October 25, 1988

Terry C. Anderson 
Director 
South Dakota Legislative Research Council 
State Capitol 
Pierre, SD 57501

Official Opinion No. 88-51

Appointment of a State Legislator to the State Investment Council

Dear Director Anderson:

You have requested an official opinion from this office in regard to the following factual situation.

FACTS: 

The Executive Board of the Legislative Research Council, pursuant to SDCL 4-5-13, appoints five of the seven voting members of the State Investment Council.

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

QUESTION: 

Can the Executive Board of the Legislative Research Council appoint a legislator to the State Investment Council?

IN RE QUESTION:

It is my opinion that the Executive Board of the Legislative Research Council is constitutionally prohibited from appointing a State Legislator to the Investment Council. The Executive Board of the Legislative Research Council is authorized under SDCL 4-5-13 to appoint five of the seven voting members of the State Investment Council. In addition the Executive Board has the power to appoint persons holding public office, appointive or elective. The South Dakota  Constitution, however, prohibits members of the Legislature from holding more than one office. Article III, Section 12 of the South Dakota Constitution provides: 

No member of the Legislature shall, during the term for which he was elected, be appointed or elected to any civil office in the state which shall have been created, or the emoluments of which shall have been increased during the term for which he was elected, nor shall any member receive any civil appointment from the Governor, the Governor and senate, or from the Legislature during the term for which he shall have been elected, and all such appointments and all votes given for any such members for any such office or appointment shall be void; nor shall any member of the Legislature during the term for which he shall have been elected, or within one year thereafter, be interested, directly or indirectly, in any contract with the state or any county thereof, authorized by any law passed during the term for which he shall have been elected.

The explicit language from this constitutional provision prohibits appointment of a member of the Legislature to any state appointed office. The appointment powers of the Executive Board of the Legislative Research Council to the State Investment Council fall within this constitutional prohibition.

Respectfully submitted, 

Roger A. Tellinghuisen
Attorney General