Was the Colleton County Attorney a public office under South Carolina’s dual-office-holding rule?

Official title

Regarding whether the position of Colleton County Attorney is an office for dual office holding purposes.

Requester

Sean P. Thornton, Esq.

Plain-English summary

The Attorney General was asked whether serving as Colleton County Attorney counted as holding a public office under South Carolina’s ban on holding two offices at once. It concluded that this county attorney position was a contractual relationship, not a public office for that purpose.

The office looked at the county ordinance rather than the title alone. The attorney advised the council, prepared its legal documents and represented the county in civil matters. The ordinance said the council would contract with the attorney, set compensation and retain the attorney at its pleasure. The opinion found no independent exercise of sovereign power in those duties.

Currency note

This opinion was issued in 2014. 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 AG count Colleton County Attorney as a second public office? A: No. It concluded this position was contractual and did not constitute an office for the dual-office-holding rule.

Q: Why did the county attorney’s job not count as an office in this opinion? A: The opinion said the listed duties involved advising and representing the council rather than independently exercising sovereign power. It also relied on the ordinance’s contractual terms.

Q: Did the opinion decide the status of every county attorney? A: It analyzed Colleton County’s ordinance and the duties of that position. Its conclusion was tied to that contractual relationship.

Background and statutory framework

The office quoted the state constitutional dual-office-holding clause and a state court’s definition of public office, then examined Colleton County’s attorney ordinance. It distinguished an office holder from an employee or contractor performing assigned legal work for the council. The original PDF is linked below.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/september-19-2014/
• Original PDF: https://www.scag.gov/wp-content/uploads/2014/09/Thornton-S.-OS-9809-09-19-2014-00446562xD2C78.pdf

Original opinion text

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Alan Wilson
ATTORNEY GENER-XL

September 19, 2014

Sean P. Thornton, Esq.
PO Box 1 880
Bluffton, SC 29910
Dear Mr. Thornton:
This Office received your request for an opinion as to whether the position of Colleton County Attorney is an office for dual office holding purposes. LAW/ANALYSIS: The South Carolina Constitution provides that "no person may hold two offices of honor or profit at the

same time. This limitation does not apply to officers in the militia, notaries public, members of lawfully and regularly organized fire departments, constables, or delegates to a constitutional convention."

S.C.

Const, an. XVII § I A.

The South Carolina Supreme 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).

Seizars-Andrews v. Judicial Merit Selection Commission. 387 S.C. 109. 691 S.E.2d 453 (2010). "Other

relevant considerations [as to whether a position is a public office] 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.'"

See Oil S.C. Attv. Gen.. June 17, 2013 (2013 WL

3243063) (quoting Slate v. Crenshaw. 274 S.C. 475, 478, 266 S.E.2d 61.62 (1980)).

Rewbhrt C. Dennis Building

. Post Office Box 11549 . Colcmhia, SC 292 1 1 - 1 349 . Telephone 803-734-3970

• Facsimile S03-253-6283

Sean P. Thornton, Esq.
Page 2
September 19, 2014

Whether a county attorney holds an office is not clear cut. It often depends on analyzing certain criteria. In a prior opinion, we elucidated: Whether or not a county attorney is an office would depend upon how

the office itself is created. If the position is created by state statute or county ordinance and the duties of the position make it an 'office' rather

than mere employment, it would be violative of the dual office
prohibitions of the State Constitution for one individual to hold the office of county attorney and another office. Op. S.C. Attv. Gen.. July 13, 1981 (1981 WL 157862) (quoting Opinion to James I. Redfeam, Esquire, dated August 28, 1974).

The position of Colleton County Attorney is created by ordinance.

According to your letter, Colleton

County Code of Ordinances § 2.30.020 states the following:
County Attorney.

The council shall designate and contract an attorney

who is not a member of the council to serve as the county attorney. He shall perform such duties as are assigned to him from time to time by

council. He shall prepare all deeds, contracts, ordinances and other legal documents necessary to assist council in performing its functions.

He

shall attend all council meetings and advise council, when required, of

matters and things pertaining to the legality of proceedings before

council and its actions thereon.

He shall participate in any litigation

involving the county and shall carry out any assignments delegated to him by council.

The county attorney shall serve at the pleasure of the

council, and his compensation and contractual relationship shall be set by council. Since the position is created by county ordinance, we must review the duties and other particulars to

determine if the Colleton County Attorney holds an office or is an independent contractor or employee.1 The duties prescribed by the ordinance do not appear to involve an exercise of the sovereign power. The Colleton County Attorney is merely performing duties assigned to him by the County Council; advising the Council; preparing legal documents for the Council; and representing the County in civil matters. The

County Attorney is not independently making decisions and the County Attorney and the County Council appear to have an attorney-client relationship. Additionally, the terms of the ordinance lead to the conclusion that the Colleton County Attorney is an independent contractor or employee, rather than an office holder.

The ordinance clearly states that the

1 ". . . 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 public work or business, is a mere employee." Op. S.C. Atty. Gen-, March 6, 1980 (1980 WL 121076) (quoting Sanders v. Belue. 78 S.C. 171, 174, 58 S.E. 762, 763 (1907).

Sean P. Thornton, Esq.
Page 3
September 19, 2014

County Council shall "contract" with an attorney and set up the "contractual relationship" between the County and the County Attorney. Since the County Attorney is to "serve at the pleasure of the council," the ordinance does not set a term of office for the position. The ordinance does not provide the salary amount of the position since it states that compensation "shall be set by council." The Colleton County Attorney is not required to take an oath

by the ordinance. Furthermore, the position is part-time.
Because the relationship between the Colleton County Attorney and the County Council is a contractual one, we do not believe that the Colleton County Attorney is an office for dual office holding purposes. CONCLUSION In conclusion, this Office believes that the Colleton County Attorney is not an office for dual office

holding purposes since the relationship between the Colleton County Attorney and the County Council is a contractual one.

Sincerely,

Elinor V. Lister

Assistant Attorney General

REVIEWED AND APPROVED BY:

Robert D. Cook

Solicitor General

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