Could the Town of Sellers mayor ignore dual-office limits or appoint relatives and nonresidents?

Plain-English summary

In an August 2022 opinion to the Town of Sellers mayor, the South Carolina Attorney General said a mayor must comply with the state constitution and statutes limiting dual office holding. The office did not decide whether a particular family appointment was lawful; it pointed to the state Ethics Act and deferred interpretation of that law to the State Ethics Commission. It also said residency for a friend appointed to a municipal position depended on the nature of the position and the rules governing it.

What this means for you

Mayors and town councils

The opinion said municipal powers came from state law and could not override state constitutional or statutory limits. It quoted the mayor-council form's appointment powers, while noting those powers were subject to law and personnel rules.

Relatives considered for town positions

The office directed the family-member question to the State Ethics Commission, which had statutory authority to interpret the Ethics Act. It quoted the prohibition on a public official causing a family member's employment or appointment to a position in which the official has a supervisory or management role. The office also referred the mayor to town ordinances; it did not decide a particular appointment.

People appointed from outside Sellers

The office said municipal public officers had a residency requirement, but some appointed positions were not public offices. It said each appointment needed its own analysis of statutes, the position's duties, municipal ordinances, and personnel rules.

Common questions

Q: Could the Sellers mayor waive South Carolina dual-office limits? A: No. The opinion said the mayor had to follow the state constitution and code, including dual-office provisions.

Q: Did the opinion approve hiring the mayor's family members? A: No. The Attorney General deferred the ethics question to the State Ethics Commission and pointed to the Ethics Act's family-member restriction and town ordinances.

Q: Could the mayor appoint a friend who lived outside town? A: The opinion did not give a blanket answer. Residency depended on whether the position was a public office or an employee role and on the governing state and local rules.

Q: Are all appointed municipal positions public offices? A: No. The opinion said some appointed positions were not public offices, so the residency question had to be decided position by position.

Background and statutory framework

The mayor asked three questions: whether he could override dual-office rules, whether he could appoint family members, and whether he could appoint friends who lived elsewhere. The Attorney General discussed the state constitution, the municipal mayor-council form, the Ethics Act, and residency law. Its conclusion left specific ethics and residency determinations to the appropriate body and the facts of each position.

Citations and references

• S.C. Code Ann. § 5-7-30: municipal authority to enact ordinances consistent with state law.
• S.C. Code Ann. § 5-9-10: mayor-council government structure.
• S.C. Code Ann. § 8-13-750(A): family-member appointment restriction quoted in the opinion.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/opinion-on-the-authority-of-the-mayor-for-the-town-of-sellers/
• Original PDF: https://www.scag.gov/media/gr3pnuj1/03066743.pdf

Original opinion text

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Alan Wilson
ATTORNEY GENERAL

August 2, 2022

The Honorable Frank Jones
Town of Sellers
PO Box 116

Sellers, SC 29592
Dear Mayor Jones:

You have requested an opinion of this Office regarding the authority of the Town of Sellers Mayor. You have presented us with several questions and we will address each question in turn. LAW/ANALYSIS Question 1 :

Does the Town of Sellers Mayor have the authority to override the State of South Carolina (Dual offices Laws) dated back to (1895) and section (5-7-180) prohibits a person from holding two offices of (HONOR OR PROFIT) at the same time? Your question involves dual office holding. The South Carolina Constitution provides:

[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. Section 5-7-180 of the South Carolina Code of Laws states “[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. Ann. § 5-7-180 (1976 Code, as amended). We will begin with a discussion of the powers of municipalities. Our Office has previously stated that “it is settled law that counties and municipal corporations have only such powers as are granted to them by legislative enactment.” Op. S.C. Atty. Gen., 1988 WL 383501 (Feb. 25, ember i C. uenkis Building

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The Honorable Frank Jones
Page 2

August 2, 2022

1988) (quoting Williams, et al. v. Wylie, et al., 217 S.C. 247, 60 S.E.2d 586 (1950); 56 Municipal Corporations, etc., Section 193)). This stems from the State Constitution’s provision that “[t]he structure and organization, powers, duties, functions, and responsibilities of the municipalities shall be established by general law . . .” S.C. Const, art. Am.Jur.2d,

VIII, § 9.
The Legislature granted powers to municipalities through section 5-7-30:
[e]ach municipality
conferred

to

its

of the

specific

State,
form

in addition to
of

government,

the powers
may

enact

regulations, resolutions, and ordinances, not inconsistent with the Constitution and general law of this State,. . . . S.C. Code Ann. § 5-7-30 (1976 Code, as amended).

