Can one person serve as both an Allendale County administrator and the Olar town administrator in South Carolina?

Official title

Opinion on dual office holding (serve as county administrator and town administrator).

Requester

Requested by Walter H. Sanders, Jr., Esq., Attorney for Allendale County.

Plain-English summary

The South Carolina Attorney General concluded that one person could serve as both the Allendale County Administrator and the Olar Town Administrator without violating the state constitution's dual-office-holding prohibition. The opinion reasoned that neither position likely exercises sovereign power as a public office: each administrator carries out administrative duties delegated by a council, while legislative, policy-making, and discretionary authority remains with the council.

The AG reached the county conclusion under Allendale County's council form of government, where section 4-9-310 places policy making and administration in the county council. The council may delegate ministerial and administrative work but not its legislative or discretionary powers. For Olar, section 5-11-40 authorizes a council-form municipality to hire an administrator to assist the council, with the council retaining legislative, administrative, and policy-making power.

The opinion separately declined to make a definitive conflict-of-interest finding. It said only a court could determine with certainty whether the two roles create a conflict, noted that both administrators act at the direction of separate councils, and referred ethical questions to the State Ethics Commission.

What this means for you

Allendale County and Olar officials

For the duties described, the opinion treats both administrator positions as employment roles rather than public offices exercising sovereign power. Holding both therefore did not violate the constitutional dual-office prohibition.

Local-government administrators

The opinion's result depends on the administrators performing delegated administrative duties while their respective councils retain legislative, policy-making, and discretionary authority. The AG noted that the relevant local ordinances and internal policies were not available for its full review.

Ethics officials and government attorneys

The opinion did not resolve whether the arrangement creates a master-servant conflict or another ethics problem. It states that only a court can make that determination with certainty and that the State Ethics Commission has authority to interpret and issue opinions under the Ethics Act.

Common questions

Q: Are county and town administrator positions automatically “offices” under South Carolina's dual-office rule? A: No. The opinion looked to whether each position exercises sovereign power. On the described facts, both administrators appeared to carry out duties assigned by their councils rather than exercise the councils' sovereign authority.

Q: Can the same person serve Allendale County and the Town of Olar as administrator? A: The AG concluded that doing so would not violate the constitutional prohibition on holding two offices of honor or profit.

Q: Did the AG decide that the arrangement has no conflict of interest? A: No. The opinion said it lacked enough information to determine that issue and that only a court could decide it with certainty.

Q: Why did the opinion mention the State Ethics Commission? A: The AG explained that the Legislature gave the Commission authority to interpret and issue opinions concerning the Ethics Act.

Background and statutory framework

South Carolina's dual-office analysis asks whether a position is a public office that exercises some portion of sovereign power. The opinion applied factors from Sanders v. Belue, Segars-Andrews, and State v. Crenshaw, including the source of appointment and authority, whether duties are defined by law, and whether the position represents the sovereign.

For Allendale County, the AG relied on section 4-9-310 and earlier opinions allowing a council-form county to delegate ministerial and administrative duties while retaining policy and discretionary power. For Olar, the AG relied on sections 5-11-30 and 5-11-40, which vest municipal power in the council and allow the council to hire an administrator to assist it.

Citations and references

Constitution and statutes:

• S.C. Const. art. XVII, § 1A
• S.C. Code Ann. § 4-9-310
• S.C. Code Ann. § 5-11-30
• S.C. Code Ann. § 5-11-40
• S.C. Code Ann. § 8-13-320(11)

Cases:

• Sanders v. Belue, 78 S.C. 171, 58 S.E. 762 (1907)
• Segars-Andrews v. Judicial Merit Selection Commission, 387 S.C. 109, 691 S.E.2d 453 (2010)
• State v. Crenshaw, 274 S.C. 475, 266 S.E.2d 61 (1980)
• O’Shields v. Caldwell, 207 S.C. 194, 35 S.E.2d 184 (1945)
• McMahan v. Jones, 94 S.C. 362, 77 S.E. 1022 (1913)

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/opinion-on-dual-office-holding-serve-as-county-administrator-and-town-administrator/
• Original PDF: https://www.scag.gov/media/zlobevhr/03304441.pdf

Original opinion text

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Alan Wilson
Attorney General

June 2, 2023

Walter H. Sanders, Jr., Esq.
Allendale County Attorney

PO Box 840
Fairfax, SC 29827

Dear Mr. Sanders:

On behalf of the Allendale County Council, you are requesting an opinion from this Office

regarding whether it would constitute dual office holding or create an ethical conflict for a person to concurrently serve as a county administrator and as a town administrator. We presume that your question involves the County Administrator for Allendale County and the Town Administrator for the Town of Olar. Please let us know if this is not the case. LAW/ANALYSIS

The South Carolina Constitution provides for dual office holding:

[n]o 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 § 1 A.

