STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

December 27, 1973

John A. Shaeffer
States Attorney, Moody County
Flandreau, South Dakota 57028

OFFICIAL OPINION NO. 73-44

Town trustee cannot serve as employee also.

Dear Mr. Shaeffer:

We have received the request from you for an official opinion on the following factual situation:

The town of X is operated by a board of trustees in compliance with existing South Dakota law. One of the board members, Mr. A, is also a retired engineer. The board of trustees has appointed Mr. A. the job of superintendent of water and sewer works for the town. The town has recently installed a new water and sewer works, which has and will have much work by the superintendent of water and sewer works. The town would like to have some way to reimburse Mr. A. for his many hours of extra work. The town is willing to pass an ordinance which would make the job of superintendent of wate rand sewer works a salaried posijob of superintendent of water and sewer works a salaried posident of water and sewer works.

In connection with this factual situation, you have the following questions:

1. Whether or not a member of the board of trustees can be appointed as superintendent of water and sewer works, even if the job does not pay anything.

2. Whether or not the town can pass an ordinance making the job a salaried one and appoint a member of the board of trustees to that position.

SDCL 9-14-1 provides:

In cities there shall be appointed an auditor, treasurer, attorney, engineer, assessor, chief of police, policemen, and such other officers as may be provided for by ordinance. In towns there shall be appointed an auditor, treasurer, assessor, marshal and an overseer of highways. In cities and towns, the assessor shall be appointed not later than thirty days prior to the legal assessment date and he shall hold office for one year and until his successor is appointed and qualified. By resolution of the governing board of a municipality the board may choose to appoint a finance officer instead of an auditor or clerk and treasurer. The finance officer shall perform all of the duties of the auditor or clerk and treasurer as provided by law, except where duplicate records are required, only one set of records will be necessary. The finance officer shall be bonded in the same amount as is required by law for the treasurer.

That portion of the above quoted section applying; to towns may be construed using the maxim "'expressio unius est exclusio alterious," which means that where a statute enumerates the subject or things on which it is to operate, it is to be construed as excluding from its effect all those not expressly mentioned. 82 CJS Statute §333. Using that maxim, it is clear that the statute limits the number and type of appointive officers which towns are permitted to have. Accordingly, Mr. A may not perform these functions while holding down the office of superintenedent of water and sewer works, although he may perform the functions in his capacity as a municipal trustee.

We are unable to render an opinion to you as to whether or not the superintendent's job must be held by an officer or whether it may be held by an employee, as you have not furnished us with the duties that will be performed. If the job must be performed by an officer, the trustees will have to perform these functions. If, however, the duties may be delegated, the board may then hire an employee to perform the job. However, the board may not hire one of its own members.

The determination of the compatibility of the same person holding two separate positions has been presented innumerable times to this office. Generally stated, the rule of law to be applied in determining incompatibility may be stated as follows:

The State Constitution or statutes may declare certain offices to be incompatible. In the absence of constitutional or statutory incompaibility, the question then is, "are such offices inherently inconsistent or repugnant, or does there appear any consideration of public policy rendering it improper for a person to discharge the duties of both offices at the same time?"

As the court has stated in State v. Goff, 2 AM St. Rep. 921:

The test of incompatibility is the character and relation of the offices, as, where one is subordinate to the other, and subject in some degree to its revisory powers; or where the functions of the two offices are inherently inconsistent or repugnant. In such cases, it has been uniformly held that the same person cannot hold both offices.

Therefore, in considering any such case, the following criteria must be considered in determining whether or not such offices are compatible, and therefore may be held by the same person at the same time, or incompatible.

1. Does the Constitution or statutes make such positions in compatible?

2. Is one of the positions subordinate to and subject to its revisory powers?

3. Are the functions of the two positions inherently inconsistent or repugnant?

4. Does public policy declare it is improper for a person to discharge the duties of both positions at the same time?

In this particular case, it would be improper for a trustee to also serve as a paid employee of the town. The board defines the duties and sets the salaries for employees of the town. Such a situation may permit improprieties.

You have raised one other point, under the state's minimum wage law, no person may serve as an employee without pay. A person serving without pay must either be an officer or a volunteer.

Accordingly, the answer to both of your questions is, NO.

Respectfully submitted,

Kermit A. Sande
Attorney General