May a Crooks city alderman simultaneously serve on the city common council and on the municipal planning and zoning commission? The common council hears appeals from planning and zoning decisions, so the alderman would in effect be voting on appeals from his own commission decisions.
Plain-English summary
The City of Crooks (a small Minnehaha County municipality north of Sioux Falls) had a structural problem. An alderman on the common council also held a seat on the city planning and zoning commission. The two bodies had an institutional relationship: the planning and zoning commission made initial land-use decisions, and the common council heard appeals from those decisions. The alderman was thus voting on appeals from his own commission decisions, a textbook conflict-of-interest setup.
Mayor Anderson asked AG Mark Barnett the underlying legal question: does South Dakota law allow this dual service in the first place?
Barnett's answer was a clean "no." He started with SDCL 9-14-16, the municipal dual-office statute: "No mayor, alderman, commissioner or trustee may hold any other office under the municipality while an incumbent of such office." The text is broad. It does not require a finding of conflict, financial interest, or actual impropriety; it imposes a categorical bar.
The key analytical move was whether membership on a municipal planning and zoning commission is an "office under the municipality." Barnett applied the South Dakota Supreme Court's test from Griggs v. Harding County and Seymor v. Western Dakota Vocational Technical Institute:
[A] position is a public office when it is created by law, with duties cast on the incumbent which involve an exercise of some portion of the sovereign power and in the performance of which the public is concerned, and which also are continuing in their nature and not occasional or intermittent; while a public employment, on the other hand, is a position which lacks one or more of the foregoing elements.
Planning commission membership passed all three prongs:
-
Created by law. SDCL 11-6-4 creates the municipal planning and zoning commission, and SDCL 11-4-11 specifies the appointment process (mayoral appointment, council confirmation).
-
Exercise of sovereign power. Planning and zoning commissions make recommendations that the council often follows, conduct hearings on variances, special use permits, and subdivisions, and exercise rezoning authority delegated by the legislative body. These functions involve the police power of the municipality, which is sovereign power.
-
Continuing duties. Commission members serve fixed terms (typically three years), attend regular meetings, and have ongoing responsibilities. The duties are not occasional or one-off.
Barnett's conclusion: planning commission membership is a "public office under the municipality." SDCL 9-14-16 thus prohibits an alderman from also serving on the commission. The Crooks situation had to be resolved by the alderman picking one role or the other.
The opinion did not address how to resolve the existing service (whether the alderman could be retroactively removed from one position, whether his commission votes were voidable, whether the council could grandfather him through his current term). Those were practical questions for the city attorney to work through.
Currency note
This opinion was issued in 1994. Subsequent statutory amendments or court decisions may have refined the analysis. Treat this page as historical context for general guidance. SDCL 9-14-16's text and the Griggs test for public office have remained substantively stable, and modern dual-office analysis still follows this framework. Current municipal officials should consult with their city attorney or current SDCL chapter 9-14 before relying on the specific section references here.
What the opinion meant at the time
For Mayor Anderson and the Crooks city council, the opinion ended any ambiguity about the existing dual service. The alderman had to choose one position and resign the other. The choice was the alderman's; the legal disqualification was automatic regardless of which way he chose.
For Crooks's previous planning commission decisions in which the dual-service alderman had voted, the opinion did not address validity. South Dakota's de facto officer doctrine would generally preserve past actions taken under color of authority, even if the underlying eligibility was defective. But the practice had to stop.
For other South Dakota municipalities, the opinion clarified the Griggs v. Harding County test for distinguishing "public office" from "public employment" in the dual-office context. Any council member or trustee considering simultaneous service on an appointed body needed to run the three-prong analysis (created by law, exercises sovereign power, continuing duties).
For city attorneys statewide, the opinion was a checklist tool. Walk the Griggs test, apply SDCL 9-14-16's blanket prohibition, and counsel the official to choose if both positions failed the dual-office bar.
For citizens watching small-town governance, the opinion reinforced that the same person could not wear two municipal hats at once, even in small communities where the pool of civically-engaged volunteers was limited.
Common questions
Q: Why is dual office holding banned?
A: For at least three reasons: (1) to prevent conflicts of interest where one office reviews or appeals decisions of another, (2) to spread civic participation across more individuals (a "rotation" benefit), and (3) to maintain institutional checks by ensuring multiple independent perspectives in municipal governance. The Crooks situation hit reason #1 squarely: the council reviewed planning commission decisions, and an alderman/commissioner on both would have voted on his own work.
Q: What is the Griggs v. Harding County test exactly?
