Can a South Dakota school board member-elect also serve as Assistant Director of a cooperative educational service unit (the Black Hills Special Services Cooperative) where the school district is a member of the cooperative, contracts for services from the cooperative, and pays the cooperative for those services?
Plain-English summary
A school district election in the Lead/Deadwood District (in the Black Hills) put a new member on the board. That member was already employed as Assistant Director of the Developmental Disabilities Division of the Black Hills Special Services Cooperative, a cooperative educational service unit serving multiple districts including Lead/Deadwood. The board's lawyer asked the AG whether the new member could keep both positions.
The 1995 AG said no. Two grounds. Either grounds independently produced the same answer.
Statutory ground: SDCL 13-43-1 says no person "employed to teach or to draw public money as a teacher" may serve as a board member in the same school district. The Member-Elect was contractually employed by the Cooperative. The Cooperative is a "public financed multi-district education program," and the retirement-system definition of "teacher" in SDCL 3-12-47(68) explicitly includes "certified teachers employed by . . . public financed multi-district education programs." If the Member-Elect held a SD teacher's certificate, she was drawing public money as a teacher and was barred from board service by SDCL 13-43-1. The AG flagged that this conclusion was not free from doubt because there are other "teacher" definitions in SDCL 13-43-12 and 13-43-16, but on balance read SDCL 13-43-1 to bar the dual role.
Common-law ground: independent of any statute, the common-law incompatibility doctrine bars holding two offices when one has appointment or removal power over the other or where there are many potential conflicts of interest in salary negotiations, supervision, control, and duty to exercise independent judgment. Tarpo v. Bowman Public School District No. 1 (N.D. 1975) is the most-quoted modern statement. Otradovec v. City of Green Bay (Wis. App. 1984) extends the doctrine to public employment, not just public offices.
Whether the Assistant Director position is a "public office" or "public employment" matters less than it might seem because the doctrine reaches both. The AG cited the SD Supreme Court's Merrill v. Birhanzel (1981), suggesting teachers are officers, and the splintered Seymour v. Western Dakota Vocational Technical Institute (1988) decision, where three of the four participating justices indicated they viewed a vocational department head as an officer. The Assistant Director's supervisory authority made her, in the AG's view, a public officer of the Cooperative.
The incompatibility analysis turned on the control relationship between the District and the Cooperative. Under SDCL 13-5-32.1(2), each member district has at least one board member on the Cooperative's governing board. The District funds the Cooperative through service payments. The Member-Elect supervises Cooperative employees who teach the District's special education students. As an Assistant Director, she would also give advice and counsel to District teachers working with developmentally disabled students.
That control relationship (the District has institutional input and funding influence over the Cooperative; the Member-Elect occupies a substantial role within the Cooperative) is exactly the kind of structural overlap the incompatibility doctrine prohibits. The AG cited his predecessors' opinions reaching parallel conclusions: 1976-77 AGR 8 (school board and state vocational board incompatible because of funding cross-currents); 1981-82 AGR 171 (county commissions and the Legislature); 1974-75 AGR 41 (state board of education and local school boards incompatible because of subordination).
The bottom line: one person cannot exercise substantial control as a local school board member and simultaneously be a substantially controlled employee or officer of the same controlled entity.
Currency note
This opinion was issued in 1995. 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. SDCL chapter 13 has been amended substantially since 1995, including changes to the cooperative educational service unit framework and to the definitions of "teacher." The retirement-system "teacher" definition in SDCL 3-12-47 has been renumbered and amended. The common-law incompatibility doctrine remains a stable feature of SD law, but specific applications should be checked against current statute and current AG opinions before relying on this opinion.
What the opinion meant at the time
For the Lead/Deadwood School District in 1995, the opinion meant the Member-Elect had to choose: keep her position with the Cooperative or take the board seat, but not both. Whichever she gave up would have to be filled through the usual replacement process.
For other SD school districts that are members of cooperative educational service units (which is most districts), the opinion confirmed that cooperative employees from a member district cannot also serve on that district's school board.
For cooperative educational service units across SD, the opinion meant that cooperative leadership positions were closed to anyone who also held a member-district school board seat.
For school district attorneys advising on candidate eligibility, the opinion gave a clear screening rule: if a candidate is employed by a multi-district cooperative the district uses, the candidacy is structurally problematic.
For voters considering candidates with multi-district employment ties, the opinion explained the constitutional and statutory reasons such candidates could not serve.
