April 27, 1994

Paul Anderson, Mayor
City of Crooks
308 Western Drive
Crooks, SD 57020

OFFICIAL OPINION NO. 94-07

Concurrent Municipal Offices

Dear Mayor Anderson:

You have requested an official opinion from this Office concerning the following factual situation:

FACTS:

An alderman on the Crooks common council also sits as a member of the municipal planning and zoning commission. It is his intent to maintain his membership on both public bodies and to vote on the matters which come before each body. The common council hears appeals from the decisions of the planning and zoning commission.

Based upon these facts, you have asked the following question:

QUESTION:

May an alderman sit on both the common council and the municipal planning and zoning commission?

IN RE QUESTION:

The answer to your question is found primarily in SDCL 9-14-16, which provides in pertinent part:

No mayor, alderman, commissioner or trustee may hold any other office under the municipality while an incumbent of such office.

A planning and zoning commission is a creature of statute, with its members appointed by the mayor and confirmed by the governing body of the municipality. SDCL 11-6-4; SDCL 11-4-11. Based upon my examination of the powers granted to such commissions by the Legislature, I have no doubt that membership on the planning and zoning commission constitutes an "office under the municipality." The South Dakota Supreme Court has identified what constitutes a "public office" by use of the following standards:

It may be stated, as a general rule deducible from the cases discussing the question, that a position is a public office when it is created by law, with duties cast on the incumbent which involve an exercise of some portion of the sovereign power and in the performance of which the public is concerned, and which also are continuing in their nature and not occasional or intermittent; while a public employment, on the other hand, is a position which lacks one or more of the foregoing elements.

Griggs v. Harding County, 3 N.W.2d 485, 487 (S.D. 1942); Seymor v. Western Dakota Vocational Technical Institute, 419 N.W.2d 206 (S.D. 1988). Clearly, membership on a municipal planning and zoning commission satisfies all of the elements listed by the court and therefore is a public office.

In my opinion, SDCL 9-14-16 prohibits an alderman from serving as a member of the municipal planning and zoning commission. My answer to your question is "No."

MB:HHD:nan