Could a newly elected South Carolina legislator work temporarily for Folly Beach or assist its city attorney?

Plain-English summary

In September 2020, the South Carolina Attorney General concluded that a newly elected legislator could serve briefly as Folly Beach's transition coordinator while also serving in the General Assembly. The position described in the request was not created by statute or ordinance, reported to city officials, and did not appear to exercise sovereign power. The office therefore classified it as employment rather than a second public office.

It reached the same dual-office conclusion for a later contract with the city attorney to assist with the city's civil cases under that attorney's direction. The opinion addressed dual office holding, then suggested contacting the State Ethics Commission about possible conflicts of interest.

Currency note

This opinion was issued in 2020. 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 opinion allow the legislator to work as a transition coordinator?
A: Yes, on the duties described. The office viewed that short-term position as city employment rather than a public office.

Q: Did assisting the city attorney with civil cases count as a second public office?
A: The office concluded that the described contract work did not. The work would be directed by the city attorney and did not appear to involve sovereign power.

Q: Did the opinion clear possible ethics conflicts?
A: No. The office deferred ethics questions to the State Ethics Commission and suggested contacting it.

Background and statutory framework

South Carolina's constitutional provisions bar a General Assembly member from holding another office of honor or profit. The opinion used the judicial distinction between a public officer, whose continuing duties involve sovereign power, and an employee who performs duties assigned by an employer. It applied that distinction to the two proposed city roles. The analysis did not resolve possible conflicts under the Ethics Act.

Citations and references

The legal authorities discussed above appear in the official opinion. The analysis addressed the request as presented in 2020.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/september-10-2020/
• Original PDF: https://www.scag.gov/wp-content/uploads/2020/09/02377739.pdf

Original opinion text

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Alan Wilson
ATTORNEY GENERAL

September 1 0, 2020

Joseph C. Wilson, IV, Esq.

City Attorney

City of Folly Beach
PO Box 178
Folly Beach, SC 29439
Dear Mr. Wilson:

You have requested an opinion of this Office regarding dual office holding.

You state the

following:

The City of Folly Beach's City Administrator recently won office

to the South Carolina General Assembly.

She is resigning her

position as City Administrator prior to being sworn in to her new

position with the General Assembly. However, the City would like for her to remain an employee of the City for one to three months

to assist in her transition completely away from the City.

During

that period, her title would be "Transition Coordinator" or similar; she would report to the Mayor and City Administrator, and she would be engaged in the following duties:
-Transition

duties

including

training

new

Administrator, and organizing files and documents;

-Project

coordination,

construction

projects,

including
including

a

liaison

on

City

Hall

renovation and pedestrian path construction;
-Review of Freedom of Information Act requests

and responses; -City communications;
-Assisting

with

various

administrative

and

scheduling duties . . .

Further down the road, after she has ended her employment with the City, the former City Administrator may also contract with the

City of Folly Beach City Attorney to assist with the City's legal Rhmbert C. Dennis Building

»

Post Office Box 11549

• Columbia, SC 292 11-1549

. Telephone 803-734-3970

. Facsimile 803-253-6283

Joseph C. Wilson, IV, Esq.
Page 2

September 10, 2020

issues. This work would not include any criminal or prosecutorial matters, which are not handled by the City Attorney but by a separate prosecutor. Rather, she would most likely be assisting the

City Attorney with on-going civil litigation involving the City, on a contract and case-specific basis . . . You have kindly provided us with the City of Folly Beach ordinances regarding the City Administrator and the City Attorney. LAW/ANALYSIS

In S.C. Pub. Interest Found, v. S.C. Transn. Infrastructure Bank. 403 S.C. 640, 646, 744 S.E.2d 521, 524 (2013), the South Carolina Supreme Court stated: "[t]he

South

Carolina

Constitution

prohibits

members

of

the General Assembly from holding another office during their service in the legislature, both expressly and by virtue of the

repeated general prohibitions against dual office holding. See S.C.

Const,

art.

Ill,

§

24 ("No person is eligible to a seat in

the General Assembly while he holds any office or position of profit or trust under this State...."); S.C. Const, art. VI, § 3 ("No person may hold two offices of honor or profit at the same time."); S.C. Const, art. XVII, § 1A ("No person may hold two offices of honor or profit at the same time....").

We must therefore determine whether the positions you described in your letter are offices. The 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).

Joseph C. Wilson, IV, Esq.
Page 3

September 10, 2020

Segars-Andrews v. Judicial Merit Selection Commission. 387 S.C. 109, 691 S.E.2d 453 (2010). 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)).
In your letter, you state that the City of Folly Beach would like to employ this individual as a "Transition Coordinator" for a short time. On a number of occasions, this Office has stated that a member of the General Assembly may also hold a position of state or local employment, consistent with the dual office provisions of the State Constitution.

See Ops. S.C. Attv. Gen..

1984 WL 250017 (Dec. 10, 1984); 1984 WL 250014 (Nov. 26, 1984).

In Sanders v. Belue. 78

SC 171, 174, 58 SE 762 (1907), the Court defined an "employee" as follows: One who merely performs the duties required of him by persons employing him under an express contract or otherwise, though such persons be

themselves public officers,

and though the

employment be in or about a public work or business, is a mere employee.

Citing Sanders, we explained in a prior opinion why an assistant county administrator was an employee and not a public officer:

The Spartanburg County Assistant Administrator's position is not

created by statute, county ordinance or other law and he is appointed by the County Commission to perform such duties as

directed by the County Administrator. He serves at the will of, and has no authoritative power other than that delegated by the County Administrator.

Op. S.C. Attv. Gen.. 1969 WL 15749 (Dec. 30, 1969).
Similarly, the Transition Coordinator position described by you is not created by statute or ordinance. The holder of the position reports to the Mayor and City Administrator and performs specific duties. The duties are not defined by either statute or ordinance and they do not appear

to be an exercise of the sovereign power of the State.

Accordingly, it is our opinion that the

Joseph C. Wilson, IV, Esq.
Page 4
September 1 0, 2020

Transition Coordinator is an employee. It would not be dual office holding for this individual to be employed as Transition Coordinator by the City of Folly Beach while serving as a member of the General Assembly.

You are also asking if the same individual, after she has ended her employment as Transition Coordinator, can contract with the City Attorney to assist with the City's civil legal issues. From

your description, the position is an employee, as defined by the Sanders case, rather than a public officer.

The position is not created by statute or ordinance. The individual would contract with

you, as City Attorney, to assist you with the City's civil cases and would be subject to your direction.

The duties to be performed are not defined by statute or ordinance and they do not

appear to involve an exercise of the sovereign power of the State.

We therefore believe that it

would not violate the prohibition against dual office holding for this individual to contract with you, as City Attorney, to assist you with the City's civil cases while serving as a member of the General Assembly.

You may wish, however, 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(1 1) (1976 Code, as amended). CONCLUSION

In our opinion, it would not be a violation of the constitutional prohibition against dual office holding for an individual to be both a member of the General Assembly and an employee, as defined by Sanders v. Belue. 78 SC 171, 58 SE 762 (1907), of the City of Folly Beach. You may

wish, however, 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:

Robert D. Cook
Solicitor General

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