Common questions
Q: What is a cooperative educational service unit?
A: A multi-district entity under SDCL chapter 13-5 that pools resources from member school districts to provide specialized services (special education, technology, professional development, etc.) that individual districts could not efficiently provide alone.
Q: Why does the district have control over the cooperative?
A: Each member district has at least one school board member on the cooperative's governing board (SDCL 13-5-32.1(2)). The districts also fund the cooperative through service payments. So the cooperative is, in effect, a creature of and dependent on its member districts.
Q: What is the SDCL 13-43-1 bar?
A: A school board member cannot also be "employed to teach or to draw public money as a teacher" in the same district. The 1995 AG read this to cover a teacher employed by a multi-district cooperative whose services the district funds.
Q: Does this rule apply to non-teaching cooperative employees?
A: SDCL 13-43-1 reaches only teaching employees. The common-law incompatibility doctrine, however, reaches employees of either kind if the control overlap exists. The AG used the common-law doctrine to cover the Assistant Director position regardless of whether SDCL 13-43-1 applied.
Q: What about a school board member who teaches in a different district?
A: SDCL 13-43-1's bar is "in the same school district." A board member from district A who teaches in district B is generally not within SDCL 13-43-1. But common-law incompatibility might still apply if there are control relationships between the two districts.
Q: What is the difference between a public officer and a public employee for incompatibility purposes?
A: Historically the doctrine applied only to public officers. Otradovec v. City of Green Bay and similar modern cases extended it to public employees. SD follows the broader rule. So the public-officer-vs-employee classification is less consequential than it used to be.
Q: If the Member-Elect resigns from the Cooperative, can she serve on the board?
A: Yes, the incompatibility problem disappears with the resignation. The bar is on simultaneous holding, not on past association.
Q: Could the Cooperative restructure to insulate the Member-Elect from district oversight?
A: Theoretically, but the structural control through funding and through SDCL 13-5-32.1(2) appointments is hard to undo without restructuring the cooperative framework itself.
Background and statutory framework
South Dakota's cooperative educational service unit structure is built on SDCL chapter 13-5. Each cooperative is formed by an agreement among participating school districts (SDCL 13-5-31) and is governed by a board including at least one school board member from each participating district (SDCL 13-5-32.1(2)). The cooperative provides specialized services that the districts pay for through service contracts.
The school board eligibility rules are in SDCL chapter 13-43. SDCL 13-43-1 bars teachers and people drawing public money as teachers from serving on the board of the same district. The intent is to prevent board members from voting on their own employment, salaries, and working conditions.
The cross-statutory link between cooperative employment and district teacher status runs through the retirement system. SDCL 3-12-47(68) defines "teacher" for retirement purposes to include teachers in public-financed multi-district programs (i.e., cooperatives). The 1995 AG used that definition to argue that a certified-teacher Cooperative employee was "drawing public money as a teacher" within the meaning of SDCL 13-43-1.
The other "teacher" definitions in SDCL 13-43-12 and 13-43-16 limit the certainty of that conclusion, but the AG read SDCL 13-43-1 broadly enough to cover the situation, and supplemented the analysis with the common-law incompatibility doctrine.
The common-law incompatibility doctrine, as restated in Tarpo v. Bowman Public School District No. 1, asks whether two offices have appointment or removal relationships, salary negotiation interactions, supervision and control relationships, or duties requiring independent judgment that the dual role would compromise. Otradovec v. City of Green Bay extends the doctrine to public employment.
The SD application is well-developed through prior AG opinions, several of which the 1995 AG cited as precedent (1976-77 AGR 8, 1981-82 AGR 171, 1974-75 AGR 41). The pattern across those opinions is that when one entity has substantial control over another (through governance, funding, or both), a single person cannot exercise that control and simultaneously be in the controlled entity.
The structural overlap test is what the doctrine ultimately measures. For Lead/Deadwood and the Black Hills Special Services Cooperative, the overlap is substantial: the District funds the Cooperative; the District has a board seat on the Cooperative; the Cooperative employs the Member-Elect to supervise teachers who serve the District's students. The overlap is sufficient to trigger the incompatibility doctrine regardless of how the dual role is structured.
