April 21, 1982

Ms. Alice Kundert
Secretary of State
State Capitol
Pierre, South Dakota 57501

Official Opinion No. 82-23

Conflict of Interest and Compatibility of State Governmental Offices Held by Same Individual

Dear Ms. Kundert:

You have requested an official opinion from this office in regard to the following factual situations:

FACTS: 

1.  A person holding the office of an elected county commissioner is considering being a candidate for State Legislature.  If elected, his terms would overlap. 

2.  Another candidate for State Legislature is a member of the State Veterans Commission.

Based on the above situations, you have asked the following questions:

QUESTIONS: 

1.  Is there a conflict of interest if a person holds the offices of county commissioner and state legislator simultaneously? 

2.  Are the offices of state legislator and Veterans Commissioner compatible?

IN RE QUESTION NO. 1:

This question has been presented on several occasions in the past.  In 1935- 36 AGR 412, this office rendered the opinion that the offices of county commissioner and state legislator were compatible and that a county commissioner could retain his position on a county commission while serving in the Legislature.  In 1953-54 AGR 284, this office reiterated its adherence to the view that the offices of county commissioner and legislator were compatible.

While the above opinions would appear to dispose of your inquiry, I feel that reconsideration of the issues involved is necessary before giving my opinion.

Article IX, §  1, of the South Dakota Constitution provides, inter alia, that the 

Legislature shall have plenary powers to organize and classify units of local government, . . .

Pursuant to this constitutional grant, the Legislature has established a board of commissioners for each county, setting out their terms of office and compensation.   SDCL 7-8-1; 7-7-3.  The Legislature, therefore, has the authority to change the terms of office of the county commissioners, or their compensation by legislative enactment.  The Legislature also has determined the manner in which vacancies on the county commission will be filled, provided for special and quarterly meetings and delineated the general powers of the commissioners.  See, generally, Chapter 7-8 of the South Dakota Codified Laws, 1981 Revision.  The county commissioners are subject to the revisory power of the Legislature. See 1971-72 AGR 202.

Clearly, a county commissioner elected to the Legislature would, perhaps, have the opportunity to vote on matters affecting his commission tenure and compensation while serving in the Legislature.  This office has held in an earlier opinion, 1933-34 AGR 115, that a statute changing the salaries of county officers is not a special or private law in violation of constitutional provisions prohibiting the modification of county salaries by such laws.  Sound public policy would seem to dictate that legislators not serve on county commissions.

Therefore it is my opinion that a conflict of interest would exist if an individual held the office of county commissioner and state legislator simultaneously.

IN RE QUESTION NO. 2:

The Veterans Commission consists of six members, appointed by the Governor pursuant to SDCL 33-16-4.  The Commission is empowered by statute to exercise its authority in a variety of ways, among them quasi-judicial, quasi-legislative, and special budgetary functions.  Commission members receive an allowance for each day spent attending Commission meetings, and their travel and other necessary expenses are also paid.  SDCL 33-16-7.

The South Dakota Constitution Article III, §  3, setting out the qualifications for state legislative office, provides, inter alia, that: 

No judge or clerk of any court, . . . or persons holding any lucrative office under the United States, or of this state, . . . shall be a member of the Legislature:  provided, that appointments in the militia, the offices of notary public and justice of the peace shall not be considered lucrative.

It is my opinion that appointment to the Veterans Commission is not an appointment to the militia within the meaning of Article III, § 3 above.

The Commission was created by the Legislature, which delegated part of the governmental sovereignty of the State in empowering the Commission to act in a quasi-legislative and quasi-judicial manner. See SDCL 33-16-4.1.  When the Commission acts within its appropriate governmental area, it is exercising that portion of state sovereignty delegated to it.  The Commission's acts are those of the State and its members are holders of state offices.

A lucrative office would be one in which the holder of such office would be compensated for performing the duties attendant upon the office.  Wills v. Potts, 377 S.W.2d 622 (Tex. 1964); 1927-28 AGR 240.  The amount of such compensation is immaterial.

A member of the Veterans Commission holds a lucrative office within the meaning of Article III, §  3 of the South Dakota Constitution.  Therefore, it is my opinion that the offices of state legislator and Veterans Commissioner are incompatible and that an individual may not serve as a state legislator and Veterans Commissioner at the same time.

Respectfully submitted,

Mark V. Meierhenry
Attorney General