Could a Laurens County associate probate judge also serve as a city utility commission’s contract attorney?

Plain-English summary

A Laurens County associate probate judge asked whether he could also represent the city's Commission of Public Works under a retainer. The AG concluded that the combination most probably would not violate South Carolina's constitutional prohibition on holding two public offices at once, based on the described duties and contract terms.

The associate judgeship was a public office because it exercised judicial authority. The commission attorney role appeared different: the requester described contract representation, no criminal prosecution or comparable sovereign duties, no position created by statute or ordinance, no oath, and no fixed term. The AG therefore viewed it as likely independent-contractor work rather than a second office. The letter separately identified possible judicial-conduct and professional-conduct questions without deciding them.

Currency note

This opinion was issued in 1994. 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

Did the AG treat an associate probate judge as a public officer?
Yes. The letter said the associate judge exercised the court's assigned jurisdiction and held an office for dual-office purposes.

Why was the commission attorney role different?
On the facts supplied, it was a retainer for legal advice and representation without the duties or formal features the AG associated with a public office.

Did the opinion give an unqualified approval of the retainer?
No. The AG said the combination most probably avoided the dual-office prohibition and pointed to separate judicial and lawyer conduct rules that could affect the arrangement.

Would prosecuting cases for the commission have fit the facts the AG analyzed?
No. The letter's analysis relied in part on the stated absence of criminal prosecution or similar sovereign duties in the attorney role.

Background and statutory framework

Article XVII, Section 1A of the state constitution prohibited simultaneous holding of two offices of honor or profit, subject to stated exceptions. The office compared the associate probate judge's statutory judicial powers with the requested commission retainer. It looked for an exercise of sovereign power and the usual indicia of an office before reaching its qualified conclusion.

Citations and references

• § 14-23-1030: associate probate judge appointment and authority described in the letter.
• Article XVII, Section 1A: the state constitutional dual-office provision discussed.

Official title

Concerning serving as Associate Probate Judge of Laurens County and whether one may receive a retainer agreement to be the attorney for the Commission of Public Works for the City of Laurens .

Requester

The Honorable Donald B. Hocker, Associate Probate Judge of Laurens County

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/september-15-1994-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/12/1994sept15hocker.pdf

Original opinion text

T. TRAVIS MEDLOCK
ATTORNEY GENERAL

REMBERT C. DENNIS BUilJ)fNG
POST OFACE BOX 11549
COLUMBIA, S.C. 292 11
TELEPHONE, 803·734-3970
FACSlMJLE, 803-253-6283

September 15, 1994

'·'

·. ,;:

The Honorable Donald B. Hocker
Associate Probate Judge of Laurens County
Post Office Box 972
Laurens, South Carolina 29360
Dear Judge Hocker:
By your letter of September 14, 1994, you have advised that you are presently serving as Associate Probate Judge of Laurens County. You have asked, in the context of dual office holding, whether you may be retained, by a retainer agreement, to be the attorney for the Commission of Public Works for the City of Laurens. Article XVII, Section 1A 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 a notary public. For this provision to be contravened, a person concurrently must hold two public 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 tenure, duties or salary, or require qualifications or an oath for the position. State v Crenshaw, 274 S.C. 475, 266 S.E.2d 61 (1980). Each probate judge has the power to appoint one or more associate judges of probate, who shall have the jurisdiction to hear and decide all matters assigned by the probate judge which are within the jurisdiction of the probate court. S.C. Code Ann.
§ 14-23-1030 (1993 Cum. Supp.); § 14-23-1150 (as to jurisdiction). Unquestionably, a probate judge or an associate probate judge would be considered an office holder due to the exercise of sovereign power inherent in the position.

The Honorable Donald B. Hocker
Page 2
September 15, 1994
The Commission of Public Works for the City of Laurens is a political subdivision with elected commissioners selling utility services to city residents and businesses, you have advised. You would be on retainer to represent and advise the Commission as to its business and conduct of its affairs. No actual exercise of sovereign powers appears to be involved, as you would not be prosecuting criminal cases or undertaking similar activities usually thought of as "exercising a portion of the sovereign power of the state." No statute or ordinance created the position of attorney; you would be an independent contractor rather than an employee of the Commission. No oath would be required. There is no specific tenure (i.e., term of years) for the position. As to the usual criteria found in an office, the position of attorney for the Commission lacks most, if not all, of those criteria. Thus we would conclude that the position of attorney for the Commission of Public Works for the City of Laurens would most probably not be an office. (

,

This Office is of the opinion that you could most probably serve concurrently as Associate Probate Judge of Laurens County and as the attorney for the Commission of Public Works for the City of Laurens without running afoul of the dual office holding proscriptions of the state Constitution. There may be other considerations, such as the Canons of Judicial Conduct. I understand that you are aware of these other considerations and are looking into them, as well. With kindest regards, I am Sincerely,

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Patricia D. Petway
Assistant Attorney General
PDP/an
REVIEWED AND APPROVED BY:

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Robert D. Cook
Executive Assistant for Opinions