December 16, 1977

The Honorable Lorna B. Herseth 
Secretary of State 
State Capitol 
Pierre, South Dakota 57501

Official Opinion No. 77-99

Qualification of Ethics Commission members

Dear Mrs. Herseth:

You have requested an official opinion from this office based on the following statute: 
    
12-25A-2. No appointee to the commission may be an employee or an elected or an appointed official of the state or of a local government unit.  No registered lobbyist or elected or appointed official of a state political party central committee may be appointed as a member of the commission, except the appointee of the respective political party chairman.

Based upon the above statute, you have asked:

QUESTIONS: 

1.  Is a school district a local government unit? 
    
2.  If so, does this mean that anyone employed by the school district such as a teacher, secretary, janitor, bus driver, etc., would not be able to serve on the commission because they are employed by the school district? 
    
3.  Does this section mean that anyone who receives all or part of their salary from the state, county, municipality, township, school district, conservancy subdistrict, judicial system or power district would not be able to serve on the commission?

IN RE QUESTION NO. 1:

The answer to your first question is yes.  A school district is a local government unit.  The inhabitants of a particular place or area have been authorized by state statute to form a school district and fulfill the State's educational responsibility.  In other words, the elected school board is an elected governmental body with the distinct purpose of governing the local school district.

IN RE QUESTION NO. 2:

SDCL 12-25A-2 says that anyone employed by the school district or any elected or appointed official of the school district cannot serve on the State Ethics Commission.  The teacher, secretary, and janitor would all be employees.  The bus driver could be an employee or independent contractor depending on his or her manner of employment.  If the driver is employed by the school system to drive the school's bus, then he or she is an employee. However, if the bus service is let for bids and the drivers are hired by the contractor, the bus drivers and the contractor are not employees of the school district.

IN RE QUESTION NO. 3:

SDCL 12-25A-2 as set forth above is very plain and unambiguous and words must be understood in their ordinary sense.  Therefore, the answer to your third question is simply anyone elected to, appointed to or employed by the State, a county, municipality, township, school district, conservancy subdistrict, the judicial system or a power district cannot serve on the State Ethics Commission.

Respectfully submitted,

William J. Janklow
Attorney General

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