Citations and references
Statutes:
- SDCL 13-5-31 (cooperative as legal entity)
- SDCL 13-5-32.1(2) (district board appointment to cooperative)
- SDCL 13-7-3 (school board incompatible offices)
- SDCL 13-43-1 (no teacher may serve on same district's board)
- SDCL 13-43-12, 13-43-16 (additional teacher definitions)
- SDCL 3-12-47(68) (retirement teacher definition)
Cases:
- Merrill v. Birhanzel, 310 N.W.2d 522 (S.D. 1981)
- Seymour v. Western Dakota Vocational Technical Institute, 419 N.W.2d 206 (S.D. 1988)
- Tarpo v. Bowman Public School District No. 1, 232 N.W.2d 67 (N.D. 1975)
- Otradovec v. City of Green Bay, 347 N.W.2d 614 (Wis. App. 1984)
Prior AG opinions referenced:
- 1976-77 AGR 8 (school board + state vocational board incompatible)
- 1981-82 AGR 171 (county commissions + Legislature)
- 1974-75 AGR 41 (state board of education + local school boards)
Source
Original opinion text
OFFICIAL OPINION 95-03
Lead/Deadwood School District.
Dear Mr. Carr:
As legal counsel to the Lead/Deadwood School District, and as legal counsel to the Black Hills Special Services Cooperative, you have requested an opinion regarding the following factual situation.
FACTUAL SITUATION:
The Lead/Deadwood School District (District) is a member of the Black Hills Special Services Cooperative (Cooperative). The Cooperative is a cooperative education service unit and legal entity as defined by statute. SDCL 13-5-31. In addition to being a member of the Cooperative, the District also contracts for certain services to be performed by the Cooperative.
Two vacancies on the District Board of Education were filled at a recent election. One board Member-Elect (Member-Elect) is an employee of the Cooperative.
The Member-Elect is contractually employed and paid by the Cooperative as the Assistant Director of the Developmental Disabilities Division. In this position, the Member-Elect will have some contact with students and teachers from the District. The Cooperative conducts an autism clinic composed of a team of evaluators for the identification of students with autism. The Member-Elect is a psychometrist in the team evaluating process. The Member-Elect also participates and conducts psychological evaluations on students enrolled in the Cooperative's developmentally disabled program. These psychological evaluations are conducted under three-year review standards required by federal and state special education regulations.
The Member-Elect does not supervise any District personnel or any public education employees. The only employees supervised by the Member-Elect are Cooperative employees. In her capacity with the Cooperative, however, it is highly likely that the Member-Elect would give advice and counsel to teachers of the District who are working with developmentally disabled students.
In addition, the District has some students in the developmentally disabled program operated by the Cooperative. These students, together with other students outside of the District, are taught and supervised by Cooperative certified staff employees and Cooperative aides. The Cooperative-certified staff employees and Cooperative aide employees are supervised by the Member-Elect, and subject to her counsel and direction.
The Member-Elect is responsible to and is supervised by the Director of the Developmental Disabilities Division of the Cooperative, who in turn is responsible to the Director of the Cooperative. The Member-Elect is not under the supervision, direction or control of the District or any employee of the District, and receives no compensation or payment directly from the District for the services performed by the Cooperative. The District does, however, pay the Cooperative for services rendered.
Based upon the foregoing factual situation, you have asked the following question:
QUESTION NO. 1:
Does SDCL 13-43-1 prohibit the Member-Elect from simultaneously serving on the school board and being employed as Assistant Director of the Cooperative's Developmental Disabilities Division?
This request raises on its face another question, which I will also deal with in this opinion so that this matter may be comprehensively addressed:
QUESTION NO. 2:
Does either the common law doctrine of incompatibility or SDCL 13-7-3 prohibit a person from simultaneously fulfilling the functions of District board member and Cooperative employee?
IN RE QUESTION NO. 1:
You first ask whether SDCL 13-43-1 prohibits the Member-Elect from simultaneously serving as a school board member and as an assistant director of the Cooperative's developmental disabilities division. SDCL 13-43-1 provides as follows:
No person employed to teach or to draw public money as a teacher may serve as a board member in the same school district.
This statute does not directly prohibit the Member-Elect from serving on the school board. However, the term "teacher" is defined at SDCL 3-12-47(68) (concerning the state retirement system), as follows:
'Teacher,' any person who has a valid teacher's certificate issued by the state of South Dakota, who is in the employ of a public school district, and shall also include the certified teachers employed by the human services center, South Dakota developmental center - Redfield, state penitentiary, division of education, state training school, school for the deaf, school for the visually handicapped, crippled children's hospital and school, public nonprofit special education facilities, adjustment training centers certified by the department of human services and public financed multi-district education programs.