The Town of Sellers has a mayor-council form of government, according to the Municipal Association of South Carolina. See www.masc.sc/search/?k=form%20of%20government. Section 5-9-10 states that “[e]xcept as specifically provided for in this chapter, the structure, organization, powers, duties, functions and responsibilities of municipal government under the mayor-council form shall be as prescribed in Chapter 7,” which includes section 5-7-30. S.C. Code Ann. § 5-9-10 (1976 Code, as amended).

Section 5-9-30 provides the powers and duties of the mayor in this form of government: The

mayor shall

be the chief administrative officer of the
municipality. He shall be responsible to the council for the administration of all city affairs placed in his charge by or under Chapters 1 through 17. He shall have the following powers and duties:

(1) to appoint and, when he deems it necessary for
the good of the municipality, suspend or remove all
municipal employees and appointive administrative

officers

provided

for

by

or under

Chapters 1
through 1 7, except as otherwise provided by law, or
personnel rules adopted pursuant to Chapters 1
through 17. He may authorize any administrative
officer

who is subject to his direction and
supervision to exercise these powers with respect to

subordinates in that officer's department, office or
agency;

The Honorable Frank Jones
Page 3

August 2, 2022

(2) to direct and supervise the administration of all
departments,

offices

municipality

except

and
as

agencies

otherwise

of

provided

the
by

Chapters 1 through 17;

(3) to preside at meetings of the council and vote as
other councilmen;

(4) to act to insure that all laws, provisions of
Chapters 1 through 1 7 and ordinances of the
council,

subject to enforcement by him or by
officers subject to his direction and supervision, are

faithfully executed;
(5) to prepare and submit the annual budget and
capital program to the council;
(6) to submit to the council and make available to
the public a complete report on the finances and
administrative activities of the municipality as of
the end of each fiscal year; and
(7) to make such other reports as the council may
require concerning the operations of municipal
departments, offices and agencies subject to his
direction and supervision.
S.C. Code Ann. § 5-9-30 (1976 Code, as amended).
A mayor does not have the authority to override the South Carolina Constitution or South Carolina Code of Laws. A municipality’s powers are derived from both, and the Legislature expressly provides in section 5-7-30 that a municipality’s ordinances are subject to the State Constitution and general laws.

regulations,

resolutions,

and

Section 5-9-10 emphasizes that Chapter 7, which includes section 5-7-30, is applicable to a municipal government with a mayor-council form of government. The mayor in this form of

government is required to act to insure that all laws, provisions of Chapters 1 through 17 and town ordinances, subject to enforcement by him or by officers under his direction and control are faithfully executed. Therefore, the Town of Sellers Mayor must submit to and comply with the State Constitution and State Code of Laws, including those sections pertaining to dual office holding.

The Honorable Frank Jones
Page 4
August 2, 2022

Question 2:

Does the Town of Sellers, Mayor have the authority to appoint or allow his/her family members related by blood or marriage to serve on committees or do labor for the Town of Sellers (NEPOTISM)?

We suggest that you contact the State Ethics Commission, because your question involves ethics. Our Office defers to the Ethics Commission since it was given authority by the Legislature to interpret and issue opinions regarding the Ethics Act. See S.C. Code Ann. § 8-13-320(1 1) (1976 Code, as amended).

We draw your attention, however, to section 8-13-750 of the Ethics Act,

which states:
(A) No public official . . . may cause the employment, appointment, ... or advancement of a

family member to a state or local office or position in which the public official . . . supervises or manages. S.C. Code Ann. § 8-13-750(A) (1976 Code, as amended). You should also review the Town of Sellers Ordinances for guidance. To the best of our knowledge, the ordinances are not published, and are therefore not available for our review. Question 3:

