April 8, 1985

Mr. Maurice C. Christiansen 
Auditor General 
435 South Chapelle 
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 85-16

Status of assistant director of disaster service district

Dear Mr. Christiansen:

You have requested an official opinion based on the following factual situation:

FACTS: 

County A belongs to a four county local emergency and disaster district pursuant to SDCL 33-15-33.  Each county appoints one member of the county commission to the advisory board. 

In September 1984 County A approved funding for its share of the district budget, which included the new position of assistant director. 

In January 1985 the advisory board of the district took applications for the assistant director position and held interviews.  On February 4, 1985, a commissioner from County A was appointed to the position.  The commissioner resigned his commission position from County A effective March 1, 1985, the starting date for the assistant director position.

Based on the above facts you have asked the following question:

QUESTION: 

Can a county commissioner of one of the member counties be appointed to the new position of assistant director of the emergency and disaster service district?

You have referred to 1931-32 AGR 617 which extends the prohibition contained in Article III, Section 11 of the South Dakota Constitution.  It extends to  other civil offices where a member of the governing body seeks to be employed in the office he helped create.  Specifically, the opinion states: 

In the case presented by you, we have an officer voting upon the question of his own prospective salary.  Having voted upon the question of the number of deputies to be employed and on the question of the fixing of the salary of deputies, he should not receive any such salary during the term for which he holds an office in the body which fixed the salary.

I concur with that opinion so far as it relates to public offices, as opposed to public employment.  As noted in 118 ALR 182, this prohibition found in our Constitution and in the laws and constitutions of many other states and the federal government does not apply to mere employment in positions.  It also contemplates a public office which has been distinguished from a mere employment as involving an exercise of part of the sovereign powers of the state and as being created by law.

Our Supreme Court in the case of Griggs v. Harding County, 68 S.D. 429, 3 N.W.2d 485 (1942) states: 

A public office as distinguished from mere employment involves a delegation to the person filling the office of some part of the functions of government to be exercised by him for the benefit of the public.

As this office previously held in 1957-58 AGR 18, this provision of the Constitution applies only to persons holding a public office as distinguished  from persons who are mere employees of the statute.  That opinion also cites the Michigan case of Dosker v. Andrus, 70 N.W.2d 765 (S.D. 1955). Paraphrasing the indicia laid down in that case for determining what is a public office we find that (1) it must be created by a governing legislative body, (2) it must have a delegation of a portion of the sovereign power of the government, (3) the powers and duties must be defined directly and impliedly through the act of the governing body, (4) the duties must be performed independently and without control of a superior power other than the law unless they be those of an inferior or subordinate office created or authorized by the legislature and placed under the general control of a superior officer or body, and (5) it must have some permanency and continuity and not be only temporary or occasional.

In the factual situation you have presented, this assistant director of an emergency and disaster service district formed pursuant to SDCL 33-15-33 is provided for by §  33-15-27. That section, so far as applicable here, states, the director: 

shall have direct responsibility for the development and implementation of emergency and disaster plans, organization, administration and operation of the local organization for emergency and disaster service, subject to the direction and control of the executive officer or governing body.

IN RE QUESTION NO. 1:

In 1959-60 AGR 73 this office, in determining that the office of county commissioner and civil defense director are incompatible, stated 'the general test of incompatability is whether one office is subordinate to the other, or whether one has supervision over the other.'  We determined that the civil defense director, a position comparable to the emergency and disaster district director, being appointed by and subject to the direction and control of the county commission makes the jobs of county commissioner and civil defense director incompatible.  It is clear, therefore, that the supervisory characteristics of the board of county commissioners, or in this case the advisory board of the emergency and disaster service district, which itself is vested with the sovereignty of the counties, is the superior body and that the persons appointed by them are not officers in true legal sense of the word. They are employees and the criteria set forth in Andrus is not fulfilled.

It is my opinion, therefore, that the rule laid down in Official Opinions 1931-32 AGR 617 is applicable only to public offices and does not apply to the employment in question. The answer to your question is yes, the former county commissioner is eligible to hold the job of assistant director of emergency and disaster service district.

Respectfully submitted,

Mark V. Meierhenry
Attorney General