June 3, 1988
Mr. Dennis D. Evenson
Deuel County State's Attorney
Clear Lake, SD 57226
Official Opinion No. 88-24
Compatibility of County Commissioner and City Councilman
Dear Mr. Evenson:
You have requested an official opinion relating to the following factual situation:
FACTS:
A citizen of Clear Lake, South Dakota has recently filed a petition for a position on the County Commission of Deuel County. Prior to filing the petition for County Commissioner, the citizen had filed a petition for a position on the City Council of Clear Lake, a city within Deuel County. This citizen has now been elected to the City Council for the City of Clear Lake. The election is pending for the position on the County Commission.
Based upon this factual situation, you have asked the following questions:
QUESTION:
1. Can a citizen continue to run for the position on the County Commission when he has been elected to serve on the City Council within the same county?
2. Are the two positions compatible to the extent that the same person can serve as a City Councilman and a County Commissioner without involving a conflict of interest?
The questions you raise were addressed on page 374 of the 1920 Attorney General Report; page 278 of the 1930 Attorney General Report and page 37 of the 1950 Attorney General Report. These opinions have consistently held that these offices are compatible and, as a result, may be held by the same person simultaneously.
SDCL § 9-14-16 is the controlling statute regarding restrictions on the number and types of other offices that a city commissioner can hold. Section 9-14-16 provides in pertinent part:
No mayor, alderman, commissioner or trustee may hold any other office under the municipality while an incumbent of such office....
Since this statute does not disallow dual membership on the city council and county commission, such membership cannot be deemed to be statutorily prohibited thereby.
Furthermore, the legislature has established a board of commissioners for each county and thereby has set out their terms of office and compensation. SDCL § 7-8-1; § 7-7-3. A review of the statutes dealing with county commissioners also reveals that there is no statutory prohibition forbidding county commissioners from serving on city councils within their county.
This office has held that dual membership on the board of county commissioners and the state legislature involves a conflict of interest to the extent that the positions are incompatible. See, Attorney General Official Opinion # 82-23. Your questions, however, are distinguishable from the aforementioned Official Opinion in that city councilmen are not affected by county commissioners to the same extent that county commissioners are affected by the actions of state legislators. Municipal corporations are separate and distinct legal entities from county government. See, In re Knight, 55 Cal.App. 511, 203 p. 777 (1921); Murray v. City of Roanoke, 192 Va. 321, 64 S.E.2d 804 (1951); See also, 62 C.J.S. Municipal Corporations § 114.
The aforementioned rationale corresponds with the definition of incompatibility as set forth in the case of Haymaker v. State, 163 P. 248 (New Mexico 1917). It provides therein: "In legal contemplation, incompatibility between two offices is an inconsistency between the functions of the two. The offices must be subordinate to the other and they must per se have the right to interfere with the other before they can be incompatible". Haymaker, 163 P. at 249. The offices involved herein are not subordinate to one another and do not have the right to interfere with one another.
If a situation were to arise that may arguably involve a potential conflict of interest, the individual could choose to recuse himself/herself for that particular determination. Such action would also be consistent with the Opinion rendered in the 1952 Attorney General Report at page 120.
As a result of the foregoing analysis, it is my opinion that a citizen may continue to run for the county commission when he is currently a member of city council within the same county. Consequently, the two positions are compatible and there is no statutory prohibition barring dual membership and the answer to your second question is also "yes".
Respectfully submitted,
Roger A. Tellinghuisen
Attorney General
