By Paul Gable
Robert Shelley, currently a candidate in the special election Republican primary for Horry County Council District 7, may have problems with both state and federal law should he attempt to continue to work for the SC Department of Motor Vehicles if he is elected to the District 7 seat on county council.
According to a Facebook post announcing his candidacy for the open District 7 county council seat, Shelley described his current job which may cause problems for Shelley assuming his seat as a county council member should he win the election.
“In the fall of 2007, I was offered a position with the State of South Carolina Department of Motor Vehicles, Dealer Licensing & Audit Unit as a Dealer Agent. I currently hold the position of Lead Investigator where I supervise the newly formed state-wide investigative unit,” Shelley said.
In a separate Facebook post, Shelley definitively stated he will continue working for the state agency, if elected.
“I have over 35 years of experience working in City, County & State Government and I plan to continue working for the State of South Carolina if I’m elected,” Shelley said on his Facebook page.
There are three potentially significant legal problems for Shelley if he wins the election and attempts to remain in his state job.
The first is the federal Hatch Act. Although it has been amended several times since it was first passed by Congress in 1939, the act still makes it illegal to run for partisan political office for those who hold certain positions within state government agencies that receive funding through federal grants or loans.
According to a spokesman for the SC Department of Motor Vehicles, that agency definitely receives funding from the federal government as part of its budget.
Shelley’s state position may or may not be one of those affected by the Hatch Act, but it certainly should be something he addresses with the voting public.
The next potential problem is with a state law mirroring the Hatch Act for state employees.
This type of state law is often referred to as a mini Hatch Act. In effect, it does not definitively bar a state employee from running for a partisan elective office, but it does require the permission of the potential candidate’s supervisor to do so.
As recently as last fall, the South Carolina law mirroring the Hatch Act denied a candidacy for a special election for Horry County Council District 3. A person working for the state agency that regulates setup of mobile homes throughout the state wanted to run for the open council seat.
According to sources familiar with the issue, the potential candidate sought permission for his candidacy from his state agency supervisor. The permission was denied ending the potential candidacy.
With Shelley in a similar type of regulatory position with the SC Department of Motor Vehicles, the obvious question is has he obtained permission from his supervisor to run for office?
Finally, and possibly most important, the South Carolina Constitution generally prohibits an individual from holding two office of honor or profit at the same time. This is referred to as dual office holding.
Addressing dual office holding, Article VI, Section 3 of the South Carolina Constitution states, “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.”
A 2002 landmark ruling by the SC Supreme Court in the case of Richardson v. Town of Mt. Pleasant found the positions of municipal police officer and county councilman were both positions of honor or profit, neither exempt from the state’s dual office holding prohibitions.
I am no attorney, but it certainly appears to this layman that the same office holding prohibition would apply to a “Lead Investigator” of a “newly formed statewide investigative unit” of the SC Department of Motor Vehicles.
Additionally, he may be hampered by provisions of the Hatch Act and the SC mirroring law.
There is a simple solution for Shelley – quit your state job.
If you are not willing to do this, make sure of your legal right to hold office as a county councilman, if elected, while remaining in your state position of lead investigator, if that is your intention.