Can the Pennington County State's Attorney's Public Information Officer also serve on the Rapid City Area School Board, or is that a built-in conflict of interest?

Plain-English summary

The Pennington County State's Attorney's Public Information Officer was running for the Rapid City Area School Board. State's Attorney Lara Roetzel wrote the AG to ask the obvious question: does that present a built-in conflict of interest under South Dakota's incompatible-offices law?

The PIO is a hired employee whose job is to handle media requests for the State's Attorney's Office and provide accurate information to the public. State's Attorney's Offices, separately, are the local enforcers of South Dakota's open meetings laws under SDCL 1-25-6, and can refer open-meetings complaints to the South Dakota Open Meetings Commission. School boards are public bodies subject to those open meetings laws. So in theory, the PIO's office prosecutes open-meetings violations that the school board could potentially commit.

AG Marty Jackley said no per se conflict.

Two key reasons. First, the PIO is an employee, not an officer. SDCL 13-7-3 bars "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." The statute is about office holders, not employees. The PIO is hired and supervised, not elected or appointed to a separate statutory office. The Legislature could have extended the prohibition to county employees and chose not to.

Second, even applying the four-part incompatible-offices framework from 1972 AG Opinion 72-18, the two roles pass the test. The 72-18 test asks: (a) does the constitution or statute make the offices incompatible? (b) is one subordinate to the other? (c) are the functions inherently inconsistent? (d) does public policy declare it improper to hold both? Answering yes to any one would make them incompatible. Here, all four come back no. The PIO and school board are not constitutionally or statutorily linked, neither is subordinate to the other, their functions don't conflict, and there's no public policy bar.

The AG closed with the usual caveat that specific facts could still trigger specific conflicts. If the State's Attorney's Office were investigating a Rapid City school board open meetings violation and the PIO-board-member's job involved that investigation, that would be an actual conflict to be addressed (typically by recusal). But that's case-by-case ethics work, not a per se eligibility bar.

What this means for you

For county and municipal employees considering running for school board

You are likely eligible to run. SDCL 13-7-3 keys off office-holding, not employment. Your job as a county or municipal employee, if it's not a separate statutory office, does not trigger the per se bar. Verify by reading your job description against the statute: are you appointed by the governing body to a defined statutory position? Or are you hired in a regular employment relationship? If the latter, you're an employee and the bar doesn't apply.

For the PIO and other public information officers

Your dual role is legally permitted. Build a recusal protocol with your boss for situations that touch matters where the school board is involved. Document the recusal each time, file it with your office's ethics records, and avoid even the appearance of using your day-job access for school board work or vice versa.

For state's attorneys and county counsel

This opinion gives you a clear analytical framework when employees in your office want to run for local boards. Apply the 72-18 four-part test. Office vs. employee is the threshold question. If you decide the employee can run, set up a recusal protocol for any case the office handles that involves the board the employee serves on.

For school boards considering newly elected members with day jobs in government

Welcome the new member, then assess their day job for specific-conflict scenarios. If they work for an entity that the school board interacts with (vendors, oversight bodies, the State's Attorney), build a recusal expectation. The per se rule isn't violated by ordinary public employment; it's violated by sitting in an "office" with statutorily incompatible duties.

For voters assessing candidate eligibility

If a candidate's day job is a government job, ask whether it's a statutory office or a regular employee position. Salaries from a county check don't equal "office holding" under SDCL 13-7-3. Voters can still weigh whether a candidate's day job creates a recurring conflict pattern that they want to factor into their vote.

For ethics commission and oversight staff

The opinion reinforces a recurring pattern: SDCL 13-7-3 is narrower than people sometimes assume. It's specifically about office holders with inherently incompatible duties. Employee-officeholder dual roles are not categorically barred. The work happens at the specific-conflict layer, not the eligibility layer.

