Could a Dillon County councilmember also be the county's E-911 director?

Plain-English summary

Dillon County asked whether a county councilmember could also be its E-911 director. The AG separated two issues. It viewed the director as a county employee without sovereign powers or a fixed term, so holding that job alongside a council seat likely did not violate the constitutional ban on two public offices.

The opinion reached a different result under the common-law master-servant rule. The administrator supervised and could fire the director, while the administrator reported to council; council also set the E-911 budget, including the director's salary. The AG said a councilmember in both roles would likely face a prohibited conflict and believed a court would find simultaneous service impermissible.

Currency note

This opinion was issued in 2007. 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 the E-911 director considered a second public office? A: The AG treated the position described as county employment, not an office, because it lacked the attributes of sovereign authority and a fixed term.

Q: Why was simultaneous service still a problem?
A: The council had ultimate authority over the director's position and controlled its salary, creating a likely master-servant conflict when a councilmember held the job.

Q: Did the AG approve one person holding both jobs?
A: No. Despite finding no likely constitutional dual-office violation, it advised against the arrangement and believed a court would prohibit it under common law.

Background and statutory framework

The opinion distinguished the constitutional two-office rule from the separate common-law conflict rule. Its analysis depended on the E-911 director's actual employment terms and council's budgetary control as described by Dillon County.

Citations and references

The opinion discussed Article XVII, section 1A and cited McMahan v. Jones and Sanders v. Belue.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/october-22-2007/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/young-w-c-10-22-07-os-8474-councilmembers-service-as-E-911-director.pdf

Original opinion text

October 22, 2007

W. Clay Young, County Administrator
Dillon County
Post Office Box 449
Dillon, South Carolina 29536
Dear Mr. Young:
We understand from your letter that you wish to obtain an opinion of this Office concerning a member of the Dillon County Council’s ability to serve as the E-911 Director for Dillon County. You state that you received an opinion from your county attorney on this issue, which you enclosed, but also seek the advice of this Office. Law/Analysis First, we agree with your county attorney’s assessment that the councilmember’s service as E-911 Director would not violate the dual office holding prohibition contained in the South Carolina Constitution. Article XVII, section 1A of the South Carolina Constitution (Supp. 2006) prohibits a person from holding “two offices of honor or profit at the same time, but any person holding another office may at the same time be an officer in the militia, member of a lawfully and regularly organized fire department, constable, or a notary public.” In order to contravene this provision, a person concurrently must hold two offices having duties that involve the exercise of some portion of the sovereign power of the State. Sanders v. Belue, 78 S.C. 171, 174, S.E. 762, 763 (1907). Furthermore, our courts recognize other relevant considerations in determining whether an individual holds an office, such as, whether a statute, or other such authority, establishes the position, proscribes the position’s duties or salary, or requires qualifications or an oath for the position. State v. Crenshaw, 274 S.C. 475, 477, 266 S.E.2d 61, 62 (1980). While on numerous occasions this Office opined that a position on a county council is an office for purposes of dual office holding, we do not believe service as the E-911 Director (the “Director”) for Dillon County also is an office. Ops. S.C. Atty. Gen., January 18, 2006; November 2, 2005; March 18, 2004; July 26, 1999. According to your letter, the Director is hired by the County Administrator, reports to the County Administrator, and serves at the County Administrator’s pleasure holding no term of office. We also understand that the Director does not take an oath of office, is paid a salary, and is considered a county employee. Moreover, we have no reason to believe the Director exercises any sovereign power of the State. Thus, we conclude that

Mr. Young
Page 2
October 22, 2007
the Director is an employee of Dillon County rather than an officer. Accordingly, service of a member of the Dillon County Council as Director likely does not violate article XVII, section 1A of the South Carolina Constitution. Although we do not believe a councilmember’s service as director constitutes dual office holding, we believe his or her simultaneous service in both roles creates a common law masterservant conflict of interest. Our Supreme Court in McMahan v. Jones, 94 S.C. 362, 77 S.E. 1022 (1913) explained the rationale for the prohibition against master-servant conflicts of interest. “No man in the public service should be permitted to occupy the dual position of master and servant; for, as master, he would be under the temptation of exacting too little of himself, as servant; and, as servant, he would be inclined to demand too much of himself, as master. There would be constant conflict between self-interest and integrity.” Id. at 365, 77 S.E. at 1023. In prior opinions, we described when such a conflict exists. “[A] conflict of interest exists where one office is subordinate to the other, and subject in some degree to the supervisory power of its incumbent, or where the incumbent of one of the offices has the power of appointment as to the other office, or has the power to remove the incumbent of the other or to punish the other. Furthermore, a conflict of interest may be demonstrated by the power to regulate the compensation of the other, or to audit his accounts.” Op. S.C. Atty. Gen., May 21, 2004 (quoting Op. S.C. Atty. Gen., January 19, 1994). Based on your letter and our conversations with you, we understand that the County Administrator hires and may fire the Director. Furthermore, the Director reports to the County Administrator and serves at his discretion. However, the County Administrator reports directly to County Council. Thus, although the Director does not directly serve and report to County Council, we believe County Council nonetheless has ultimate authority over the Director’s position. Moreover, you informed us that County Council sets the budget for the E-911 department, which includes the Director’s salary. Thus, County Council is in a position to regulate the compensation of the Director. Accordingly, we believe if a member of County Council serves as Director, a master-servant conflict of interest will likely arise and therefore, we advise against one person’s service in both positions. Conclusion We agree with the conclusion of your county attorney that a councilmember’s service as E911 Director does not violate the dual office holding provision contained in the South Carolina Constitution. However, in reviewing the nature of the Director’s position, a councilmember’s service as Director likely creates a master-servant conflict of interest in violation of common law principles. Thus, we believe a court would find the simultaneous service of one individual in both positions is prohibited.

Mr. Young
Page 3
October 22, 2007
Very truly yours,
Henry McMaster
Attorney General

By:

REVIEWED AND APPROVED BY:

______
Robert D. Cook
Assistant Deputy Attorney General

Cydney M. Milling
Assistant Attorney General