Could a South Carolina municipal clerk of court serve on a different city's council at the same time?

Plain-English summary

In 2003, South Carolina's Attorney General concluded that Mauldin's clerk of court could not simultaneously serve on Simpsonville's city council. The AG regarded both positions as public offices for the constitutional dual-office rule. It said the clerk's description of her day-to-day work as clerical did not alter the office's status, which the office traced to statutory authorization of the municipal clerk position.

The different municipal jurisdictions did not change the answer. The opinion also explained that assuming a second covered office would automatically vacate the first; the former holder could continue acting de facto until a successor was selected, with public-facing acts generally valid unless a court ruled otherwise.

Currency note

This opinion was issued in 2003. 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.

Historical summary

Municipal clerks and council candidates

The AG addressed simultaneous service, not candidacy alone. It found that even a clerk without warrant-signing or case-pleading duties held a municipal office because the position itself was statutorily authorized.

City officials

The office treated council membership as a second office even though it was in a different city. Under the rule described, taking the second office vacated the clerk position by operation of law.

Common questions

Could the Mauldin clerk also hold a Simpsonville council seat?
The AG said no; the constitutional prohibition applied across municipal boundaries.

Did purely clerical tasks make the clerk an employee rather than an officer?
No. The office said its classification of a municipal clerk rested on the statutory creation of the position, rather than the particular clerk's assigned duties.

Did running for council itself trigger the prohibition?
The opinion answered the question of holding the positions simultaneously. It did not say candidacy alone created a second office.

What would happen if the clerk assumed the council seat?
The AG described an automatic vacancy in the first office and possible de facto service there pending a successor.

Background and statutory framework

The requester described her Mauldin court-clerk duties and a possible Simpsonville council run. The AG applied Article XVII, Section IA's two-office prohibition, earlier opinions on council and clerk positions, and Section 5-7-220's authorization of a municipal clerk. It concluded that both roles were offices regardless of jurisdiction.

Citations and references

The opinion discussed Section 5-7-220 and Article XVII, Section IA of the state constitution.

Official title

Concerning dual office holding. Specifically, asking whether simultaneously holding the positions of Mauldin Clerk of Court and Simpsonville City Council member would constitute dual office holding.

Requester

Ms. Geneva D. Lawrence, Mauldin Clerk of Court

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/september-12-2003/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/03/03sept-12-Lawrence.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
HENRY MCMASTER
ATIDRNEY GENERAL

September 12, 2003

Ms. Geneva D. Lawrence
Mauldin Clerk of Court
207 Beattie Street
Simpsonville, South Carolina 29681

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Dear Ms. Lawrence:

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You have requested an opinion from this Office concerning dual office holding. You have indicated that you are currently employed by the City of Mauldin as the Clerk of Court. You state that you do not possess the power to sign warrants, plead cases, or reduce tickets, and that accordingly you do not believe that you possess any power of the state. You indicate that you have not been sworn in, and simply oversee the clerical portion of the court. You further indicate that you have been approached to run for a position on the Simpsonville City Council. You ask whether simultaneously holding the positions of Mauldin Clerk of Court and Simpsonville City Council member would constitute dual office holding.

Law I Analysis

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Article XVII, Section IA of the State Constitution provides that "no person may hold two offices of honor or profit at the same time ... "with exceptions specified for an officer in the militia, member of a lawfully and regularly organized fire department, constable, or notary public. For this provision to be contravened, a person concurrently must hold two offices which have duties involving an exercise of some portion of the sovereign power of the State. Sanders v. Belue, 78 S.C. 171, 58 S.E. 762 (1907). Other relevant considerations are whether statutes, or other such authority, establish the position, prescribe its duties or salary, or require qualifications for an oath for the position. State v. Crenshaw, 274 S.C. 475, 266 S.E.2d 61 (1980). This Office has advised on numerous occasions that a member of a city or town council would be considered an officer for dual office holding purposes. See, as representative of those numerous opinions, Ops. S.C. Atty. Gen., dated July 19, 2001; April 12, 1998; June 12, 1995, February 4, 1994; July 23, 1993. Therefore, the question turns to whether the position of Municipal Clerk of Court likewise be considered an office. This Office has also consistently opined that a Municipal Clerk of Court (Town Clerk, City Clerk, by whatever name called) holds an office for dual office holding. See, as representative of

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Ms. Lawrence
Page 2
September 12, 2003
those numerous opinions, Ops. S.C. Atty. Gen., dated July 25, 2002; August 5, 1992; March 14, 1983; August 18, 1981. It does not appear that we reached this conclusion based on the specific duties of any given municipal clerk of court. The determining factor in the conclusion that a municipal clerk of court is an office holder appears to be based rather in the fact that the General Assembly has created and authorized such an office. Section 5-7-220, Code of Laws of South Carolina, 1976, authorizes the city council or city manager to appoint "an officer of the municipality who shall have the title of municipal clerk." That code section further prescribes the duties of the municipal clerk. This Office has held on numerous occasions that a position that is statutorily authorized by the General Assembly is an office for dual office holding purposes. See, as representative of those numerous opinions, Ops. S.C. Atty. Gen., dated April 21, 1998; January 7, 1991; July 13, 1981; March 6, 1980; August 28, 1974. Based on the forgoing authorities, it is the opinion ofthis Office that the Clerk of Court for the City of Mauldin would hold an office for dual office holding purposes. Accordingly, we advise that a person who simultaneously holds the positions of City Clerk of Court and City Council member would violate the constitutional prohibition on dual office holding, regardless of whether the positions are held in the same or different jurisdictions. When a dual office holding situation occurs, the law operates automatically to "cure" the problem. If an individual holds one office on the date he assumes a second office, assuming both offices fall within the purview of Article XVII, Section lA of the Constitution (or one of the other applicable constitutional prohibitions against dual office holding), he is deemed by law to have vacated the first office held. Thus, the law operates automatically to create a vacancy in that first office. However, the individual may continue to perform the duties of the previously held office as a de facto officer, rather than de jure, until a successor is duly selected to complete his term of office (or to assume his duties ifthe term of service is indefinite). See Walker v. Harris, 170 S.C. 242 (1933); Dovev. Kirkland, 92 S.C. 313 (1912); Statev. Coleman, 54 S.C. 282 (1898); Statev. Buttz, 9 S.C. 156 (1877). Furthermore, actions taken by a de facto officer in relation to the public or third parties will be as valid and effectual as those of a de jure officer unless or until a court should declare such acts void or remove the individual from office. See, for examples, State ex rel. McLeod v. Court of Probate of Colleton County, 266 S.C. 279, 223 S.E.2d 166 (1976); State ex rel. McLeod v. West, 249 S.C. 243, 153 S.E.2d 892 (1967); Kittman v. Ayer, 3 Stob. 92 (S.C. 1848).

Ve;?;trRobert D. Cook
Assistant Deputy Attorney General
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