Does the Town of Sellers Mayor have the authority to appoint his/her friends who do not live in the city limits to certain committees over the voting citizens that live within the city limits? Pursuant to section 5-9-30, the mayor in a mayor-council form of government has the power to

appoint all municipal employees and appointive administrative officers, except as otherwise provided by law or personnel rules. You appear to be asking if there is a residency requirement for appointment to municipal committees. As we have not been provided with any information regarding the committees, we will provide you with the general law. The qualifications for a particular position must be reviewed in order to determine if there is a residency requirement. The South Carolina Constitution provides qualifications for public offices in the State and its political subdivisions. A public officer is described as: “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 Honorable Frank Jones
Page 5
August 2, 2022

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 impliedly,

by

the

legislature

or through

legislative

or

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). In determining whether a position is a public office, some factors to be considered 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. Atty. Gen.. 2013 WL 3243063 (June 17, 2013) (quoting State v. Crenshaw, 274 S.C. 475, 478, 266 S.E.2d 61, 62 (1980)). The South Carolina Constitution requires that “[n]o person shall be elected or appointed to any office in this State unless he possess the qualifications of an elector . . . .” S.C. Const, art. XVII
§ 1 . This Office has previously determined that “Article XVII, section 1 of the South Carolina Constitution (1976) specifically imposes a residency requirement on all officers.” Op. S.C. Atty. Gen., 2007 WL 1651338 at 2 (May 21, 2007). We explained: Section 7-5-120 of the South Carolina Code (Supp. 2006) provides the requirements of a qualified elector. Among these is the requirement that the elector be “a resident in the county and in the polling precinct in which the elector offers to vote.” S.C. Code Ann. § 7-5-120. This constitutional provision not only reiterates the residency requirement set forth in statutory provisions specifically mandating residency as a qualification for office, but our Supreme Court interpreted article XVII, section 1 to imply a residency requirement even when one is not specified by the Legislature. McLure v. McElroy, 211 S.C. 106, 120, 44 S.E.2d

101, 108 (1947),
Recreation Dist.,

overruled on other grounds by Weaver v.
328
S.C.
83, 492
S.E.2d 79 (1997).

Id. Therefore, there is a residency requirement for public officers of municipalities.

The Honorable Frank Jones
Page 6

August 2, 2022

Some appointed positions do not constitute public offices and other resources must be reviewed for a residency requirement.

The South Carolina Code of Laws contains qualifications for

certain municipal positions. McQuillin, Municipal Corporations, §10:32 explains: The state may, and sometimes does, prescribe in what mode or

manner a municipal corporation shall exercise its powers. It is generally within the legislative province to direct in what way, through what board of municipal officers or agents, or by what municipal officers the powers given shall be exercised.

Municipal ordinances can also provide qualifications for a municipal position. As explained by a

legal treatise, “[m]unicipalities have the legislative authority articulated in state constitution to enact qualifications and standards for appointive employee positions . . . .” 56 Am. Jur. 2d Municipal Corporations § 208 (quoting Kane v. City of Albuquerque, 358 P.3d 249 (N.M. 2015)).

Municipal ordinances can further add qualifications to a municipal position that has

been created by the State Constitution or by statute:
The qualifications prescribed by constitution or statute are usually

sufficient, but charters and ordinances sometimes name additional qualifications which are not to be inconsistent with the constitution or statute unless by virtue of constitutional grant. McQuillin, Municipal Corporations, § 12:97.

Additionally, municipal personnel rules must be examined for a residency requirement, as section 5-9-30 specifically provides that the appointment powers of a mayor in a mayor-council form of government are subject to both the law and any adopted personnel rules. A municipal board, commission, or committee may also have its own qualifications for membership. Therefore, each appointment by the Town of Sellers Mayor must be analyzed on an individual

basis to determine if it has a residency requirement.
CONCLUSION

In conclusion, the Town of Sellers Mayor must submit to and comply with the State Constitution and State Code of Laws, including those sections pertaining to dual office holding. We suggest

that you contact the State Ethics Commission and review the Town of Sellers Ordinances regarding the Sellers Mayor’s authority to appoint and to hire family members for municipal

positions. Each appointment by the Sellers Mayor to a municipal position must be analyzed on an individual basis to determine if it has a residency requirement.

The Honorable Frank Jones
Page 7
August 2, 2022

Sincerely,

Elinor V. Lister

Assistant Attorney General

REVIEWED AND APPROVED BY:

Robert D. Cook
Solicitor General