Could a South Carolina deputy fire chief also serve on a city council without violating dual office holding rules?

Plain-English summary

In 2018, a legislator asked whether a part-time deputy fire chief in a special purpose district could run for and serve on a city council. The Attorney General concluded that this combination did not violate the state constitution's dual office holding prohibition. It treated a city council seat as a public office, while the constitutional exception for members of a lawfully organized fire department covered fire chiefs, assistant chiefs, and firefighters in the capacity discussed.

That resolved the dual office holding question, including whether the deputy chief would have to resign on winning the council seat. The office expressly left any separate conflict of interest issue to the State Ethics Commission, which had authority to interpret the Ethics Act.

Currency note

This opinion was issued in 2018. 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 say the deputy fire chief had to resign if elected to council?
A: No. The opinion found no dual office holding violation from serving in both described roles.

Q: Was a city council seat considered an office?
A: Yes. The office distinguished that public office from service within a lawfully organized fire department.

Q: Did the opinion decide whether the two roles created an ethics conflict?
A: No. It referred that distinct issue to the State Ethics Commission.

Background and statutory framework

The requester described a deputy chief in a fire protection special purpose district and a council seat in a city served by that district. The opinion applied South Carolina's constitutional dual office holding provision and its exception for members of a lawfully organized fire department, then separated the unresolved ethics question.

Citations and references

• S.C. Const., art. XVII, § 1A: dual office holding rule and fire department exception discussed in the opinion.
• S.C. Code Ann. § 8-13-320(11): Ethics Commission authority cited in the opinion.

Official title

On dual office holding (Deputy Fire Chief and run for city council seat).

Requester

The Honorable Josiah Magnuson, Member, South Carolina House of Representatives.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/october-4-2018/
• Original PDF: https://www.scag.gov/wp-content/uploads/2018/10/Magnuson-J.-OS-10298-FINAL-Opinion-10-4-2018-01797786xD2C78-01799704xD2C78.pdf

Original opinion text

Alan Wilson
Attorney General

October 4, 2018

The Honorable Josiah Magnuson, Member
South Carolina House of Representatives
304D Blatt Building
Columbia, SC 29201

Dear Representative Magnuson:

You have requested an opinion from this Office regarding dual office holding. In your opinion request, you state:

A special purpose district' established by an act of the General Assembly is located within House District 38, and a question arose that necessitated my request today of an opinion from your office. Here is a summary of the situation:

-The special purpose district provides fire protection,
suppression, and medical first response service to
unincorporated areas of two counties and a municipality
of one ofthose counties.

-A city council position has opened within the city
served by the special purpose district.

'Our Office has described a "special purpose district" as follows: Special purpose districts perform a governmental function. Ops. Attv. Gen.. March 11, 1982. They, like counties, municipalities and school districts, are considered political subdivisions of the state. Ops. Attv. Gen.. March 18, 1996. In an opinion, dated February 15, 1995, we noted that "[w]hile South Carolina case law does not contain a complete and concise definition of the term 'political subdivision,' characteristics 'which are generally regarded as distinctive of a political subdivision are that it exists for the discharging of some

function of local government, that it has a prescribed area and that it possesses authority for subordinate self-government by officers selected by it.'" Quoting, McClanahan v. Cochise College. 540 P.2d 744(1975). Op. S.C. Attv. Gen.. 2003 WL 21043485, at *1 (Mar. 12, 2003).

riEMBERTC. Dennis Building « post Office Box 11549 • Columbia,SC 29211-1549 . Telephone 803-734-3970 . Facsimile 803-253-6283

The Honorable Josiah Magnuson
Page 2

October 4, 2018

-The deputy fire chief has expressed interest in running
for the city council seat.
-The deputy fire chief in the special purpose district is a
part-time job.
-The city council of the municipality has no governing
authority

over

the

fire

department,

and

the

fire

department receives nothing from the municipality.
We will provide each of your questions with our answers to them below. LAW/ANALYSIS:

1.

If the deputy fire chief ran for and won the citv council seat, would his service in both positions

violate the state's prohibition on dual office holding?
Dual office holding is provided for in the South Carolina Constitution, which states:

[n]o person may hold two offices of honor or profit at the same time, but anv 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 ... The limitation above set forth does not prohibit any officeholder from being a delegate to a constitutional convention.

