In South Dakota, can the same person serve as both a county commissioner and a state legislator at the same time? And can a state legislator also sit on the South Dakota Veterans Commission?

Plain-English summary

Secretary of State Alice Kundert wrote the Attorney General with a practical election-cycle question. A sitting county commissioner wanted to run for the State Legislature and, if he won, hold both offices. A separate candidate for the Legislature was already serving on the State Veterans Commission and wanted to keep that seat after election. Could either of them do it?

AG Mark Meierhenry gave different answers to the two questions: he identified a conflict of interest in the first situation and an incompatible pair of offices in the second.

On the county commissioner question, the AG reconsidered two earlier AG opinions from 1935-36 and 1953-54 that had said the offices were compatible. Meierhenry reasoned that the Legislature could change county commissioner terms and compensation, so a legislator who was also a commissioner might vote on matters affecting his own position. He concluded that simultaneous service would create a conflict of interest and said sound public policy "would seem to dictate" separation. He did not conclude that dual service was legally prohibited.

On the Veterans Commission question, the AG looked at Article III, Section 3 of the state constitution, which barred persons holding "any lucrative office under the United States, or of this state" from being members of the Legislature. The exceptions were narrow: notary public, justice of the peace, and militia appointments. Veterans Commissioners received daily attendance allowances plus travel and expenses (SDCL 33-16-7) and exercised delegated state sovereign authority through quasi-judicial and quasi-legislative powers (SDCL 33-16-4.1). That qualified the office as "lucrative" under the Texas test in Wills v. Potts: compensation tied to office duties, with the amount of compensation immaterial. So a legislator could not simultaneously serve on the Veterans Commission.

The distinction matters: the county commissioner answer identifies a conflict of interest, while the Veterans Commission answer expressly states that a person "may not serve as a state legislator and Veterans Commissioner at the same time."

Currency note

This opinion was issued in 1982. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. The county commissioner statutes in SDCL chapter 7-8, the Veterans Commission statutes in SDCL chapter 33-16, and the constitutional provisions cited (Article III, Section 3 and Article IX, Section 1) may have been amended since 1982, and South Dakota courts may have addressed dual office-holding since. Verify current law before relying on anything here.

What the opinion meant at the time

For the prospective candidate who was a sitting county commissioner, the opinion concluded that holding both offices would create a conflict of interest. The AG cited the Legislature's power over county commissioner terms and compensation (Article IX, § 1) and the possibility that a legislator-commissioner could vote on matters affecting his own position. It did not state that either office would be vacated or that simultaneous service was barred.

For the Veterans Commission member running for the Legislature, the answer was constitutional and direct. Article III, Section 3 bars a member of the Legislature from holding a "lucrative office" of the state, and the AG concluded the Veterans Commission seat was such an office, so the two could not be held simultaneously.

The Secretary of State asked about two legislative candidates whose existing terms or appointments might overlap with legislative service. The opinion answers those two situations; it does not decide ballot eligibility or election certification procedures.

The opinion departs from the earlier AG view, stated in 1935-36 and repeated in 1953-54, that county commissioner and legislator were compatible. Meierhenry said reconsideration was necessary and concluded that dual service would create a conflict of interest.

Common questions

Q: Was the conflict-of-interest holding on county commissioner / legislator just policy, or did it actually disqualify someone?
A: The opinion concluded that "a conflict of interest would exist" and said sound public policy "would seem to dictate" separation. It did not say dual service was prohibited, that either office was vacated, or how the conflict would be enforced. Its Veterans Commission answer, by contrast, expressly says simultaneous service is not permitted.

Q: What did "lucrative office" mean for the Veterans Commission analysis?
A: An office where the holder was compensated for performing the duties of the office. The amount didn't matter. The Veterans Commission paid daily attendance allowances plus expenses, so the seat qualified.

Q: Were notary public and justice of the peace really the only exceptions?
A: Article III, Section 3 specifically listed those plus militia appointments as not lucrative. Other unpaid or expenses-only positions might or might not qualify; the opinion treated the Veterans Commission as paid because of the daily attendance allowance.

Q: Could a state legislator hold an unpaid state advisory position?
A: The opinion does not decide that situation. Its Veterans Commission analysis turns on the commission's exercise of delegated state authority and its daily attendance allowance; it does not assess an unpaid advisory position.

Q: What did the AG say about the earlier opinions finding the offices compatible?
A: He identified the contrary 1935-36 and 1953-54 AG opinions, said "reconsideration of the issues involved is necessary," and reached a different conclusion on conflict of interest. He did not discuss how later courts or AGs would treat his opinion.

Background and statutory framework

Article IX, Section 1 stated that "The Legislature shall have plenary powers to organize and classify units of local government." The opinion says the Legislature set county commissioner terms and compensation (SDCL 7-8-1; 7-7-3), the procedure for filling vacancies, meetings, and the commissioners' general powers.

A legislator who was also a sitting commissioner might vote on matters affecting his own commission tenure and compensation. The AG cited that possibility when he concluded that simultaneous service would create a conflict of interest. He did not analyze the reasoning of the earlier opinions beyond noting that they had found the offices compatible.

The Veterans Commission was a different beast. It was an executive-branch commission with delegated sovereign authority. Article III, Section 3 of the state constitution had a clear text excluding holders of lucrative state offices from the Legislature. The opinion's application was textual: identify the office, identify the compensation, apply the rule.

