STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL
April 21, 1972
Eldon Stoehr
Auditor General
Capitol Building
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 72-18
Incompatibility of public officers
a) School district business manager and municipal finance officer;
b) County justice of peace and county auditor;
c) Municipal treasurer and county treasurer.
Dear Mr. Stoehr:
You have requested my official opinion to determine the compatibility of the following offices:
I) School district business manager and municipal finance officer;
2) County justice of the peace and county auditor;
3) Municipal treasurer and county treasurer.
The determination of the compatibility of the same person holding two separate offices has been presented innumerable times to this office.
Tersely 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 incompatibility, 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 the cases you have mentioned, 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 offices incompatible?
2. Is one of the offices subordinate to and subject to its revisory powers?
3. Are the functions of the two offices inherently inconsistent or repugnant?
4. Does public policy declare it is improper for a person to discharge the duties of both offices at the same time?
If the answer to anyone of these four questions is in the affirmative, the offices are incompatible. If all four questions are answered in the negative, such are compatible offices which may be held by the same person at the same time.
It would unduly extend this opinion if I were to analyze each of the situations presented in light of these four criteria. However, you can make your own evaluation, following such rules as have been set out to test the validity of my conclusion.
SITUATION 1 - Subject to my concluding remarks as to the wisdom of certain officers holding two separate public positions, I am of the opinion that the school district business manager and the municipal finance officer are compatible offices.
SITUATION 2 - The office of county justice of the peace and county auditor are incompatible.
SITUATION 3 - I am of the opinion that the office of municipal treasurer and county treasurer are INCOMPATIBLE. While such positions were not involved in the opinions of this office reported in 1957-58 AGR 16 and 1959-60 AGR 84, the rationale thereof furnish the basis for finding incompatibility.
In a well reasoned opinion, 1945-46 AGR 80, my predecessor after finding the office of a constitutional county officer and that of the county veterans service officer were compatible, made the cogent observation, that notwithstanding the compatibility of offices, that other consideration should be considered before such employment. He pointed out that it is the obligation of every public officer to devote his time to his position, and if the burdens of the new position would be such that the public office would be neglected, or deputies or other clerical help would become necessary to maintain the efficiency of such office, the county official would not be justified in assuming any additional work.
This admonition should be observed by all persons employed at the expense of the public. If the duties of such dual office holding becomes such a burden that neither job can be performed properly, or efficiently, notwithstanding no incompatibility of office exists, such officer should resign from one of the offices, and devote himself to the proper execution of but a single office.
Respectfully submitted,
Gordon Mydland
Attorney General