S.C. Const, art. XVII § 1 A (emphasis added).

The South Carolina Supreme Court explains that an "office" for dual office holding purposes is: "One who is charged by law with duties involving an exercise of some part of the sovereign power, either small or great, in the performance of which the public is concerned, and which are continuing, and not

occasional or intermittent, is a public officer." Sanders v. Belue. 78 S.C. 171, 174, 58 S.E. 762, 763 (1907), "In considering whether a particular position is an office in the constitutional sense, it must be demonstrated

that "[t]he power of appointment comes from the state, the authority is 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). "The powers conferred and the duties to be discharged with

regard to a public office must be defined, directly or impliedly, by the legislature or through legislative authority ..." 63C Am Jur.2d Public Officers and Employees § 5 (2009).

Segars-Andrews v. Judicial Merit Selection Commission. 387 S.C. 109, 691 S.E.2d 453 (2010).

The Honorable Josiah Magnuson
Page 3

October 4, 20 1 8

Other relevant considerations for an office are:
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. Op. S.C. Attv. Gen.. 2013 WL 3243063 (June 17, 2013) (quoting State v. Crenshaw. 274 S.C. 475, 478, 266 S.E.2d 61, 62 (1980)).

Our Office has concluded that a city council member holds an office for dual office holding purposes.2 As a result of the State Constitution providing that a "member of a lawfully and regularly organized fire

department" is excluded from holding an office,3 we have determined that "members of a fire department, in their capacity as fire chief, assistant fire chief, or firefighters" are exempted "from the dual office holding prohibition" and that even "service as a volunteer firefighter does not constitute an office."

Op.

S.C. Attv. Gen.. 2012 WL 3142775 (July 19, 2012); Op. S.C. Attv. Gen.. 2012 WL 1036294 (March 20, 2012).

Accordingly, we believe that service as both a city council member and as a deputy fire chief

would not be a violation of the Constitutional prohibition against dual office holding. 2.

If so. upon the election results being certified, would he then have to determine which position to

hold to comply with state law?
Our conclusion in response to Question 1 that there would be no dual office holding violation is dispositive of this question.

3.

If not, would he be free to hold both positions?

As stated above, it is our opinion that service as both a city council member and as a deputy fire chief

would not be a violation of the Constitutional prohibition against dual office holding. However, you may wish to contact the State Ethics Commission to confirm that there are not any conflicts of interest.

Our

Office defers to the Ethics Commission on ethical issues since it was given authority by the Legislature to interpret and issue opinions pertaining to the Ethics Act.

See S.C. Code Ann. § 8-13-320(11) (1976

Code, as amended).
4.

If he needed to resign as deputy fire chief would he be allowed to work as a paid firefighter in that department? Would he be allowed to work as a paid fire fighter in any department in South

Carolina? If not, would he be able to work as a paid firefighter in a nearby jurisdiction in another state?

2 See Op. S.C. Attv. Gen.. 20 1 8 WL 1 1 60089, at * 1 (Feb. 2 1 , 20 1 8) (quoting Op. S.C. Attv. Gen.. 20 1 3 WL 5291571 (September 9, 2013)) ("[t]his Office has advised on numerous occasions that a member of a town

or city council holds an office for purposes of the constitutional prohibition against dual office holding.")

3 S.C. Const, art. XVII § 1 A, supra.

The Honorable Josiah Magnuson
Page 4
October 4, 2018

We believe that the deputy fire chief would not be required to resign from the fire department under the

dual office holding provision of the State Constitution if he won the city council seat. The State Ethics Commission can advise you if there are any ethical issues which might require his resignation from the fire department. CONCLUSION:

In conclusion, we believe that an individual can serve as both deputy fire chief of a special purpose district and as a member of a city council without violating the State Constitutional prohibition against dual office holding. However, you may wish to contact the State Ethics Commission to confirm that there are not any conflicts of interest. Sincerely,
\

Elinor V. Lister
Assistant Attorney General

REVIEWED AND APPROVED BY:

i

Robert D. Cook
Solicitor General