Could a South Carolina town council member also serve as the town fire chief?

Plain-English summary

In July 2022, the South Carolina Attorney General answered a request about serving simultaneously on a town council and as the town's fire chief. The office said the state constitution's dual-office rule exempted membership in a regularly organized fire department, so that constitutional provision did not prevent the combination described. A separate municipal statute, however, barred a council member from holding another municipal office or employment during the elected term unless law authorized it. The opinion concluded that serving as the town fire chief violated that statute and most likely supplied grounds to forfeit the council seat.

What this means for you

Town council members

The opinion required analysis of both the constitutional exemption and the separate municipal employment restriction. It said the exemption for a volunteer fire department did not erase the statute that governed council members' other town roles.

Volunteer fire departments

The office repeated its earlier view that fire chief service in a regularly organized volunteer department was not an “office” for purposes of the constitutional dual-office ban. That finding did not decide the municipal-employment issue in favor of a council member.

Municipal officials

The opinion connected violation of the municipal restriction to another statute providing for forfeiture of a mayor's or council member's office upon violation of an express prohibition in the municipal chapters. It described forfeiture as likely, rather than purporting to remove this council member itself.

Common questions

Q: Did the constitution alone bar a town council member from being fire chief? A: No. The opinion said the constitution's exception for members of regularly organized fire departments covered the volunteer fire-chief role it discussed.

Q: Could the council member still hold both town jobs under municipal law? A: The Attorney General said no. The separate statute barred a council member from holding another municipal office or employment during the term, absent legal authorization.

Q: Would the council member automatically lose the seat? A: The opinion said the violation most likely constituted grounds for forfeiture. It did not adjudicate a forfeiture proceeding.

Background and statutory framework

The requester asked whether he could simultaneously serve on a town council and as the town's fire chief. The Attorney General compared S.C. Const. art. XVII, § 1A with S.C. Code Ann. § 5-7-180 and the forfeiture provision in S.C. Code Ann. § 5-7-200(a). It concluded the statutory restriction controlled the practical outcome even though the constitutional dual-office rule did not prohibit the combination.

Citations and references

• S.C. Const. art. XVII, § 1A: dual-office rule and fire-department exception.
• S.C. Code Ann. § 5-7-180: municipal office and employment restriction.
• S.C. Code Ann. § 5-7-200(a): forfeiture provision discussed in the opinion.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/opinion-on-dual-office-holding/
• Original PDF: https://www.scag.gov/media/4bbdmykf/03046503.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

ALAN WILSON
ATTORNEY GENERAL

July 13, 2022

Rob Stamper

• 301 South Poplar Avenue
  Andrews, SC 29510

Dear Mr. Stamper:

You have requested an opinion from this Office regarding whether you can serve simultaneously as a member of a town council and as the town’s Fire Chief.

LAW/ANALYSIS

In order to answer your question, we must review both the South Carolina Constitution and the South Carolina Code of Laws. The South Carolina Constitution prohibits dual office holding:

No person may hold 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 . . . The limitation above set forth does not prohibit any officeholder from being a delegate to a constitutional convention.

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

In a prior opinion, we determined that “[b]ecause article XVII, section 1A specifically exempts members of ‘regularly organized fire department[s]’ from the dual office holding prohibition,” holding the positions of Fire Chief or Assistant Fire Chief “would not constitute an office for purposes of dual office holding.” Op. S.C. Atty. Gen., 2006 WL 3877514 (Dec. 28, 2006). Therefore, it is our opinion that service as a member of a town council and as a fire chief of a volunteer fire department would not be a violation of the Constitutional prohibition against dual office holding.

However, statutory law must also be considered. Section 5-7-180 provides that “[e]xcept where authorized by law, no mayor or councilman shall hold any other municipal office or municipal employment while serving the term for which he was elected.” S.C. Code Ann. § 5-7-180 (1976 Code, as amended). In a prior opinion, we determined that section 5-7-180 “is, in part, designed to address the common law principle that one cannot be both master and servant at the same time.” Op. S.C. Atty. Gen., 2013 WL 5921571 (Sept. 9, 2013). Of particular concern here is

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Rob Stamper
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July 13, 2022

section 5-7-200(a), which provides that “[{a] mayor or councilman shall forfeit his office if he .... (2) violates any express prohibition of Chapters 1 to 17.”S.C. Code Ann. § 5-7-200(a) (1976 Code, as amended). Pursuant to section 5-7-200(a), “a violation of section 5-7-180 constitutes grounds for forfeiture of the office of mayor or councilman of a municipality.” Op. S.C. Atty. Gen., 2012 WL 1036294 (March 20, 2012).

CONCLUSION
While service as a member of a town council and as the town’s fire chief does not violate the Constitutional prohibition against dual office holding, it would be a violation of section 5-7-180 and would most likely constitute grounds for forfeiture of the office of councilman. Sincerely,

Elinor V. Lister
Assistant Attorney General

REVIEWED AND APPROVED BY:

WR. Lrg

obert D. Cook
Solicitor General