The Member-Elect is indeed employed by a "public financed multi-district education program." Your request does not indicate whether she holds a valid teacher certificate issued by the State. I would note, however, that to the extent that she has contact with students of the Lead-Deadwood School District she is, according to the described functions, fulfilling the role of a special education teacher. Although not employed directly by the District, public funds of the District are paid to the Cooperative. Thus, the Member-Elect draws public money for her functions; if she is a certified teacher, it is my opinion that she is "drawing public money as a teacher."
This opinion is not free from doubt (among other things, there are other definitions of "teachers," see SDCL 13-43-12 and 13-43-16). On balance, however, it is my opinion that SDCL 13-43-1 prohibits the Member-Elect from simultaneously holding the positions of Board member and Cooperative employee or officer. Further, I note that I do not rest my conclusion as to incompatibility solely upon this statute, as set out below.
IN RE QUESTION NO. 2:
The next issue is whether the offices of school district member and assistant director of developmental disabilities division of the cooperative, or employment as an assistant director for the cooperative, are incompatible under statute or common law. SDCL 13-7-3 provides as follows:
No 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.
This statute appears to prohibit the simultaneous holding of two offices that are incompatible with one another.
In addition, there is a common law doctrine of incompatibility with broader application. A person may not, under the common law, hold two positions that are incompatible. In Tarpo v. Bowman Public School District No.1, 232 N.W.2d 67, 71 (N.D. 1975), the North Dakota Supreme Court stated as follows:
Two offices or positions are incompatible when one has the power of appointment to the other or the power to remove the other, and if there are many potential conflicts of interest between the two, such as salary negotiations, supervision and control of duties and obligations to the public to exercise independent judgment.
Id. at 71. This doctrine extends to positions of public employment, as well as to public offices. Otradovec v. City of Green Bay, 347 N.W.2d 614, 616 (Wis. App. 1984).
The position described in the Cooperative appears to constitute a "public office," as opposed to mere employment. First, the South Dakota Supreme Court implied in Merrill v. Birhanzel, 310 N.W.2d 522 (S.D. 1981) that teachers are "officers." There is also an extensive discussion of public office versus public employee in Seymour v. Western Dakota Vocational Technical Institute, 419 N.W.2d 206 (S.D. 1988). The lead opinion in that case, holding that a vocational instructor, farm supervisor, and department head was not an "officer," had the vote of only one justice. One justice deemed himself disqualified, and the remaining three justices stated, although somewhat briefly and obliquely, that they believed that the department head was, in fact, an officer. (Concurrences of Justices Henderson, Morgan, and Sabers, 419 N.W.2d at 209-210.)
On balance, I believe that the Member-Elect's position as an assistant director and supervisor makes her a public officer of the Cooperative. I will thus analyze incompatibility based both upon the statute and upon the common law doctrine. The question is one of incompatibility of the offices or the employment.
A cooperative educational service unit is established pursuant to an agreement between participating school districts, each of which is entitled to have at least one school board member on the governing board of the cooperative unit. SDCL 13-5-32.1(2). Control of the cooperative is vested in the participating districts through such appointments. Id. All members of the Lead-Deadwood School District Board, therefore, have input into the practices of the Cooperative. The District therefore also has control over the funding source for the Cooperative. This Office has previously opined that because the State Board of Vocational Education might have to act on a funding request for a multi-district board, the positions of school board member and State Board of Vocational Education member were inconsistent. In addition, one could not serve on the multi-district board and also on the State Board of Vocational Education. 1976-77 AGR 8.
In my view, the facts that the District has input into, and partial control over, the Cooperative, and that the District at least partially controls its funding, create an incompatibility in the exercise of independent judgment by a school board member where such judgment would have an influence over the member's employment. See also 1981-82 AGR 171, opining that county commissions were controlled by the Legislature, and one may not simultaneously serve both; and 1974-75 AGR 41, opining that the Office of State Board of Education and local school boards are incompatible, and stating that incompatibility arises when one office is in some sense subordinate to the other.
The role of local school boards in setting up, funding, authorizing, and continuing a cooperative educational service unit amounts to substantial control over it and its officers and employees. One may not simultaneously exercise this substantial control as a local school board member and also be an officer or employee of the substantially controlled governmental unit.
Based upon the above, it is my opinion that the offices of school board member and officer or employee of a cooperative educational services unit are incompatible. In my view, only one of these positions may be held by any one person.
MWB:CME:nan