July 13, 1982

Mr. A. P. Fuller 
Attorney at Law 
P.O. Box 898 
Lead, South Dakota 57754

Official Opinion No. 82-35

Conflicts with School Board Membership

Dear Mr. Fuller:

On behalf of the Lead-Deadwood School District No. 40-1 you have requested my opinion regarding the following questions:

QUESTIONS: 

1.  May a person employed by the Lead-Deadwood School District No. 40-1 sit as a member of the Board of Education? 

2.  Do the statutes of the State of South Dakota permit a school board member to bring a lawsuit against the School District and the Board of Education? 

3.  May an administrator, such as a Building Principal, serve as a member of the Board of Education?

IN RE QUESTION NO. 1:

SDCL 13-43-1 provides: 

No person employed to teach or to draw public money as a teacher may serve as a board member in the same school district.

In addition, SDCL 6-1-1 provides: 

It shall be unlawful for any officer of a county, municipality, township or school district, who has been elected or appointed, to be interested, either by himself or agent, in any contract entered into by said county, municipality, township or school district, either for labor or services to be rendered, or for the purchase of commodities, materials, supplies, or  equipment of any kind, the expense, price or consideration of which is paid from public municipality, township or school district, or in the purchase of any real or personal property belonging to the county, municipality, township or school district or which shall be sold for taxes or assessments or by virtue of legal process at the suit of such county, municipality, township or school district.  Such contract shall be null and void from the beginning.

Based upon the statutes set out above it would be my opinion that any person employed by the school district may not sit as a member of the school board. Of course, the phrase 'person employed by' should not be construed to include contracts between school districts and school board members that fall within the exceptions set out in SDCL 6-1-2.  Accordingly, my answer to Question No. 1 is No.

IN RE QUESTION NO. 2:

It is my understanding that there is presently litigation pending in the Lead-Deadwood School District involving a person who has been elected to a school board.  It is not the policy of this office to answer questions involving pending lawsuits.  Accordingly, I decline to render an opinion concerning Question No. 2.

IN RE QUESTION NO. 3:

SDCL 13-7-3 provides: 

No elective county, municipal or state officer or the holder of any other office, the duties of which are incompatible or inconsistent with the duties of a school board member, shall be eligible for such membership.

This statute taken together with SDCL 13-43-1 and 6-1-1 leads me to the conclusion that administrators in a school district may not serve as school board members within the employing district.  My reasoning is based upon the following ideas.  First, public school administrators are officers of a school district and as such would be barred from holding office within the employing district by SDCL 13-7-3.  Second, school administrators are required to have valid teaching certificates and must be seen as directly involved in the teaching of children--see also SDCL 13-43-12.  Accordingly, a natural interpretation of SDCL 13-43-1 would lead to the conclusion that public school administrators may not sit on their employing board.

My answer to Question No. 3 is No.

Respectfully submitted,

Mark V. Meierhenry
Attorney General