May a Crooks city alderman simultaneously serve on the city common council and on the municipal planning and zoning commission? The common council hears appeals from planning and zoning decisions, so the alderman would in effect be voting on appeals from his own commission decisions.

Plain-English summary

The City of Crooks had a structural problem. An alderman on the common council also held a seat on the city planning and zoning commission. The two bodies had an institutional relationship: the common council heard appeals from the decisions of the planning and zoning commission, so the alderman would be voting on appeals from his own commission's decisions. That setup prompted the mayor's question.

Mayor Anderson asked AG Mark Barnett the underlying legal question: does South Dakota law allow this dual service in the first place?

Barnett's answer was a clean "no." He started with SDCL 9-14-16, the municipal dual-office statute: "No mayor, alderman, commissioner or trustee may hold any other office under the municipality while an incumbent of such office." The text is broad. It does not require a finding of conflict, financial interest, or actual impropriety; it imposes a categorical bar.

The key analytical move was whether membership on a municipal planning and zoning commission is an "office under the municipality." Barnett applied the South Dakota Supreme Court's test from Griggs v. Harding County and Seymor v. Western Dakota Vocational Technical Institute:

[A] position is a public office when it is created by law, with duties cast on the incumbent which involve an exercise of some portion of the sovereign power and in the performance of which the public is concerned, and which also are continuing in their nature and not occasional or intermittent; while a public employment, on the other hand, is a position which lacks one or more of the foregoing elements.

Barnett noted that the planning and zoning commission is a creature of statute, with members appointed by the mayor and confirmed by the governing body (SDCL 11-6-4; SDCL 11-4-11). Based on his examination of the powers the Legislature grants such commissions, he had "no doubt" that membership constitutes an office under the municipality, and he concluded that it "satisfies all of the elements" of the Griggs public-office test. He did not walk through the prongs one by one; he stated the conclusion.

Barnett's bottom line: planning commission membership is a "public office under the municipality," so SDCL 9-14-16 prohibits an alderman from also serving on the commission. The answer was "No."

The opinion did not address how to resolve the existing dual service: whether the alderman could be removed from one position, whether his past commission votes were affected, or how a transition should be handled. Those questions are not in the opinion.

Currency note

This opinion was issued in 1994. 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. Check current SDCL chapter 9-14 and current case law before relying on the specific section references here.

What the opinion meant at the time

For Mayor Anderson and the Crooks city council, the opinion ended any ambiguity about the existing dual service. The alderman had to choose one position and resign the other. The choice was the alderman's; the legal disqualification was automatic regardless of which way he chose.

For other South Dakota municipalities, the opinion applied the Griggs v. Harding County test for distinguishing "public office" from "public employment" in the dual-office context. A council member or trustee weighing simultaneous service on an appointed body could look to the same three elements (created by law, exercises sovereign power, continuing duties) the AG relied on here.

For city attorneys, the opinion confirmed that SDCL 9-14-16 imposes a categorical bar: where a second municipal position is a public office, an alderman cannot hold both.

For citizens watching small-town governance, the opinion held that the same person could not hold two municipal offices at once, even in a small community.

Common questions

Q: Can a South Dakota alderman also serve on the city planning and zoning commission?
A: No. SDCL 9-14-16 prohibits an alderman from holding any other office under the municipality, and the AG concluded that planning and zoning commission membership is such an office.

Q: What is the Griggs v. Harding County test exactly?
A: A 1942 South Dakota Supreme Court decision distinguishing "public office" from "public employment." A position is a public office when it is created by law, its duties involve an exercise of some portion of the sovereign power, and those duties are continuing rather than occasional. A public employment lacks one or more of those elements. Barnett also cited Seymor (1988) for the same test.

Q: What was the concern in Crooks that prompted the question?
A: The common council hears appeals from the decisions of the planning and zoning commission. An alderman who also sat on the commission would be voting, as a council member, on appeals from his own commission's decisions.

Q: Did the opinion decide what happens to the alderman's past commission votes, or how to unwind the dual service?
A: No. The opinion answered only whether the dual service is allowed under SDCL 9-14-16 (it is not). It did not address removal from office, the validity of past votes, or how a transition should be handled.

Background and statutory framework

South Dakota municipal governance is structured around three main bodies. The legislative body is the common council (aldermen) or board of trustees, elected by the voters. The executive is the mayor (or in commission-form cities, the commissioners). Various appointed bodies handle specialized functions: planning and zoning, board of adjustment, library boards, park boards, and others. The appointed bodies are typically mayoral-nominated and council-confirmed.

SDCL chapter 9-14 governs municipal officers and their qualifications, removal, vacancies, and dual-office limitations. SDCL 9-14-16's broad prohibition reflects a longstanding policy choice that elected legislative officials should not simultaneously hold appointed offices in the same municipality.

SDCL chapter 11 governs municipal planning and zoning. SDCL 11-4 (municipal planning) and SDCL 11-6 (municipal zoning) together establish the commission structure, hearing procedures, and council-versus-commission relationship.

Mayor Anderson asked the AG to confirm whether an alderman could sit on both the common council and the planning and zoning commission. Barnett's opinion concluded that SDCL 9-14-16 does not allow it.

Source

• Landing page: https://atg.sd.gov/OurOffice/OfficialOpinions/opinionhtml.aspx?id=130

Original opinion text

OFFICIAL OPINION NO. 94-07

Concurrent Municipal Offices

Dear Mayor Anderson:

You have requested an official opinion from this Office concerning the following factual situation:

FACTS:

An alderman on the Crooks common council also sits as a member of the municipal planning and zoning commission. It is his intent to maintain his membership on both public bodies and to vote on the matters which come before each body. The common council hears appeals from the decisions of the planning and zoning commission.

Based upon these facts, you have asked the following question:

QUESTION:

May an alderman sit on both the common council and the municipal planning and zoning commission?

IN RE QUESTION:

The answer to your question is found primarily in SDCL 9-14-16, which provides in pertinent part:

No mayor, alderman, commissioner or trustee may hold any other office under the municipality while an incumbent of such office.

A planning and zoning commission is a creature of statute, with its members appointed by the mayor and confirmed by the governing body of the municipality. SDCL 11-6-4; SDCL 11-4-11. Based upon my examination of the powers granted to such commissions by the Legislature, I have no doubt that membership on the planning and zoning commission constitutes an "office under the municipality." The South Dakota Supreme Court has identified what constitutes a "public office" by use of the following standards:

It may be stated, as a general rule deducible from the cases discussing the question, that a position is a public office when it is created by law, with duties cast on the incumbent which involve an exercise of some portion of the sovereign power and in the performance of which the public is concerned, and which also are continuing in their nature and not occasional or intermittent; while a public employment, on the other hand, is a position which lacks one or more of the foregoing elements.

Griggs v. Harding County, 3 N.W.2d 485, 487 (S.D. 1942); Seymor v. Western Dakota Vocational Technical Institute, 419 N.W.2d 206 (S.D. 1988). Clearly, membership on a municipal planning and zoning commission satisfies all of the elements listed by the court and therefore is a public office.

In my opinion, SDCL 9-14-16 prohibits an alderman from serving as a member of the municipal planning and zoning commission. My answer to your question is "No."

MB:HHD:nan