A: A 1942 South Dakota Supreme Court decision distinguishing "public office" from "public employment." Public office: created by law, exercises sovereign power, has continuing duties. Public employment: lacks one or more of those elements. The test has been applied many times since, including in Seymor (1988), which Barnett also cited. It is the standard tool for analyzing whether a position is an "office" subject to dual-office prohibitions.
Q: Could the alderman serve on a purely advisory committee that lacks decision-making power?
A: Probably yes. Advisory committees that merely make recommendations to the council, do not have rule-making or adjudication authority, and lack continuing fixed-term membership generally fail the "exercise of sovereign power" prong of Griggs. Such positions are not "offices" and would not trigger SDCL 9-14-16.
Q: What about state offices? Can an alderman also be a state representative?
A: SDCL 9-14-16 is specifically about municipal dual office holding. State offices are governed by other dual-office and dual-compensation statutes. The general rule under South Dakota law is that an alderman can also be a state representative, subject to dual-compensation rules and conflict-specific situations.
Q: What happens to past commission decisions if the alderman was ineligible to serve?
A: That depends on the doctrine of de facto officers. South Dakota generally recognizes acts of de facto officers (those who appeared to be in office and acted under color of authority) as valid against third parties, even if the officer was legally ineligible. So past commission decisions are usually not voidable solely because of the dual-office violation, but the practice should stop going forward.
Background and statutory framework
South Dakota municipal governance is structured around three main bodies. The legislative body is the common council (aldermen) or board of trustees, elected by the voters. The executive is the mayor (or in commission-form cities, the commissioners). Various appointed bodies handle specialized functions: planning and zoning, board of adjustment, library boards, park boards, and others. The appointed bodies are typically mayoral-nominated and council-confirmed.
SDCL chapter 9-14 governs municipal officers and their qualifications, removal, vacancies, and dual-office limitations. SDCL 9-14-16's broad prohibition reflects a longstanding policy choice that elected legislative officials should not simultaneously hold appointed offices in the same municipality.
SDCL chapter 11 governs municipal planning and zoning. SDCL 11-4 (municipal planning) and SDCL 11-6 (municipal zoning) together establish the commission structure, hearing procedures, and council-versus-commission relationship.
The Crooks situation is a common small-town problem. With a limited pool of civically-engaged residents, the same handful of people often end up holding multiple positions. Mayor Anderson's question was prompted by a recognition that the dual service was problematic but a need for AG confirmation before asking the alderman to step down from one position. Barnett's opinion provided that confirmation.
Source
Original opinion text
OFFICIAL OPINION NO. 94-07
Concurrent Municipal Offices
Dear Mayor Anderson:
You have requested an official opinion from this Office concerning the following factual situation:
FACTS:
An alderman on the Crooks common council also sits as a member of the municipal planning and zoning commission. It is his intent to maintain his membership on both public bodies and to vote on the matters which come before each body. The common council hears appeals from the decisions of the planning and zoning commission.
Based upon these facts, you have asked the following question:
QUESTION:
May an alderman sit on both the common council and the municipal planning and zoning commission?
IN RE QUESTION:
The answer to your question is found primarily in SDCL 9-14-16, which provides in pertinent part:
No mayor, alderman, commissioner or trustee may hold any other office under the municipality while an incumbent of such office.
A planning and zoning commission is a creature of statute, with its members appointed by the mayor and confirmed by the governing body of the municipality. SDCL 11-6-4; SDCL 11-4-11. Based upon my examination of the powers granted to such commissions by the Legislature, I have no doubt that membership on the planning and zoning commission constitutes an "office under the municipality." The South Dakota Supreme Court has identified what constitutes a "public office" by use of the following standards:
It may be stated, as a general rule deducible from the cases discussing the question, that a position is a public office when it is created by law, with duties cast on the incumbent which involve an exercise of some portion of the sovereign power and in the performance of which the public is concerned, and which also are continuing in their nature and not occasional or intermittent; while a public employment, on the other hand, is a position which lacks one or more of the foregoing elements.
Griggs v. Harding County, 3 N.W.2d 485, 487 (S.D. 1942); Seymor v. Western Dakota Vocational Technical Institute, 419 N.W.2d 206 (S.D. 1988). Clearly, membership on a municipal planning and zoning commission satisfies all of the elements listed by the court and therefore is a public office.
In my opinion, SDCL 9-14-16 prohibits an alderman from serving as a member of the municipal planning and zoning commission. My answer to your question is "No."
MB:HHD:nan