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's answer was no on both counts, but he reached the two answers by different routes.
On the county commissioner question, the AG reversed two earlier AG opinions from 1935-36 and 1953-54 that had said the two offices were compatible. Meierhenry's reasoning: the South Dakota Constitution gave the Legislature plenary power to organize and classify units of local government. The Legislature could change county commissioner terms, compensation, and powers. A legislator who was also a sitting commissioner would have direct authority to vote on bills affecting his own commission tenure and pay. That was a conflict of interest, and the AG concluded that sound public policy required separating the offices.
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 two answers carried different practical weight. The commissioner-legislator conflict was a policy-and-ethics conclusion, framed in conflict-of-interest language but not anchored to an express constitutional or statutory bar. The Veterans Commission analysis was a direct application of a constitutional text and was a harder rule.
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. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The county commissioner statutes in SDCL chapter 7-8 and the Veterans Commission statutes in SDCL chapter 33-16 have been amended since 1982, and the South Dakota Supreme Court may have addressed dual office-holding questions in the intervening decades. The constitutional provisions cited (Article III, Section 3 and Article IX, Section 1) remained in force as of the opinion date but should be checked for amendments.
What the opinion meant at the time
For the prospective candidate who was a sitting county commissioner, the opinion was a clear signal: pick one. The AG framed it as a conflict of interest, which historically in South Dakota meant the candidate could be challenged in office and could have decisions invalidated. The legal mechanism (resignation upon taking the second office, or barring of the second office on candidacy) depended on how a court chose to enforce the conflict, but the AG's view was that the offices were incompatible.
For the Veterans Commission member running for the Legislature, the answer was constitutional and direct. Article III, Section 3 barred the dual role. If elected to the Legislature, the candidate would have to resign from the Veterans Commission, and a failure to do so would render either the second office void or the legislative qualification subject to challenge.
For the Secretary of State, the opinion gave administrative guidance on ballot eligibility and conflicts surfacing during a campaign. The office of Secretary of State has often been the practical hub for these questions because it manages candidate filings and election certifications.
For broader government ethics, the opinion shifted South Dakota's position. The pre-1982 AG view (from 1935 and 1953) had been that legislator and county commissioner could be held simultaneously. Meierhenry's reversal pushed the state toward a stricter separation, consistent with modern good-government norms.
Common questions
Q: Was the conflict-of-interest holding on county commissioner / legislator just policy, or did it actually disqualify someone?
A: The opinion framed it as "sound public policy would seem to dictate that legislators not serve on county commissions" and concluded that "a conflict of interest would exist." The opinion did not point to a specific statute or constitutional provision that automatically voided the second office. Practical enforcement at the time would likely have required a quo warranto action or a challenge to specific votes the legislator-commissioner cast on bills affecting county commissioners.
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 didn't address that directly. If the position truly had no compensation tied to performing the duties, the Article III, Section 3 bar wouldn't apply. But the legislator should still consider whether the position involved exercising state sovereignty in a way that overlapped with legislative duties.
Q: Did the prior contrary AG opinions (1935-36 AGR 412 and 1953-54 AGR 284) get formally overruled?
A: Yes. Meierhenry expressly stated that "reconsideration of the issues involved is necessary" and reached the opposite conclusion. Later courts and AGs would treat 82-23 as the controlling AG view.
Background and statutory framework
South Dakota's constitutional design separated the state from local government but gave the Legislature broad authority over the structure of counties. Article IX, Section 1 stated that "The Legislature shall have plenary powers to organize and classify units of local government." That power was the engine for the county commissioner statutes in SDCL chapter 7-8: the Legislature set the terms (SDCL 7-7-3), the organization (SDCL 7-8-1), the procedure for filling vacancies, and the general powers.
A legislator who was also a sitting commissioner would have a direct say in legislation reshaping his own county role. The AG treated that as a structural conflict, even though the older opinions had focused on whether the two offices could be physically performed by one person at the same time. The 1982 opinion shifted the analysis from physical compatibility (can you do both jobs?) to conflict of interest (would holding both create improper incentives?).
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 1964 Texas case Wills v. Potts the AG cited has been a touchstone for "lucrative office" analysis in many states. Its rule, that compensation for performing duties of the office is what counts and the amount is immaterial, gave a workable 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 7-7-3 (county commissioner 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 (overruled by this opinion)
- 1953-54 AGR 284 (overruled by this opinion)
- 1971-72 AGR 202
Source
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:
-
A person holding the office of an elected county commissioner is considering being a candidate for State Legislature. If elected, his terms would overlap.
-
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:
-
Is there a conflict of interest if a person holds the offices of county commissioner and state legislator simultaneously?
-
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