The South Carolina Supreme Court explains that an “office” for dual office holding purposes is: “[o]ne 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.” L'

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Walter H. Sanders, Jr., Esq.
Page 2

June 2, 2023

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.2d453 (2010).

In State v. Crenshaw, 274 S.C. 475, 478, 266 S.E.2d 61, 62 (1980), the Court provided some

criteria to consider when determining if a position is an office:

Criteria to be considered ... include 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.

According to the South Carolina Association of Counties,1 Allendale County has adopted a

council form of government.2 In a council form of government, “the responsibility for policy making and administration of county government” is “vested in the county council.” S.C. Code Ann. § 4-9-310 (1976 Code, as amended).

“The structure, organization, powers, duties,

functions and responsibilities of county government under the council form shall be as

prescribed in Article 1 of this chapter.”

Id.

There is no provision in a council form of

government for a county administrator.

We have previously considered whether a county council which operated under the council form of government could lawfully delegate administrative duties to others. See Op. S.C. Atty. Gen., 1 See www.sccounties.org/sites/default/files/uploads/resources/forms_of_govemment_as_of_janl_2023.pdf. 2 Although the Allendale County Government website provides otherwise, you confirmed in a prior opinion that Allendale County has a council form of government. See Op. S.C. Atty. Gen.. 2018 WL 6815523 (Dec. 13, 2018); Allendale County Government website, located at https://allendalecounty.com/govemment.htm

Walter H. Sanders, Jr., Esq.
Page 3
June 2, 2023

1985 WL 259106 (Jan. 7, 1985).

According to our research, a county council could delegate

certain duties:

[t]he right of a county board to delegate its authority depends on the nature of the duty to be performed. Powers involving the exercise of judgment and discretion are in the nature of public

trusts and cannot be delegated to a committee or agent. Duties which are purely ministerial and executive and do not involve the exercise of discretion may be delegated by the board to a committee or to an agent, an employee, or a servant.

Id (quoting 20 C.J.S., Counties, § 89).

Another treatise similarly provided:

While legislative or discretionary powers or trusts devolved by charter or law on a council or governing body, or a specified board or officer cannot be delegated to others,

it is equally well

established that ministerial or administrative functions may be delegated to subordinates. The law has always recognized and

emphasized the distinction between instances in which a discretion must be exercised by the officer of department or governing body in which the power is vested, and the performance of merely

ministerial duties by subordinates and agents.

Id (quoting McQuillin, Municipal Corporations, § 10.41).

Pursuant to section 4-9-3 1 0, a county council under a council form of government is responsible

for the “administration of county government.”

S.C. Code Ann. § 4-9-310.

We determined in

our January' 7, 1985 opinion that section 4-9-310 authorized a county council to delegate certain

administrative powers and duties:

The foregoing provision under the council form of government which authorizes council to perform administrative functions also gives a council, operating under this form, all of the powers contained in Article I; moreover, Section 4-9-30(6) authorizes

council generally to establish such agencies, departments, etc. as

Walter H. Sanders, Jr., Esq.
Page 4

June 2, 2023

are necessary and proper. Thus, it is evident that Georgetown County Council possesses the statutory authority to delegate certain administrative powers and duties to others, including a committee of or individual members of county council. So long as Council does not delegate legislative or policy making powers to others but confines its delegation of authority to administrative and ministerial

powers a court would probably conclude such
delegation (including to a member of county council) is not an

unlawful delegation of power.

Op. S.C. Atty. Gen., 1985 WL 259106 at 3.3
We have not been provided with the county ordinances establishing the Allendale County

Administrator’s duties.4 Based on our 1985 opinion, however, the Allendale County Council is authorized to delegate administrative duties, but not duties involving an exercise of discretion

, to
the Allendale County Administrator under the council form of government. Such administra tive duties would not involve an exercise of the sovereign power of the State. According ly, it is our opinion that the Allendale County Administrator most likely does not hold an office

for dual

office holding purposes.

We also must consider whether the Town Administrator for the Town of Olar holds

a public
office. According to the South Carolina Municipal Association Directory, the Town of Olar has a council form of government. See www.masc.sc/municipalitv/olar. In a council form of municipal government, “[a]ll legislative and administrative powers of the municipal

ity and the
determination of all matters of policy shall be vested in the municipal council.” S.C. Code Ann.
§ 5-11-30 (1976 Code, as amended). The municipal council is specifically authorized to “hire an administrator to assist the council.”

S.C. Code Ann. § 5-11-40 (1976 Code, as amended). The
municipal council is also authorized to establish municipal departments, offices, and agencies and to prescribe their function. Id. All departments, offices, and agencies are to “be

administered by an officer appointed by and subject to the direction and supervisio n of the council.” Id.

