Could a South Carolina corrections employee run for and serve on a county council while keeping his state job?

Plain-English summary

A legislator asked whether a Department of Corrections administrative coordinator who managed a commissary warehouse could run for Richland County Council and keep his state job. The Attorney General concluded in 2005 that county council service counted as an office, but the described employee position did not. On those facts, holding both would not violate the South Carolina Constitution's ban on dual office holding.

That did not settle every employment issue. The AG reviewed the department's employee political-activity policy and concluded it was valid as applied to the employee's candidacy. An agency memorandum described options involving resignation or leave upon filing for office, and the opinion quoted a policy provision allowing the agency director to require resignation or terminate employment if the employee's duties could not be handled effectively. The AG also noted that ethics rules governed public employees and officers but directed interpretation questions to the State Ethics Commission.

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 treat this corrections job as a second public office?
No. Based on the warehouse coordinator duties described to him, the position did not count as an office for the constitutional dual-office rule.

Was county council membership a public office under that rule?
Yes. The AG cited prior opinions treating county council members as officers.

Did clearing the dual-office rule mean the employee could ignore agency election policy?
No. The opinion found the department's political-activity policy applicable to the candidacy and valid under the reasoning it reviewed.

Did the AG interpret every State Ethics Act issue for the candidate?
No. He identified the State Ethics Commission as the agency responsible for interpreting those provisions.

Background and statutory framework

The opinion applied the state constitution's dual-office rule, which required two positions exercising state sovereign power. It then examined agency political-activity limits separately from constitutional office holding and pointed to the State Ethics Act for conduct rules.

Citations and references

• §§ 8-13-100 et seq.: State Ethics Act provisions mentioned by the AG.

Official title

Questioning if seeking and holding the Richland County Council office while remaining an employee of the Department of Corrections violates dual office holding provisions.

Requester

The Honorable Nathan Ballentine, Member, House of Representatives

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/november-2-2005/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/05nov2ballentine.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
H EN llY MCMASTER
ATTO RNEY GE'.':ERAl

November 2, 2005

The Honorable Nathan Ballentine
Member, House of Representatives
1108 Belfair Way
Inno, South Carolina 29063

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Dear Representative Ballentine:
In a letter to this office you indicated that Mr. Paul W. Hughey is employed by the State Department of Corrections and wishes to run for Richland County Council. It is my understanding that Mr. Hughey is employed as an Administrative Coordinator I. In such capacity he manages the Department of Corrections commissary warehouse. You indicated that you are questioning Mr. Hughey's ability to seek and hold the Richland County Council office while remaining an employee of the Department of Corrections.

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ln examining questions of this nature with regard to serving in a position if an individual is elected, one consideration is whether there is any conflict with Article XVII, Section I A ofthe South Carolina Constitution which provides that "no person may bold 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 offices which have duties involving an exercise ofsome 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 advised on numerous occasions that a member of a county council would be considered an officer for dual office holding purposes. See, as representative of those numerous opinions, Ops. S.C. Atty. Gen. dated March 18, 2004; July 26, 1999; July 27, 1997; December 7, 1994; and August 20, 1985. However, based upon my understanding of Mr. Hughey's position with the Department of Corrections, such position does not constitute an office and. therefore, it does not appear that there would be any conflict with the dual office holding provision of the State Constitution if he would be elected as a member of the county council.

It is my information, according to the attachments Mr. Hughey forwarded to this office that apparently the Department of Corrections has no specific opposition to Mr. Hughey running for offi ce. However, reference was made to certain provisions of that agency's policy on employee
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The Honorable Nathan Ballentine
Page2
November 2, 2005

political activity. As to Mr. Hughey's running for office, according to a memorandum dated August 3, 2004, it was stated as follows:

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Please note that while Mr. Hughey is not covered under the Hatch Act, several provisions of the agency's policy on Employee Political Activity (ADM-11.07) apply. Specifically, section 3.3 states that employees not disqualified under the Hatch Act may resign their position, request annual leave, or take leave without pay upon their filing for office. Once Mr. Hughey files for office, he must elect how his absence should be covered. Should he win election, I agree that there should be no conflict of interest upon his return to work. I would note that section 3.3 also contains a provision that "[i]f in the judgment of the Agency Director, the employee's duties cannot be effectively handled, the employee may be required to resign or be terminated." A prior opinion of this office dated March 18, 1998 dealt with a municipal ordinance that declared that " ... no employee who offers for any elective public office shall remain an employee of the City.... " The opinion stated that

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There is overwhelming support for the proposition that the government has an appropriate and substantial interest in proscribing certain political activities by public employees. Naccarati v. Wilkins TP .. PA, 846 F.Supp 405 (W.D.Pa 1993). The leading case on this subject is Broadrick v. Oklahoma, 413 U.S. 601 (1973). In this case, the United States Supreme Court upheld the constitutional validity of a Oklahoma statute which restricted partisan political conduct by state civil service employees. The Court held that a state could prohibit certain public employees from becoming "candidate[s] for nomination or election to any paid public office." Id. Many other courts have also upheld the validity of statutes and ordinances similar to ... (the municipal ordinance) ... .ln doing so, these courts recognized the important governmental interest in promoting efficiency and integrity in the discharge of official duties and in insulating public employees from political pressures so as to protect their individual rights. Magill v. Lynch, 560 F.2d 22 (1st Cir. 1977); Moses v. Town of Wytheville. Virginia et al., 959 F.Supp 334 (W.D.Va 1997); Naccarati v. Wilkins TP., PA, supra; Pennsylvania ex rel. Specter v. Moak, 307 A.2d 884 (1973). It was also indicated that other prior opinions of this Office had addressed the validity of ordinances and policies similar to the referenced ordinance. In these opinions, this office concluded that such ordinances and policies which restricted employees from offering for election were valid based on the previously cited cases. See Ops. Atty. Gen. dated August 24, 1982 and September 27, 1979. The 1998 opinion concluded that if the referenced municipal ordinance was " ... being offered to promote

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The Honorable Nathan Ballentine
Page 3
November 2, 2005

important governmental interests similar to the one discussed in the previously cited cases, it would most likely withstand a challenge to its constitutionality." Another opinion of this office dated March 21, 1980 stated that

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There is no statewide personnel rule, regulation or policy that prohibits employees of the State from offering for elective office. However, the agencies and departments of the State may promulgate, within certain constitutional parameters, their own rules, regulations and policies regulating the political activities of their employees. Consistent with these prior opinions and the cases referenced above, it is my opinion that the policies of the Department of Corrections which have been determined to be applicable to Mr. Hughey's candidacy for county council are valid. Generally, an employer has the right to adopt reasonable policies vis-a-vis its employees. As long as a policy is generally fair and treats all employees in a similar position equally and without discriminatory affect, it will be upheld. I would only further add that the State Ethics Act, S.C. Code Ann. §§ 8-13-100 et seq., prescribes rules of conduct for public employees and public officers. If Mr. Hughey has any questions in such regard, he should contact the State Ethics Commission as that agency is given the responsibility of interpreting its provisions. With kind regards, I am, Sincerely,

cC,eut,f!~
Charles H. Richardson
Senior Assistant Attorney General
REVIEWED AND APPROVED BY:

Robert D. Cook
Assistant Deputy Attorney General
cc:

Mr. Paul W. Hughey, Jr.