March 10, 1980

Mr. Jon Mattson 
Attorney 
Lead-Deadwood Sanitary District No. 1 
Post Office Box 392 
Deadwood, South Dakota 57732

Official Opinion No. 80-17

Can a Member of a Sanitary District Board of Trustees also Serve as Clerk?

Dear Mr. Mattson:

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

FACTS: 

The Lead-Deadwood Sanitary District No. 1 has hired a clerk in the past whose sole duty has been to take minutes of District meetings and keep official records of the District.  This clerk receives compensation based upon an hourly rate.  This clerk is now considering running for the office of trustee and wonders if she can hold both positions.  She further wonders whether it would make any difference if she accepted compensation for services as clerk.

Based upon the above facts, you ask the following question:

QUESTION: 

Is it your opinion that SDCL 34A-5-28 would prohibit a trustee from serving as clerk?

SDCL 34A-5-28 provides: 

No trustee or employee of a sanitary district shall be directly or indirectly interested in any contract, work, or business of the district, or the sale of any article, the expense, price or cost of which is paid by such district, nor in the purchase of any real, personal or other property  belonging to the district, or which shall be sold for taxes or assessments, or by virtue of legal process at the suit of said district.

It is my opinion that SDCL 34A-5-28 would prohibit trustees from hiring one of their members as an employee as the hiring would give the hired trustee a direct work or business interest.  Further, the two positions are not compatible in that one is subservient and subject to the revisory powers of the other.  1973-74 A.G.R. 239.

Respectfully submitted,

Mark V. Meierhenry
Attorney General