If an employee of the county State's Attorney's Office runs for a seat on the local school board, does that automatically create a conflict of interest that disqualifies them?

Plain-English summary

The Public Information Officer (PIO) for the Pennington County State's Attorney's Office was running for the Rapid City Area School Board. State's Attorney Lara Roetzel asked the AG whether the candidacy created an automatic, per se conflict of interest that would disqualify the PIO.

AG Marty Jackley said no. Two layers of analysis:

Statutory. SDCL 13-7-3 disqualifies "elective county, municipal, or state officer[s] or the holder of any other office, the duties of which are incompatible or inconsistent with the duties of a school board member" from school board membership. The PIO is an employee, not an officer (the PIO is not elected, has no statutory office). The plain text of SDCL 13-7-3 does not reach county employees. The Legislature could have written "employee" into the statute and did not, so the disqualification does not apply.

Common-law compatibility. Even if the PIO were treated as an officer, AG Opinion No. 72-18 (issued by AG Gordon Mydland) supplies a four-factor test for compatibility of offices:

1. Does the Constitution or any statute make the two offices incompatible?
2. Is one office subordinate to and subject to the revisory powers of the other?
3. Are the functions of the two offices inherently inconsistent or repugnant?
4. Does public policy declare it improper to discharge both duties at the same time?

If any factor is met affirmatively, the offices are incompatible. Applying the test here: no constitutional or statutory bar; neither office is subordinate to the other; the PIO's press duties and the school board member's governance duties are not inherently inconsistent; public policy does not declare it improper. None of the four factors is met, so even on the compatibility-of-offices framework the PIO can serve.

The AG hedges with a fact-specific caveat: actual conflicts may arise (the PIO might face a situation where school district legal interests intersect with the State's Attorney's Office; the State's Attorney has jurisdiction over open meetings violations under SDCL 1-25-6). Those would be addressed on a case-by-case basis. The opinion only rules out per se (automatic) disqualification.

The opinion essentially preserves the right of public-sector employees to run for and serve on school boards. It is a narrow holding with broader implications: any county or municipal employee whose job duties don't directly conflict with school board service can simultaneously hold both.

What this means for you

If you are a county or municipal employee considering running for school board

This opinion is a green light, with three things to think through:

1. Are you an "officer" with statutorily-defined duties (e.g., sheriff, county auditor, register of deeds), or are you an "employee" reporting to one of those officers? If you are an employee, SDCL 13-7-3's disqualification does not apply to you.
2. Are your job duties inherently inconsistent with school board service? The four-factor test of Opinion No. 72-18 is the framework. Most ordinary employee duties pass the test; some (like a county attorney who would be advising the school district on legal matters) might not.
3. Be prepared for actual conflicts to come up. If the school board is dealing with an open meetings complaint that your office is investigating, recuse from the school board discussion. The opinion's "case-by-case" caveat is doing real work; serving on both bodies means you sometimes have to step out of one room.

If you are a State's Attorney or other county officer

You can hire and supervise employees who serve on local boards without that itself being a conflict. But manage the relationship deliberately:

• Establish written recusal protocols for situations where the employee's school board role intersects with office work (the obvious example is an open meetings complaint involving the school district).
• Document that your office's case decisions are not influenced by an employee's outside service.
• If an employee's school board role becomes a chronic source of recusal needs, consider whether the employee should step back from one role.

If you are a sitting school board member with a question about a colleague's eligibility

The per se disqualification in SDCL 13-7-3 only attaches if the colleague holds an "elective county, municipal, or state office" or "any other office" with incompatible duties. The four-factor test in Opinion No. 72-18 helps assess incompatibility for borderline cases. Most public employees do not trigger the disqualification.

If a specific transaction creates an actual conflict (board contracts with the colleague's employer, for example), follow the board's standard conflict-of-interest procedures (disclosure, recusal from vote).

If you advise candidates on eligibility

The opinion confirms a narrow reading of SDCL 13-7-3. The disqualification reaches only "officers" with incompatible duties, not the broader category of public employees. Candidates whose day jobs are in state, county, or municipal employment generally do not trigger the statute.

The four-factor test is the safest framework for borderline cases. Walk candidates through it; if any factor is met, the candidacy is at risk.

If you are pursuing reform of SD ethics or dual office statutes

This opinion is evidence that current South Dakota law leaves significant gaps for public employees. The Legislature could expand SDCL 13-7-3 to cover employees, or adopt a more general dual-employment / dual-service code. The lack of such a law means dual roles are routinely permissible, and conflicts are addressed reactively rather than preemptively.

