Could a Piedmont Park fire district commissioner also serve as a volunteer firefighter in 1995?

Official title

Concerning whether a dual office holding situation exists if a duly elected commissioner simultaneously serves as a voluntary officer/fire-fighter.

Requester

The Honorable Harold Jenkins, Chairman, Piedmont Park Fire District Commission

Plain-English summary

In 1995, the South Carolina Attorney General's office concluded that a Piedmont Park Fire District commissioner could not also serve as an officer or firefighter of that same district under the common-law rule against a person being both master and servant. The district commission had power to select, supervise, and set terms for its fire personnel. The letter said that arrangement created a conflict even if an individual commissioner intended to vote impartially or an actual conflict arose only occasionally.

The author did not resolve the issue as constitutional dual office holding. The letter said a member of a lawfully organized fire department had been removed from that particular constitutional concern, so it relied instead on common-law incompatibility and public policy. A footnote suggested consulting the State Ethics Commission on any separate ethics-law question and did not purport to decide it.

Currency note

This opinion was issued in 1995. 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 letter say a commissioner could solve the problem by abstaining on firefighter matters? A: No. It treated the commission's general authority over district personnel as creating the incompatible master-servant relationship, even if a conflicting vote came up rarely.

Q: Was volunteer firefighter service a second public office under the letter? A: The letter said it was unnecessary to decide that question because the common-law conflict resolved the inquiry. It noted the constitutional treatment of fire department membership.

Q: Did the AG decide whether state ethics law separately prohibited the arrangement? A: No. A footnote deferred interpretation of those laws to the State Ethics Commission and suggested consulting it.

Background and statutory framework

Piedmont Park's commissioners asked about a commissioner also serving as a district volunteer officer or firefighter. The district's enabling acts empowered the commission to provide and oversee fire personnel. The letter applied McMahan v. Jones, a South Carolina Supreme Court decision rejecting commission members' simultaneous employment by their commission.

Citations and references

• South Carolina Constitution, Article XVII, §IA
• McMahan v. Jones

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/october-9-1995/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/12/1995oct9jenkins.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLES MOLONY CONDON
ATTORNEY GENERAL

October 9, 1995

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The Honorable Harold Jenkins
Chairman, Piedmont Park Fire District Commission
2119 State Park Road
Greenville, South Carolina 29609
RE: Informal Opinion
Dear Commissioner Jenkins:
By your letter of September 27, 1995, to Attorney General Condon, the Piedmont Park Fire District Commissioners have requested legal guidance as to whether a duly elected commissioner could also serve as a volunteer officer/fire-fighter. You have expressed the commission's concern that when an issue that requires a commission vote that would affect fire-fighters' interests, rather than overall district interest, arises, the vote of the commissioner/officer/fire-fighter might reflect the interest of the fire-fighters and not necessarily the interest of the district. You have asked whether this situation would constitute a conflict of interest for the commissioner/officer/fire-fighter. The Piedmont Park Fire District was created pursuant to Act No. 156 of 1963, as amended by Act No. 905of1970; Act No. 1840of1972; and Act No. 199of1975. The latter act provides for selection of the members of the governing body of the fire district. Section 3 of Act No. 156 of 1963 establishes the powers and duties of the governing body; subsection 9 empowers the governing body to "[a]ppoint officers, agents, employees and servants, prescribe the duties of such, fix their compensation, and determine if and to what extent they shall be bonded for the faithful performance of their duties.: Subsection 13 empowers the governing body to "[t]o provide personnel, voluntary or otherwise, necessary to man such [fire fighting] equipment[,]" while subsection 14 authorizes the governing body "[t]o provide and supervise the training of any volunteers used in manning

RF.\lBERT

c. DESNIS BUILDING

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POST OFFICE Box 11549

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COLUMBIA.

s.c. 29211-1549

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TELEPHONE:

803-734-3970

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FACS!l.llLE: 803-253-6283

The Honorable Harold Jenkins
Page 2
October 9, 1995
such equipment... ." These acts are silent as to the issue you have raised; however, principles of common law and judicial decisions provide the necessacy guidance. 1 Having a fireman or officer on the governing body of the fire district which employs or selects the volunteers and officers to man the fire fighting equipment would most probably be viewed as creating a situation in which the individual is both master and servant. The master-servant relationship is based on common law rather than statutocy law and may be summarized as follows:
[A] conflict of interest exists where one office is subordinate to the other, and subject in some degree to the supervisocy 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.

[I]t is not the performance, or the prospective right of performance, of inconsistent duties only that gives rise to incompatibility, but the acceptance of the functions and obligations growing out of the two offices... . The offices may be incompatible even though the conflict in the duties thereof arises but on rare occasions... . In any event, the applicability of the doctrine does not turn upon the integrity of the office-holder or his capacity to achieve impartiality.... 67 C.J.S. Officers §27. See also Ops. Att'y Gen. dated May 21, 1984; May 15, 1989; March 3, 1978; Januacy 19, 1994; and others. The Supreme Court, in McMahan v. Jones, 94 S.C. 362, 77 S.E. 1022 (1913), declared employment of two commission members, by the commission, to be illegal. The court stated:

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lt might be necessacy to consider statutes within the Ethics, Government Accountability, and Campaign Reform Act of 1991. Because this Office respectfully defers to the judgment of the State Ethics Commission in interpreting these ethics laws, you may wish to consult the Ethics Commission for its guidance on the applicable ethics laws.

The Honorable Harold Jenkins
Page 3
October 9, 1995
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. Should Richardson, as chairman of the commission, appoint the committee to investigate his own management of the infirmary, or check his accounts as treasurer? Should he be present, when his administration of the institution is being considered and discussed? Should he and Butler participate, when their own duties are being prescribed and their compensation fixed? It requires only a moment's reflection to see that the positions are utterly inconsistent, and ought not to be held by the same persons. Propriety, as well as public policy, forbids it. If it be said that there are three other members of the commission, who would make a quorum, the answer is that the legislature has expressed the intention that the State should have the benefit of the judgment and discretion , individually and collectively, of a commission of five members,-not three,-- in the administraton [sic] of this charity. By disqualifying two of their number, the commission has practically reduced its membership to three.

ML, 94 S.C. at 365.
Based on the foregoing, I am of the opinion that a master-servant relationship, in-contravention of common law and public policy, would be created if an individual were to serve both as a commissioner of the Piedmont Park Fire District Commission and as an officer or fire-fighter of the district, where the commissioners have the power and duty to appoint or otherwise select or provide the personnel necessary to man the fire fighting equipment. It is unnecessary to address the issue of dual office holding. The Constitution of the State of South Carolina was amended in 1989 to remove "a member of a lawfully and regularly organized fire department" from dual office holding considerations. See, inter alia, Art. XVII, §IA (1994 Cum. Supp.). Because a fireman would not be considered an office holder for dual office holding purposes, it is unnecessary to examine further the dual office holding issue. This letter is an informal opinion only. It has been written by a designated Senior Assistant Attorney General and represents the position of the undersigned attorney as to the specific questions asked. It has not, however, been personally scrutinized by the

The Honorable Harold Jenkins
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October 9, 1995
Attorney General nor officially published in the manner of a formal opinion. I trust that the foregoing has satisfactorily responded to your inquiry and that you will advise if additional assistance or clarification should be needed. With kindest regards, I am Sincerely,

'{J~ PJ fu'W(J
Patricia D. Petway
Senior Assistant Attorney General

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