Could a Colleton County school board member also serve as county administrator in 1998?

Plain-English summary

Colleton County counsel asked whether one person could serve on the county school board and as county administrator. The Attorney General said no. Relying on earlier AG opinions, it classified both positions as public offices under South Carolina's constitutional prohibition on holding two offices at once.

The letter also described the legal effect of taking a second covered office: the first office was deemed vacated by law. The person could continue acting in the first position as a de facto officer until a successor was selected, but that was not the full legal status of an officeholder. The answer addressed these specific county positions under the facts given.

Currency note

This opinion was issued in 1998. 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 AG count a school board seat as a public office?
A: Yes. It applied earlier AG opinions on district boards to Colleton County's school board.

Q: Was county administrator also an office?
A: The letter applied earlier opinions on counties using the council-administrator form and said it was.

Q: Which position did the letter say was vacated on taking the second?
A: It said the first office was deemed vacated, though the person might temporarily act there as a de facto officer.

Background and statutory framework

The opinion applied Article XVII, Section IA of the state constitution to both posts, then discussed the consequence of simultaneously holding two covered offices.

Citations and references

• Article XVII, Section IA of the State Constitution, the dual office holding provision quoted in the letter.

Official title

Concerning whether a dual office holding situation exists if a member of the Colleton County School Board simultaneously serves as the Colleton County Administrator.

Requester

Paul N. Siegel, Esquire

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/may-7-1998-2/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/11/98may7siegel.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLES MOLONY CONDON
ATIORNEY GENERAL

May 7, 1998

Paul N. Siegel, Esquire
Colleton County Attorney
P. 0. Box 1143
Walterboro, South Carolina 29488-0012
Dear Mr. Siegel:
Attorney General Condon has forwarded your opinion request to me for reply. You have asked whether a member of the Colleton County School Board may simultaneously serve as the Colleton County Administrator without violating the dual office holding prohibitions of the state Constitution. Article XVII, Section IA of the State 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, member of a lawfully and regularly organized fire department, constable, or notary public. For this provision to be contravened, a person concurrently must hold two public 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). This Office has never specifically opined as to whether membership on the Colleton County School Board of Trustees constitutes an office for dual office holding purposes. However, we have on numerous occasions concluded that membership on a school district board of trustees would constitute an office for dual office holding purposes. See, as examples of these numerous opinions, Ops. Ally. Gen. dated October 5, 1993, November I, 1991 and August 8, 1990. Based on these prior opinions, it is my opinion that membership on the Colleton County School Board of Trustees would constitute an office for dual office holding purposes. I have been infom1ed that Colleton County operates under the council-administrator form of government. This Office has previously opined that one who serves as a county 1{1 .' 11lrnr

c. DENNIS BUILDING

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POST Offl CE Box 11549

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CoLUMlll ;\, S.C. 29211 - 1549

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TELEPHONE :

803- 734-3970

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FACSIMILE: 803-253 -6283

Mr. Siegel
Page 2
May 7, 1998
administrator for a county in which the county-administrator form of government has been properly adopted, would hold an office for dual office holding purposes. Ops. Atty. Gen. dated August 8, 1990 and May 30, 1979. In accordance with these prior opinions, it is my opinion that the Colleton County Administrator would hold an office for dual office holding purposes. To summarize the foregoing, if a member of the Colleton County School Board of Trustees were to serve simultaneously as the Colleton County Administrator, such service would violate the dual office holding prohibitions of the State Constitution.

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When a dual office holding situation occurs, the law operates to automatically "cure" the problem. If an individual holds one office on the date he assumes a second office, assuming both offices fall within the purview of Article XVII, Section IA of the Constitution (or one of the other applicable constitutional prohibitions against dual office holding), he is deemed by law to have vacated the first office. However, the individual may continue to perform the duties of the previously held office as a de facto officer until a successor is duly selected to assume the duties or complete the term of office. While the actions taken by a de facto officer are generally held to be valid with regard to third parties, there is no question that such officer is acting under color of law rather than with full de jure status which he would possess if there had been no dual office holding. Furthermore, there exists general authority that the protections afforded a de facto officer will not be deemed to continue indefinitely, particularly when the public is chargeable with notice that the officer's status has been reduced to one of de facto rather then de jure. 63A Am.Jur.2d Public Officers and Employees. With kindest regards, I remain Very truly yours,

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Paul M. Koch
Assistant Attorney General
REVIEWED AND APPROVED BY:

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C. Willian1s, III
Attorney General

cc: The Honorable McKinley Washington