Could someone serve on both Cherokee County Council and the Macedonia Fire District Board?

Plain-English summary

A senator asked whether one person could serve on Cherokee County Council and the Macedonia Fire District Board. The 2016 AG concluded that the simultaneous service would violate South Carolina's constitutional prohibition on holding two offices of honor or profit. It relied on its earlier treatment of county council members as officers and found the Macedonia board members also held office.

The board was established by legislation. Its members were appointed through the Governor and county legislative delegation, served six-year terms, and had substantive authority over firefighting equipment, volunteers, and rules. Those features led the AG to treat its seat as an office, not merely an advisory appointment.

Currency note

This opinion was issued in 2016. 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: Was a county council member already a public officer for this rule?
A: Yes. The AG reaffirmed its prior opinions treating county council membership as an office.

Q: Why was the fire district board seat also an office?
A: The AG pointed to its statutory creation, appointment and term rules, and authority over fire district operations.

Q: Did the AG find an exception allowing both positions?
A: No. It concluded that the two positions together violated the constitutional dual-office prohibition.

Background and statutory framework

The opinion applied Article XVII, Section 1A of the South Carolina Constitution and the state's test for whether a role exercises sovereign power. It compared Macedonia's board with other fire district boards that the AG had previously treated as offices. The opinion answered only for the two positions described.

Citations and references

• The AG concluded that the two positions “would violate the dual office holding prohibition of the South Carolina Constitution.”
• It described the board's authority to select volunteer firefighters and make rules concerning equipment use.
• Source: South Carolina Attorney General, May 6, 2016.

Official title

Regarding whether service as a council member for the Cherokee County Council and as a member of the Macedonia Fire District Board would violate our State’s constitutional prohibition of dual office holding.

Requester

The Honorable Harvey S. Peeler, Jr., Senator, District No. 14.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/may-6-2016-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2016/05/Peeler-H.-OS-10040-FINAL-Opinion-5-6-2016-00989062xD2C78.pdf

Original opinion text

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Alan Wilson
ATTORN'EY General

May 6, 2016

The I lonorable Harvey S. Peeler. Jr.
Senator. District No. 14
Post Office Box 142

Columbia. South Carolina 29202
Dear Senator Peeler:
You have requested the opinion of this Office as to whether sendee as a council member for the Cherokee County Council and as a member of the Macedonia Fire District Board would violate our State's constitutional prohibition of dual office holding. Based on the analysis below, we believe that it would. Law/Analysis Article XVII. Section 1A of the South Carolina Constitution states that "[njo person mayhold two offices of honor or profit at the same time . .

with the exception that individuals

serving as officers in the militia, a member of a lawfully and regulated organized fire department, constable, or notary public may hold an additional office.

A person not falling into

this exception would violate the dual office holding prohibition by concurrently serving in two

offices "involving an exercise of some part of the sovereign power [of the State], either small or great, in the performance of which the public is concerned.

174. 58 S.E. 762. 763 (1907).

" Sanders v. Belue. 78 S.C. 171.

It has been said that the public policy behind the dual office

holding prohibition is '"to prevent public officials from acting in circumstances in which their personal interests conflicts with the public whose interest they have been elected to represent." 63C Am. Jur. 2d Public Officers and Employees § 63 (2014) (citing Dvkeman v. Svmond. 54 A.D.2d 1 59, 388 N. Y. S.2d 422 (NY 4th Dep't 1 976)).

In considering whether a particular position is an office in the constitutional sense. South Carolina courts look to whether "ft]he power of appointment comes from the state, the authorityis 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).

More specifically, our Supreme

Court has clarified that the criteria to be considered includes "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." State v. Crenshaw. 274 S.C. 475. 478. 266 S.E. 2d 61, 62 (1980).

However, it has also been determined that "no single criteria is

conclusive" and it is not "necessary that all the characteristics of an officer or officers be present." kk (citing 67 C..I.S. Officers § 8(a) (1978)).

RembertC. Dennis Building

•

Post Office Box 11549

. Colombia, SC 2921 1-1549

. Telephone 803-734-3970

•

Facsimile 803-253-6283

The Honorable Harvey S. Peeler. Jr.

Page 2
May 6. 2016

On several occasions, this Office has concluded that a member of county council holds an

office for dual office holding purposes. See. eu^.. Op. S.C. Att'v Gen.. 2004 WL 736935 (March

18. 2004): Op. S.C. Att'v Gen.. 2003 WL 21040129 (Feb. 26. 2003): Op. S.C. Atfv Gen.. 1999

WL 626654 (July 26, 1999); Op. S.C. Atfv Gen.. 1997 WL 419947 (June 27. 1997); Op. S.C. Atfv Gen.. 1994 WL 738181 (Dec. 7. 1994); Op. S.C. Atfv Gen.. 1985 WL 259212 (Aug. 20. 1985).

Accordingly, we turn to whether a member of the Macedonia Fire District Board ('"the

Board") would also be an office holder for purposes of dual office holding. The Board was created by Act 1043 of 1970. Act No. 1043. 1970 S.C. Acts 2349.

Its

members are appointed by the Governor upon recommendation of a majority of the county

legislation delegation and serve for six year terms. ]cf at 2351. Furthermore, the powers given to the board include the purchasing and responsibility over the upkeep, maintenance, and repairs of fire-fighting

equipment;

selecting

volunteer

firemen;

promulgating rules

and

regulations

concerning equipment use; and borrowing up to twenty thousand dollars in taxes. Id; Act No.

318. 1971 S.C. Acts 427-28.
     In prior opinions of this Office, we have concluded that members of such boards hold an

office within the meaning of the dual office holding prohibition. See Op. S.C. Att'v Gen.. 2003 WL 23138212 (Dec. 19, 2003) (finding Commissioner of the Holly Springs Volunteer Fire District are office holders); Op. S.C. Att'v Gen.. 1994 WL 50438 (Jan. 19, 1994) (concluding Commissioner of the Whitney Area Fire District are office holders); Op. S.C. Att'v Gen.. 1986 WL 289838 (Sept. 18, 1986) (staling that members of the Chester County Board of Fire Control

are office holders); Op. S.C. Att'v Gen.. 1983 WL 182060 (Nov. 18. 1983) (concluding that members of the Board of Trustees for the Monarch Fire Department are office holders); Op. S.C. Att'v Gen.. 1963 WL 12128 (Nov. 30. 1963) (finding members of the Board of Fire Control of

the Converse Area Fire District are office holders). As such, it is our opinion that service as a member of the Macedonia Fire District Board would likewise constitute an office for purposes of

dual office holding analysis.
Conclusion

Based on the above analysis, it is our opinion that service as a council member for the Cherokee County Council and as a member of the Macedonia Fire District Board would violate the dual office holding prohibition of the South Carolina Constitution. Very truly yours.

Anne Marie Crosswell

Assistant Attorney General

REVIEWED AND APPROVED BY:

/

Robert D. Cook
Solicitor General

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