The AG cited the 1964 Texas case Wills v. Potts for the rule that a "lucrative office" is one where the holder is compensated for performing the duties of the office, and that the amount of compensation is immaterial. Because Veterans Commissioners received a daily attendance allowance plus expenses (SDCL 33-16-7), the seat met that test.

Citations and references

Constitutional provisions:

• S.D. Const. Art. III, § 3 (lucrative office bar)
• S.D. Const. Art. IX, § 1 (legislative power over local government)

Statutes:

• SDCL 7-8-1; 7-7-3 (county commission terms and compensation)
• SDCL 7-8-1 (county commission organization)
• SDCL ch. 7-8 (commissioners generally)
• SDCL 33-16-4, 33-16-4.1, 33-16-7 (State Veterans Commission)

Cases:

• Wills v. Potts, 377 S.W.2d 622 (Tex. 1964)

Earlier AG opinions referenced:

• 1927-28 AGR 240
• 1933-34 AGR 115
• 1935-36 AGR 412 (earlier compatibility view reconsidered here)
• 1953-54 AGR 284 (earlier compatibility view reconsidered here)
• 1971-72 AGR 202

Source

• Landing page: https://atg.sd.gov/OurOffice/OfficialOpinions/opinionhtml.aspx?id=789

Original opinion text

Conflict of Interest and Compatibility of State Governmental Offices Held by Same Individual

Dear Ms. Kundert:

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

FACTS:

1. A person holding the office of an elected county commissioner is considering being a candidate for State Legislature. If elected, his terms would overlap.

2. Another candidate for State Legislature is a member of the State Veterans Commission.

Based on the above situations, you have asked the following questions:

QUESTIONS:

1. Is there a conflict of interest if a person holds the offices of county commissioner and state legislator simultaneously?

2. Are the offices of state legislator and Veterans Commissioner compatible?

IN RE QUESTION NO. 1:

This question has been presented on several occasions in the past. In 1935-36 AGR 412, this office rendered the opinion that the offices of county commissioner and state legislator were compatible and that a county commissioner could retain his position on a county commission while serving in the Legislature. In 1953-54 AGR 284, this office reiterated its adherence to the view that the offices of county commissioner and legislator were compatible.

While the above opinions would appear to dispose of your inquiry, I feel that reconsideration of the issues involved is necessary before giving my opinion.

Article IX, § 1, of the South Dakota Constitution provides, inter alia, that the

Legislature shall have plenary powers to organize and classify units of local government, . . .

Pursuant to this constitutional grant, the Legislature has established a board of commissioners for each county, setting out their terms of office and compensation. SDCL 7-8-1; 7-7-3. The Legislature, therefore, has the authority to change the terms of office of the county commissioners, or their compensation by legislative enactment. The Legislature also has determined the manner in which vacancies on the county commission will be filled, provided for special and quarterly meetings and delineated the general powers of the commissioners. See, generally, Chapter 7-8 of the South Dakota Codified Laws, 1981 Revision. The county commissioners are subject to the revisory power of the Legislature. See 1971-72 AGR 202.

Clearly, a county commissioner elected to the Legislature would, perhaps, have the opportunity to vote on matters affecting his commission tenure and compensation while serving in the Legislature. This office has held in an earlier opinion, 1933-34 AGR 115, that a statute changing the salaries of county officers is not a special or private law in violation of constitutional provisions prohibiting the modification of county salaries by such laws. Sound public policy would seem to dictate that legislators not serve on county commissions.

Therefore it is my opinion that a conflict of interest would exist if an individual held the office of county commissioner and state legislator simultaneously.

IN RE QUESTION NO. 2:

The Veterans Commission consists of six members, appointed by the Governor pursuant to SDCL 33-16-4. The Commission is empowered by statute to exercise its authority in a variety of ways, among them quasi-judicial, quasi-legislative, and special budgetary functions. Commission members receive an allowance for each day spent attending Commission meetings, and their travel and other necessary expenses are also paid. SDCL 33-16-7.

The South Dakota Constitution Article III, § 3, setting out the qualifications for state legislative office, provides, inter alia, that:

No judge or clerk of any court, . . . or persons holding any lucrative office under the United States, or of this state, . . . shall be a member of the Legislature: provided, that appointments in the militia, the offices of notary public and justice of the peace shall not be considered lucrative.

It is my opinion that appointment to the Veterans Commission is not an appointment to the militia within the meaning of Article III, § 3 above.

The Commission was created by the Legislature, which delegated part of the governmental sovereignty of the State in empowering the Commission to act in a quasi-legislative and quasi-judicial manner. See SDCL 33-16-4.1. When the Commission acts within its appropriate governmental area, it is exercising that portion of state sovereignty delegated to it. The Commission's acts are those of the State and its members are holders of state offices.

A lucrative office would be one in which the holder of such office would be compensated for performing the duties attendant upon the office. Wills v. Potts, 377 S.W.2d 622 (Tex. 1964); 1927-28 AGR 240. The amount of such compensation is immaterial.

A member of the Veterans Commission holds a lucrative office within the meaning of Article III, § 3 of the South Dakota Constitution. Therefore, it is my opinion that the offices of state legislator and Veterans Commissioner are incompatible and that an individual may not serve as a state legislator and Veterans Commissioner at the same time.

Respectfully submitted,

Mark V. Meierhenry

Attorney General