Common questions

Q: What is the difference between an "officer" and an "employee" in this context?
A: An "officer" is generally someone holding a position created by constitution or statute with defined statutory duties and (usually) a fixed term. An "employee" is someone hired by an officer or governmental body to do work, typically at-will or under personnel rules. The Public Information Officer in this opinion is an employee because the position is not statutorily created and the PIO is not elected.

Q: Does the four-factor test apply to all dual-office situations in South Dakota?
A: Yes, Opinion No. 72-18 established the test in 1972 and South Dakota has continued to use it. It is the standard analytical framework for compatibility-of-offices questions. The four factors are: constitutional/statutory bar; subordinate-and-revisory relationship; inherent inconsistency of functions; and public policy considerations.

Q: Can a school board member be a county commissioner?
A: That is a different and harder question. County commissioner is a county office. Under SDCL 13-7-3, the question would be whether the duties of county commissioner are "incompatible or inconsistent" with school board duties. Counties and school districts sometimes interact on funding, property tax, and shared infrastructure, which suggests some duties may be incompatible. A specific AG opinion or court ruling would be the better authority for that question.

Q: Can a city council member be a school board member?
A: Same analysis under SDCL 13-7-3. The "incompatible or inconsistent" inquiry would look at how municipal duties (e.g., voting on school district funding, zoning decisions affecting school property) intersect with school board duties. Likely fact-specific.

Q: What about a state legislator who wants to serve on a local school board?
A: SDCL 13-7-3 lists "state officer[s]." State legislators are state officers. The compatibility test under Opinion No. 72-18 would apply. This opinion does not address that scenario directly.

Q: What happens if an actual conflict arises during the dual service?
A: Standard ethical and procedural responses: disclosure to the board, recusal from the specific matter, and recording the recusal in the minutes. The State's Attorney's Office and school district might also have written protocols for handling specific scenarios (e.g., an open meetings complaint that the PIO's office is investigating against the school district).

Q: Does this opinion bind future AG offices?
A: AG opinions are not binding precedent. They are persuasive guidance. A future AG could reach a different conclusion if facts or statutes change. The 1972 Opinion No. 72-18 test has been applied consistently for over 50 years, so its analytical framework is well-established.

Q: What if the Pennington County State's Attorney's Office investigates an open meetings complaint at the school board the PIO sits on?
A: That would be the kind of actual conflict the opinion flags as fact-specific. The PIO would normally need to recuse from the school board's discussion of the investigation. The State's Attorney's Office might separately establish that the PIO has no influence on the investigation. The opinion does not address what happens if the conflict becomes severe enough that one role becomes untenable.

Background and statutory framework

South Dakota's framework for limiting concurrent office-holding has two main pieces. First, specific statutes like SDCL 13-7-3 list offices whose holders cannot also serve on a particular board (here, the school board). Second, common-law principles, codified through long-standing AG opinions, apply a compatibility test where the statute is silent.

The compatibility framework comes from Opinion No. 72-18 (1972), one of the more cited AG opinions in South Dakota dual-office practice. AG Gordon Mydland set out a four-question test that has been used consistently since. The current opinion applies the same four-question test, and reaches the same outcome of compatibility for offices not directly addressed by statute.

The PIO's specific role is worth understanding. Public Information Officers in State's Attorney's Offices handle media inquiries, draft press releases, manage public outreach about office work, and provide background on cases. They are not prosecutors, do not exercise charging discretion, and do not have statutory duties. They support the State's Attorney's communications function.

Compare a Deputy State's Attorney, who is an officer (statutorily defined position with prosecutorial authority), with the PIO. A Deputy State's Attorney running for school board would face a much harder analysis: prosecutorial duties and school board duties have potential intersections (open meetings prosecution under SDCL 1-25-6, school resource officer-related cases, etc.). The PIO does not have those duties, which is why this opinion comes out the way it does.

The actual conflict caveat is important. South Dakota's Boever v. S.D. Bd. of Acct. (1995) holds that a matter is sufficiently ripe for adjudication if facts indicate "imminent conflict." A theoretical, contingent conflict does not justify disqualification; an actual or imminent one might. The opinion preserves space for case-by-case enforcement when specific situations arise.

