Could a South Carolina county delinquent tax collector also serve on a school board?

Plain-English summary

In 2003, South Carolina's Attorney General said Barnwell County's delinquent tax collector could not simultaneously serve on the local district school board without violating the constitutional dual-office restriction. The office considered both roles public offices. It emphasized the collector's statutory duties and the powers described in the request, including pursuing fraudulent tax evasion, seizing liened property, and arranging auctions.

The opinion said the law automatically vacated the first office when a person assumed a second covered office. It added that the person could continue to act in the former office as a de facto officer until a successor was selected, with public-facing acts generally effective unless a court ruled otherwise.

Currency note

This opinion was issued in 2003. 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.

Historical summary

Tax collectors and school-board members

The AG relied on prior opinions treating a school trustee as an officer and found the delinquent tax collector likewise exercised state sovereign power. The two positions therefore could not be held together under the dual-office clause.

County officials and the public

The opinion described an automatic vacancy in the first office upon assumption of the second. It separately explained the de facto officer status of someone continuing to perform the former job pending selection of a successor.

Common questions

Could the collector run for a school-board seat?
The opinion addressed assuming and holding the second office, not candidacy alone. It said serving in both offices simultaneously would violate the constitutional prohibition.

What made the tax collector an officer?
The AG pointed to duties set by state law and the described enforcement powers over tax evasion, liens, seizures, and property sales.

Which office would become vacant if the collector joined the board?
The opinion said the first office, the delinquent tax collector position, would be vacated by operation of law.

Background and statutory framework

The county treasurer asked about a collector who had filed for a special school-board election. The AG applied Article XVII, Section IA's prohibition on simultaneous holding of two offices and prior opinions classifying school trustees and tax collectors as officers. It then described the automatic-vacancy and de facto officer rules.

Citations and references

The opinion discussed Article XVII, Section IA of the state constitution and earlier AG opinions on the two offices.

Official title

Concerning dual office holding. Specifically, whether simultaneously holding the positions of Delinquent Tax Collector for Barnwell County and board member of the Barnwell County District 45 School Board would constitute dual office holding.

Requester

Wendall P. Gibson, Jr., Barnwell County Treasurer

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/october-3-2003/
• Original PDF: https://www.scag.gov/wp-content/uploads/2003/10/00271298.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
HENRY McMAsrER
ATIDRNEY GENERAL

October 3, 2003

Mr. Wendall P. Gibson, Jr.
Barnwell County Treasurer
57 Wall Street, Room 123
Barnwell, South Carolina 29812
Dear Mr. Gibson:
You have requested an advisory opinion from this Office concerning dual office holding. You have indicated that Mr. Michael Raley currently serves as the Delinquent Tax Collector for Barnwell County. You further indicate that Mr. Raley has filed to run in a special election for a position on the Barnwell County District 45 School Board. Accordingly, you ask whether simultaneously holding the positions of Delinquent Tax Collector for Barnwell County and board member of the Barnwell County District 45 School Board would constitute dual office holding.

I

Law/Analysis

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 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 advised on numerous occasions that a member of a county school board of trustees holds an office for dual office holding purposes. See, as representative of those numerous opinions, Ops. S.C. Atty, Gen. dated April 18, 2003; September 20, 1999; September 7, 1993; November 1, 1991; May 4, 1982. Therefore, the question turns to whether the position of Delinquent Tax Collector for Barnwell County would likewise be considered an office. This Office has also consistently opined that a county tax collector holds an office for dual office holding. See, as representative of those numerous opinions, Ops. S.C. Atty. Gen. dated July 13, 1988 (copy enclosed); March 10, 1980 (copy enclosed); April 30, 1979. This opinion remains unchanged today for several reasons. First, we advised in an April 9, 1997 opinion (copy I)

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Mr. Gibson
Page2
October 3, 2003

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enclosed) that code enforcement officers who work under the authority of a county tax collector clearly exercise a portion of the state's sovereign power, and thus must be considered office holders for dual office holding purposes. It would be a strange result indeed for a group of office holders to act under the authority and direction of an individual who is deemed not to be an office holders. Second, the duties of a county delinquent tax collector are delineated in Title 12 of the Code of Laws of South Carolina, 1976. This Office has held on numerous occasions that an position that is statutorily proscribed by the General Assembly is an office for dual office holding purposes. See, as representative of those numerous opinions, Ops. S.C. Atty. Gen. dated April 21, 1998; January 7, 1991; July 13, 1981; March 6, 1980; August 28, 1974. Lastly, the duties of the Barnwell County Delinquent Tax Collector, as defined by information that you have provided along with your request, include both prosecutorial and law enforcement related powers. The Barnwell County Delinquent Tax Collector has the authority to pursue the prosecution of persons involved in fraudulent tax evasion, to seize property that is subject to county tax liens, and arrange for the sale of such properties at a public auction. We believe that such duties clearly involve an exercise of a portion of the State's sovereign power. Based on the forgoing authorities, it is the opinion of this Office that as the Delinquent Tax Collector for Barnwell County, Mr. Raley holds an office for dual office holding purposes. Accordingly, we advise that if Mr. Raley were to assume a position on the Barnwell County District 45 School Board while simultaneously serving in his current capacity, he would be in violation of the constitutional prohibition on dual office holding.

I

When a dual office holding situation occurs, the law operates automatically to "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 1A 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 held. Thus, the law operates automatically to create a vacancy in that first office. However, the individual may continue to perform the duties of the previously held office as a de facto officer, rather than de jure, until a successor is duly selected to complete his term of office (or to assume his duties ifthe term of service is indefinite). See Walker v. Harris, 170 S.C. 242 (1933); Doverv. Kirkland, 92 S.C. 313 (1912); Statev. Coleman, 54 S.C. 282 (1898); Statev. Buttz, 9 S.C. 156 (1877). Furthermore, actions taken by a de facto officer in relation to the public or third parties will be as valid and effectual as those of a de jure officer unless or until a court should declare such acts void or remove the individual from office. See, for examples, State ex rel. McLeod v. Court of Probate of Colleton County, 266 S.C. 279, 223 S.E.2d 166 (1976); State ex rel. McLeod v. West, 249 S.C. 243, 153 S.E.2d 892 (1967); Kittman v. Ayer, 3 Stob. 92 (S.C. 1848).

Robert D. Cook
Assistant Deputy Attorney General
Enclosures