I am a sitting state legislator and I have been offered the job of director of my county's welfare department. Can I hold both positions at the same time, or does one of South Dakota's constitutional provisions prohibit it?
Plain-English summary
The South Dakota Constitution has several provisions that limit when one person can hold two government positions at the same time. The most familiar is Article III, Section 8, which prohibits a person from holding "any lucrative office under the state" while a member of the State Legislature. Article III, Section 3 contains another restriction on dual office holding. Article III, Section 12 adds further limits.
A sitting state legislator wanted to know whether he could take a job as director of his county's welfare department without running afoul of any of these provisions. The AG concluded that no constitutional restriction was triggered.
The key was distinguishing between an "office" and an "employment." A constitutional provision that restricts dual office holding applies only to actual public offices, not to all paid positions in government. An employee is not an officer.
SDC 12.1602 authorized counties to "employ" welfare workers. The legislature's word choice was deliberate: welfare workers were employees of the county, not officers of the county. Drawing on a 1957-58 AGR 18 opinion that addressed the same distinction, the AG concluded that the county welfare director was an employee, not an officer.
Even if the welfare director were treated as an officer rather than an employee, the AG had a second line of defense. Article III, Section 3 applies only to state officers, not to municipal or county officers. The 1927-28 AGR 133 opinion had established that point. So even if the welfare director was an officer, he was a county officer, and Article III, Section 3 did not reach county offices.
Article III, Section 8's "lucrative office under the state" likewise did not reach county positions. The text was specific to state offices, not local government positions.
Article III, Section 12 did not apply on a careful reading of its language.
The AG then borrowed analogically from a 1953-54 AGR 284 opinion that had held the positions of county commissioner and state legislator were not incompatible. If county commissioner (an elected county office) was compatible with the legislature, then county welfare director (an employed county position with authority derived from the commissioners) was even more clearly compatible. The welfare director's power was "solely and directly" from the county commissioners, so the analysis followed a fortiori.
The bottom line: a state legislator could hold the county welfare director position without violating any provision of the South Dakota Constitution.
Currency note
This opinion was issued in 1968. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. South Dakota's constitutional provisions on dual office holding remain in place (with some renumbering across constitutional amendments since 1968). The county welfare system has been substantially restructured, with much of it absorbed into state Department of Social Services administration. Anyone considering a dual-position arrangement today should consult current constitutional and statutory provisions and the South Dakota Government Operations and Audit Committee's published guidance.
What the opinion meant at the time
For state legislators considering county jobs, the opinion provided a clean answer: county employee positions are not "lucrative offices under the state" and do not trigger Article III, Section 8. The legislator could take the welfare director job (and similar county employee positions) without resigning from the legislature.
For county commissioners hiring welfare directors, the opinion meant they did not need to exclude sitting legislators from the candidate pool. A legislator with the right qualifications could be hired without legal trouble. Whether to hire a legislator was a political and practical question, not a legal one.
For voters, the opinion did not change the political calculus around legislator side jobs. Voters could still evaluate whether a legislator's day job created conflicts of interest or distracted from legislative duties. The opinion just said the Constitution did not forbid the arrangement.
For the broader civil service of South Dakota, the opinion supported a flexible reading of the dual office prohibitions that allowed government to draw on talent across positions. Strict readings of the prohibitions would have artificially narrowed the pool of legislators (and other officials) by excluding anyone who held a paid government job.
Common questions
Q: What is the difference between an officer and an employee for these purposes?
A: Generally, an officer holds a position created by law with defined duties, often elected or appointed by a designated authority, often with a fixed term or oath of office. An employee is hired and supervised by an officer or agency, performs work under contract, and can be hired and fired without the formalities of officer appointment. The legislature's use of "employ" in SDC 12.1602 was treated as an indicator that welfare workers were employees, not officers.
Q: What about ethical conflicts of interest?
A: The opinion addressed only the constitutional dual-office question. Separate conflict-of-interest statutes and ethics rules could still apply. A legislator who was also a county welfare director would have needed to recuse himself from legislative matters where he had a personal conflict (e.g., legislation directly affecting his county's welfare department).
Q: Could a state legislator hold a state office (not just a county job)?