Citations and references

Statutes:
- SDCL 13-7-3 (school board member eligibility)
- SDCL 1-25-6 (open meetings investigation authority)

Prior AG opinion:
- SD AG Opinion No. 72-18 (four-factor compatibility test)

Cases:
- Reck v. S. Dakota Bd. of Pardons & Paroles, 2019 S.D. 42, 932 N.W.2d 135 (statutory plain-language interpretation)
- Boever v. S. Dakota Bd. of Acct., 526 N.W.2d 747 (S.D. 1995) (ripeness through imminent conflict)

Source

• Landing page: https://atg.sd.gov/OurOffice/OfficialOpinions/opinions.aspx
• Original PDF: https://atg.sd.gov/OfficialOpinions/AG%20Opinion%2024.03.pdf

Original opinion text

OFFICIAL OPINION No. 24-03

Re: Official Opinion Concerning Whether a County Employee Elected to a School Board Poses a Conflict of Interest

Dear Lara Roetzel,

QUESTION:

Would the election of the Public Relations Officer for the Pennington County State's Attorney's Office to the position of Rapid City Area School Board member present a per se conflict of interest?

ANSWER:

No. The election of the Pennington County State's Attorney's Public Information Officer to the Rapid City Area School Board does not present a per se conflict of interest.

FACTS:

The Public Information Officer of the Pennington County State's Attorney Office is running for a seat on the Rapid City Area School Board. According to the Pennington County State's Attorney's website, the Public Information Officer handles requests for interviews and requests for information related to the work of the State's Attorney's Office. In addition, the Public Information Officer is to provide "accurate information to the public and media."

State's Attorney's Offices are responsible for investigating or prosecuting alleged statutory violations of South Dakota's open meetings laws (SDCL Ch. 1-25). SDCL 1-25-6. In addition, State's Attorney's Offices may also forward the complaint or investigation to the South Dakota Open Meetings Commission. Id.

IN RE QUESTION:

SDCL 13-7-3 states "[n]o 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."

The position of Public Information Officer is that of an employee, not an officer, as the Public Information Officer is not elected. The plain language of SDCL 13-7-3 prohibits only an office holder with duties that are "incompatible or inconsistent with the duties of a school board member" from being elected to a school board. The job of Public Information Officer for the Pennington County State's Attorney's Office is not an "office", as understood in the statute, and the duties of that position are not incompatible or inconsistent with the duties of a school board member.

In Official Opinion No. 72-18, Attorney General Gordon Mydland found that the following four questions must be reviewed when determining if two offices are compatible if held by the same person at the same time:

• Does the Constitution or statutes make such offices incompatible?
• Is one of the offices subordinate to and subject to its revisory powers?
• Are the functions of the two offices inherently inconsistent or repugnant?
• Does public policy declare it is improper for a person to discharge the duties of both offices at the same time?

If the answer to any of these questions is in the affirmative, the offices are incompatible with one another. Id. In applying this analysis, Official Opinion No. 72-18 found that the offices of school district business manager and municipal finance officer were compatible.

In applying these questions here, the Pennington County State's Attorney's Public Information Officer and a Rapid City Area School Board member are compatible with each other. Nothing in the Constitution or in SDCL 13-7-3 makes these offices incompatible with each other. Neither office is subordinate to the other. The functions of the two offices are not inconsistent with one another. Finally, public policy would not find it improper for a person to carry out the duties of both offices at the same time.

Here, SDCL 13-7-3 only prohibits "county, municipal, or state officer[s], or the holder of any other office," whose duties are incompatible with that of a school board member, from being eligible to run for school board. The Legislature could have extended this prohibition to county employees but chose not to. See Reck v. S. Dakota Bd. of Pardons & Paroles, 2019 S.D. 42, ¶ 14, 932 N.W.2d 135, 140 (assuming that "statutes mean what they say and that legislators have said what they meant.") (further citation omitted).

While there is not a per se conflict of interest, whether an actual conflict may arise depends on the facts of any potential situation; and those individual conflicts will need to be addressed on a case-by-case basis. See Boever v. S. Dakota Bd. of Acct., 526 N.W.2d 747, 750 (S.D. 1995) ("[a] matter is sufficiently ripe if the facts indicate imminent conflict."). SDCL 1-25-6 also authorizes the Pennington County State's Attorney to send a potential complaint to the "South Dakota Open Meetings Commission for further action."

CONCLUSION:

I conclude that the position of Public Information Officer in the Pennington County State's Attorney's Office is compatible with the duties of a Rapid City Area School Board member and does not present a per se conflict of interest. Whether an actual conflict may arise is fact dependent and addressed on a case-by-case basis.

Sincerely,

Marty J. Jackley

ATTORNEY GENERAL

MJJ/SGG/dd