800-85-HATCH (42824).

Ms. Fudge
Page 3
May 3, 2005

With kind regards, I am,
Very truly yours,

illdclr/;ZJrJL__

I

t

Charles H. Richardson
Senior Assistant Attorney General

REVIEWED AND APPROVED BY:

~fP'~

Robert D. Cook
Assistant Deputy Attorney General

I
f'?/;1.