STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL
August 10, 1966
Ellen Bliss
Minnehaha County Representative
Sioux Falls, South Dakota 57101
OFFICIAL OPINION NO. 67-68 pg. 16
Legislative Members. Compatibility of a member of the Legislature and a County Welfare Director.
You have asked whether or not the positions of State Legislator and Director of a county welfare department are compatible. It is my opinion that they are. I come to this conclusion for the following reasons:
Article III, Section 8, of the State Constitution provides that no person shall hold any lucrative office under the state while being a member of the State Legislature. I do not feel that a holding of the above two positions violates this section. SDC 12.1602 allows counties to "employ" welfare workers. In view of this, it can be assumed that the director of the county welfare department is an employee and not an officer. Article III, Section 3, applies only to those persons holding a public office as distinguished from persons who are mere employees of the state. Consequently, this Article is not violated since the director is an employee and not an "officer." 1957-58 AGR 18.
It has further been held that Article III, Section 3, of the State Constitution applies only to state officers and does not refer to municipal or county officers. So, even if the position of director was that of an Officer, it would still be a county officer and thus would not violate Article III, Section 3. 1927-28 AGR 133.
Article III, Section 12 of the State Constitution establishes the limitations on the state legislators, but a careful reading of it shows that it is not applicable to the situation at hand.
It has been stated that the position of county commissioner and state legislator are not incompatible. From this it can be inferred that the position of director of county welfare and state legislator are also not incompatible, since the power of the director of county welfare is derived solely and directly from the county commissioners. 1953-54 AGR 284