A: Article III, Section 8 specifically prohibited a legislator from holding a "lucrative office under the state." A state office (e.g., state agency head, Secretary of State staff position with officer status) would have been blocked. The 1968 opinion did not address state offices because the welfare director was a county position.
Q: What about the legislator's salary from each position?
A: The opinion did not address compensation. The legislator presumably received a legislative salary and a welfare director salary as separate compensation streams. Both were lawful.
Q: Could the same reasoning apply to municipal employee positions?
A: Yes. The AG's logic (Article III, Section 3 does not reach county or municipal offices; employees are not officers) would apply equally to municipal employee positions. A legislator who was also a city employee would not have triggered the constitutional provisions discussed in the opinion.
Q: What if the county welfare director's job required attendance at meetings during legislative sessions?
A: That would be a practical scheduling conflict, not a constitutional one. The opinion addressed only legal compatibility, not whether the person could realistically perform both jobs. Most legislatures expect members to manage outside employment around session schedules.
Background and statutory framework
South Dakota's constitutional dual-office provisions were inherited from territorial and early statehood concerns about concentration of power and the need to keep legislative judgment independent of executive interests. Article III, Section 8's "lucrative office under the state" clause was the most operative of the three provisions for legislators considering side jobs.
The judicial and AG-opinion gloss on these provisions had drawn careful distinctions over the decades:
- "Office" versus "employment" — only the former triggered the prohibitions.
- "State" versus "county" or "municipal" — Article III, Section 3 applied only to state offices.
- "Lucrative" versus "non-lucrative" — Article III, Section 8 applied only to compensated positions, but the dollar threshold for "lucrative" was not zero.
The 1968 opinion drew on three prior AG opinions:
- 1957-58 AGR 18 (state employees versus officers; the distinction matters for dual-office analysis)
- 1927-28 AGR 133 (Article III, Section 3 does not reach county or municipal offices)
- 1953-54 AGR 284 (county commissioner and state legislator are not incompatible)
By stringing together these three prior opinions, the AG built a clean case that the welfare director position was outside the reach of all the constitutional dual-office provisions.
The county welfare department itself was a creature of county statute (SDC 12.1602 and surrounding provisions). It administered state and federally funded public assistance programs at the county level. The director was responsible for case management, eligibility determinations, and administration of the department's office and staff. The director served at the pleasure of the county commissioners, who hired and could discharge him.
Citations and references
Constitutional provisions:
- S.D. Const. art. III, § 3 (limits on dual office holding by state officers)
- S.D. Const. art. III, § 8 (no member of legislature may hold lucrative office under the state)
- S.D. Const. art. III, § 12 (limits on legislators)
Statutes:
- SDC 12.1602 (county authority to employ welfare workers)
Prior AG opinions:
- 1957-58 AGR 18 (officer vs. employee distinction for dual office analysis)
- 1927-28 AGR 133 (Article III, Section 3 reaches only state officers, not county or municipal)
- 1953-54 AGR 284 (county commissioner and state legislator positions not incompatible)
Source
Original opinion text
Legislative Members. Compatibility of a member of the Legislature and a County Welfare Director.
You have asked whether or not the positions of State Legislator and Director of a county welfare department are compatible. It is my opinion that they are. I come to this conclusion for the following reasons:
Article III, Section 8, of the State Constitution provides that no person shall hold any lucrative office under the state while being a member of the State Legislature. I do not feel that a holding of the above two positions violates this section. SDC 12.1602 allows counties to "employ" welfare workers. In view of this, it can be assumed that the director of the county welfare department is an employee and not an officer. Article III, Section 3, applies only to those persons holding a public office as distinguished from persons who are mere employees of the state. Consequently, this Article is not violated since the director is an employee and not an "officer." 1957-58 AGR 18.
It has further been held that Article III, Section 3, of the State Constitution applies only to state officers and does not refer to municipal or county officers. So, even if the position of director was that of an Officer, it would still be a county officer and thus would not violate Article III, Section 3. 1927-28 AGR 133.
Article III, Section 12 of the State Constitution establishes the limitations on the state legislators, but a careful reading of it shows that it is not applicable to the situation at hand.
It has been stated that the position of county commissioner and state legislator are not incompatible. From this it can be inferred that the position of director of county welfare and state legislator are also not incompatible, since the power of the director of county welfare is derived solely and directly from the county commissioners. 1953-54 AGR 284