Common questions

Q: What's the difference between an "officer" and an "employee" in this context?
A: An officer holds a defined position created by statute or constitutional provision, typically with elected, appointed, or fixed-term tenure and specified duties. An employee is hired at-will or contractually into a position that the government can define and redefine. Public Information Officer is generally a job title, not a statutory office. Sheriff, county auditor, school district business manager, etc., are statutory offices.

Q: What is the four-part test in 72-18?
A: It's the AG's longstanding framework for incompatible-offices analysis: (1) constitutional or statutory bar; (2) subordination of one to the other; (3) inherent functional inconsistency; (4) public policy bar. Yes on any one means the offices can't be held by the same person. The 1972 opinion held that school district business manager and municipal finance officer were compatible under that test, similarly to the result here.

Q: Does this opinion mean any county employee can run for school board?
A: It means there's no per se bar based on the SDCL 13-7-3 incompatible-offices framework for an employee position. Specific employments may still raise specific conflicts. And there could be other policies, like county personnel rules, that limit how employees engage in political campaigns. The AG opinion addresses the statutory eligibility bar, not personnel-policy questions.

Q: What happens if a specific conflict arises after the PIO joins the school board?
A: Standard ethics handling: identify the conflict, recuse from the matter, document the recusal. If the State's Attorney's Office is investigating open meetings issues involving the school board, the PIO may need to be walled off from that work, possibly with formal documentation in both organizations.

Q: Is open meetings enforcement really a serious concern given the PIO's role?
A: The AG flagged it as the theoretical pressure point. In practice, PIOs handle media communications, not prosecution decisions. The State's Attorney makes the enforcement call. The conflict path runs through the State's Attorney's discretion, not the PIO's job duties. But the framework requires looking at it, not just dismissing it.

Q: Are there other state offices that have automatic incompatibility with school board service?
A: SDCL 13-7-3 lists "elective county, municipal, or state officer[s]" and any office holder whose duties are incompatible. The Supreme Court and AG opinions have applied this to various office combinations over the years. Each combination is its own analysis.

Q: Does this analysis change if the school board member is later promoted to an actual statutory office in the county?
A: Yes, potentially. If the same person became (for example) elected State's Attorney while sitting on the school board, the analysis would be done over with the new office on the other side. The result could change.

Background and statutory framework

South Dakota's incompatible-offices rule comes from common law and is codified in various forms for different offices. SDCL 13-7-3 is the specific provision for school board membership. The school board context has historically attracted attention because school boards are widely considered local offices that connect with other governmental functions (zoning, finance, tax assessment, open meetings) and the potential for conflict is real.

AG Opinion 72-18 (then-AG Gordon Mydland) set out the four-part analytical framework that's still in use 50+ years later. The framework is functional: rather than listing prohibited combinations, it asks whether the duties of the two roles can be performed by the same person without one undermining the other.

The "officer versus employee" distinction is a recurring threshold in SD ethics and conflict-of-interest law. Officers face one set of restrictions; employees face a different (and usually narrower) set. The distinction tracks the historical principle that public officers exercise sovereign discretion while public employees execute under direction.

The PIO position itself is relatively new in many SD government offices. State's Attorneys, counties, school districts, and state agencies have all expanded their communications staff over the last 20 years. This opinion is one of the first AG statements specifically clarifying that PIO is an employee role for incompatible-offices purposes.

Citations and references

Statutes:
- SDCL 1-25-6 (open meetings enforcement by state's attorney)
- SDCL 13-7-3 (school board eligibility and incompatible-offices bar)

Cases and prior AG opinions:
- Reck v. S. Dakota Bd. of Pardons & Paroles, 2019 S.D. 42, 932 N.W.2d 135
- Boever v. S. Dakota Bd. of Acct., 526 N.W.2d 747 (S.D. 1995)
- Official Opinion No. 72-18 (Mydland, 1972) (four-part incompatible-offices test)

Source

• Landing page: https://atg.sd.gov/OurOffice/OfficialOpinions/opinionhtml.aspx?id=1765
• 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