3 We cautioned, however, that if a county council under a council form of government created administrator and assigned it the identical duties granted to a county administrator in a

the office of county

council-administrator form of

government, it might be deemed as having altered the governmental form without following

procedures in section 4-9-10. See Op. S.C, Atty. Gen.. 1985 WL 259106 at 4.

the required statutory

4 We do not have the ability to independently research this matter, since, to the best of our knowledge, County's Code of Ordinances are not published and therefore are not available for our review.

Allendale

Walter H. Sanders, Jr., Esq.
Page 5

June 2, 2023

We have previously considered whether a town administrator under a council form of government held an office for dual office holding purposes: The Town of Lexington operates under the council form of municipal government, which is provided for in Section 5-1 1-10 et seq., Code of Laws of South Carolina (1976). Section 5-1 1-40 of

the Code, in subsection (a) provides that “[t]he council may hire an administrator to assist the council.” No duties, qualifications, oath,

salary, or tenure are provided for by statute and thus are left to the discretion of Lexington Town Council. Because the Town Council is vested with all legislative and administrative powers needed to operate town government and the determination of policy is vested in council, it would appear that all of the sovereign power is most probably being exercised by council instead of the administrator.

Thus, it must be concluded that the administrator contemplated by Section 5-1 1 -40(a) of the Code is most probably not an office for dual office holding purposes.

Op. S.C. Atty. Gen., 1988 WL 485320 at 1 (Oct. 18, 1988).

Based on our prior opinion, we

believe that the Olar Town Administrator most likely does not hold an office for dual office holding purposes. Accordingly, it is our opinion that an individual can serve as both the County Administrator for Allendale County and the Town Administrator for the Town of Olar without violating the dual office holding prohibition of the South Carolina Constitution.

You are also inquiring as to whether serving in both of these positions creates an ethical conflict. This Office has previously stated regarding conflicts of interest:

As a general matter, all public officials are expected to act in the

best interest of the public in the performance of their duties without any interference from conflicting or competing interest. Our Supreme Court has recognized that “every public officer is

bound to perform the duties of his office honestly, faithfully and to the best of his ability, in a manner so as to be above suspicion of

irregularity, and to act primarily for the benefit of the public.” O’Shields v. Caldwell, 207 S.C. 194, 35 S.E.2d 184 (1945). Public employees must be above reproach and avoid even the appearance

Walter H. Sanders, Jr., Esq.
Page 6
June 2, 2023

of a conflict of interest in carrying out their duties. See Op. S.C. Atty. Gen. Dated July 25, 2002.

Op. S.C. Atty. Gen., 2003 WL 21043505 (April 3, 2003).
A conflict of interest can exist when an individual is both master and servant,

We have

described a conflict of interest arising from a master-servant relationship as follows: 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).

Moreover, our Supreme Court in McMahan v. Jones, 94 S.C. 362, 365, 77 S.E. 1022, 1022 (1913) stated:

‘[n]o 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.’

Thus, we recognize if a master-servant conflict exists, a public official is prohibited from serving in both roles.

Op. S.C. Atty. Gen., 2006 WL 2382449 (July 19, 2006).
While we do not have sufficient information to determine if a conflict of interest exists from a master-servant

relationship

or

otherwise,

a

consideration

is

that

the

Allendale

County

Administrator and the Olar Town Administrator act at the direction of their respective councils.

Walter H. Sanders, Jr., Esq.
Page 7
June 2, 2023

The Allendale County Administrator performs administrative duties which have been delegated to him by the Allendale County Council.

The Olar Town Administrator assists the Olar Town

Council with duties determined by the Town Council.

Both positions appear to be merely

carrying out the duties assigned to them without the discretion to decide if their actions are in the best interest of the public they serve.

However, only a court can determine with any certainty if

a conflict of interest exists.

You may wish to contact the State Ethics Commission to confirm that there are not any

violations of the ethics laws?

You also may wish to confirm that Allendale County and the

Town of Olar do not have any internal policies which would prevent an individual from serving in both of these positions. CONCLUSION

In our opinion, an individual can serve as both the County Administrator for Allendale County

and the Town Administrator for the Town of Olar without violating the dual office holding prohibition of the South Carolina Constitution.

Only a court can determine with any certainty if a conflict of interest exists when an individual

serves simultaneously as Allendale County Administrator and as Olar Town Administrator. However, a consideration is that both of these positions act at the direction of their respective

councils.

You may wish to contact the State Ethics Commission to confirm that there are not any

violations of the ethics laws. You also may wish to confirm that Allendale County and the Town of Olar do not have any internal policies which would prevent an individual from serving in both

positions.
Sincerely,

Elinor V. Lister
Assistant Attorney General

5 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).

Walter II. Sanders, Jr., Esq.
Page 8
June 2, 2023

REVIEWED AND APPROVED BY:

Xobert D. Cook
Solicitor General