August 15, 1994

Ronald Buskerud, Deputy States Attorney
Pennington County
300 Kansas City Street
Rapid City, SD 57701

OFFICIAL OPINION NO. 94-11

Compatibility of simultaneous holding of offices of state representative and county commissioner

Dear Mr. Buskerud:

You have requested an official opinion of the Office of Attorney General regarding the following facts:

FACTS:

A county commissioner whose term expires December 31, 1994, was recently appointed to fill a vacancy in the State Legislature. He attended the Special Session of the Legislature in July, but presumably will not be involved in any further state legislative activity until after the expiration of his term as county commissioner. SDCL 7-7-5 was recently amended to allow county commissioners to set their own salary without limitation by the Legislature. Evidently in the past there have been situations where a person served as county commissioner and state legislator simultaneously after AG Opinion 82-23.

Based upon the above, you have asked the following question:

QUESTION:

Under the above factual situation, is there a conflict of interest in serving as county commissioner and as an appointed state legislator at the same time?

IN RE QUESTION:

As you have noted in your opinion request, this question has been presented several times previously. The question was most recently answered at AGR 82-23. There, Attorney General Meierhenry concluded:

[T]hat a conflict of interest would exist if an individual held the office of county commissioner and state legislator simultaneously.

Attorney General Meierhenry reasoned that because South Dakota Constitution Art. IX, <185> 1 grants the Legislature plenary power over units of local government, pursuant to constitutional authority, the Legislature establishes the existence of the boards of county commissioners and fixes their terms and their compensation. The fact that SDCL 7-7-5 now allows the county commissioners to fix their own compensation does not alter the result. The State Legislature still exercises the plenary authority over counties; so long as they have the power to do so, the conflict remains.

Therefore, it is my opinion that the offices of state representative and county commissioner are incompatible and a conflict of interest exists if any individual holds both offices simultaneously.

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