According to today’s Rapid City Journal, former State Legislator Chuck Turbiville is planning on making himself busy this next year. Very busy:
Former state legislator and first-term Deadwood Mayor Chuck Turbiville says he will run for re-election for mayor in April while simultaneously seeking to return to the South Dakota House of Representatives in next fall’s general election.
“My campaign theme is ‘There is no substitute for experience,’” the 72-year-old mayor said.
Turbiville, who is in his final year of a three-year term as mayor, served in the state House from 2005-2012, before term limits forced him out. He said he would seek the District 31 seat currently held by Rep. Fred Romkema of Spearfish, who is facing the same situation as Turbiville three years ago.
and…
While seeking to return to the state Legislature, Turbiville said he also would run for a second term as mayor in Deadwood’s municipal election next spring.
“Absolutely I can do both,” he said. “There are so many things I’ve started as mayor that I want to complete.”
Mayor AND State Legislator? Someone must be a glutton for punishment.
You might think such offices are incompatible, but an Attorney General’s opinion claims it’s ok. But we have to go way, way back to 1949-1950 for the opinion, which isn’t on-line anymore.
The opinion is referenced by the South Dakota Municipal League in an extensive list they’ve compiled on compatibility, and incompatibility:
…an elected official cannot hold concurrent offices if such positions are incompatible. The major lines of delineation in this area have been made by the Attorney General. For example, the Attorney General has determined that there are essentially four instances when offices are incompatible. They are: 1) when there are statutory prohibitions; 2) when one is subordinate to the other; 3) when one has supervision over the other; and 4) when the duties of the two offices are conflicting. (AGR 1949-50, p.37)
However, the Attorney General has also determined that, while the determination of whether a person may hold two or more positions is usually based upon incompatibility or inconsistency, the question of incompatibility or inconsistency never arises when there is a special statutory prohibition. The rule that governs will change from situation to situation. (AGR 1959-60, p.45)
Positions which are compatible include the following:
1) Mayor and state’s attorney; (AGR 1907-08, p. 215)
2) Office of mayor and member of the board of county commissioners; (AGR 1949-50, p. 37)
3) Mayor and state senator; (AGR 1949-50, p. 358)
4) Treasurer of a school district and trustee of an incorporated municipality; (AGR 1949-50, p. 75)
5) Assessor and register of deeds; (AGR 1949-50, p.56)
6) Office of county commissioner and membership on the governing board of a municipality; (AGR 1929-30, p. 278)
7) Office of state’s attorney and city attorney; (AGR 1949-50, p. 331)
8) Municipality marshal and sheriff or deputy sheriff; (AGR 1953-54, p. 84)
9) Police magistrate and candidate for the state legislature; (AGR 1953-54, p. 292)
10) Office of county clerk of courts and city councilman; (AGR 1955-56 p. 68-9)
11) Office of register of deeds and mayor; (AGR 1955-56, p. 217)
12) Office of county sheriff and peace officer of a municipality within the county; (AGR 1955-56, p.420)
13) Appointed municipality treasurer and treasurer of a school district. (AGR 1959-60, p. 45)
14) No mayor, alderman, commissioner, or trustee in a municipality is disqualified from holding office as a result of holding any liquor license. (SDCL 9-14-16)
15) City council and county commission. (AG Opinion 88-24)
16) Any mayor, alderman, commissioner, or trustee may serve in a volunteer, unsalaried municipal position or provide any service for the municipality if the compensation for such service does not exceed $5,000 per calendar year. (SDCL 9-14-16.1)Positions which are incompatible include the following:
1) No mayor, alderman, commissioner, or trustee shall hold any other office under the municipality while an incumbent of any such office. No auditor or clerk may hold the office of treasurer in the municipality while an incumbent of such office. (SDCL 9-14-16)
2) A mayor may not be an attorney for a defendant in a criminal case for a crime committed within the municipality of which he is mayor. (State ex rel. Jones v. Taylor, 46 SD 354)
3) A city councilman may not be the defense attorney or counselor for a defendant charged with the violation of a municipal ordinance or a state law where the facts would also be a violation of the laws of his municipality. (AGR 1953-54, pp. 184-186)
4) Member of municipality board and janitor of a municipal building; (AGR 1932-34, p. 492)
5) County judge and city attorney; (AGR 1949-50, p. 133)
6) Member of a city council and municipal building, electrical, and plumbing inspector; (AGR 1955-56, pp. 105-106)
7) Member of city council and county high school board; (AGR 1949-50 page 75 and 1953-54, p.73)
8) Office of director of assessments and member of municipal governing board; (AGR 1955-56, p. 304)
9) County justice of the peace and the municipal chief of police; (AGR 1957-58, p. 116)
10) Municipality auditor and county auditor. (AGR 1959-60, p. 84)
11) Legislator and school board member. (AG Opinion No. 84-24)
12) Mayor and school board member of encompassing school district. (AG Opinion No. 85-23; Raymond v. Richardson, 6th Judicial Circuit, Sept. 18, 1985)
13) County director of equalization and school board member. (AG Opinion 86-6)Despite the guidance provided by the Attorney General and case law, conflict remains a confusing subject. If (and when) you experience a conflict issue please consult with your city attorney or contact the League at 800-658-3633.
It’s interesting that while Legislator and School Board member are incompatible, Mayor and Legislator are just fine. What’s the difference? For one, the Mayoral question came up in 1950, and the School Board question came up in 1984. Time and interpretation of the conflict can make a great deal of difference given the change in laws, and the change in Attorneys General. Some have gone for a broader interpretation, and some have been more narrow.
And AG opinions are just that – opinions. They don’t hold the force of law, but they are recognized as being a well researched legal brief. You can ignore it, but you can also take your chances in court against the people who did the extensive research on the friendly hint that you can or can’t do something.
In this case, the question hasn’t really been asked formally in 65 years. So, time, laws and circumstances may have changed enough where someone could take a closer look, and come up with a different answer.
Then there’s always the reasonable question as to why someone would want both? Are they that masochistic that driving a car into a brick wall isn’t sufficiently painful?
Eh, to each his own.
Ultimately, the issue could pose a significant question for any opponents to raise to the electorate, specifically whether or not they want to consolidate that much authority in one person. We might be a state small in population. But you might be able to find at least one other person who would take on one of the offices.
The Legislature should prohibit such a clear conflict of interest as this and hiring your son in law in state government.
Is Scott Fiegen in Dell Rapids doing the same thing?
Most states have rules against serving multiple forms and levels of government. Why would I expect SD to follow standard practices? More of the same.
The people of deadwood shouldn’t vote for him for either office. It’s a clear conflict. But then again SD officials wouldn’t know what what to with transparency and clearness if they were forced to do so. The house of cards would fall.
I looked into continuing my service on the Watertown School Board and simultaneously serve in the legislature. Both the school’s attorney and the AG office told me it would be a conflict of interest. My option was to take the issue to court to challenge the AG opinion. In the end, I opted to resign from school board the day following my election to the legislature. I miss school board, in particular the challenges of problem-solving at the local level, but I’m grateful to bring my experience to the House Education Committee. It’s all good
Fred: Thank you for doing the honorable thing!
Fred:
Why not serve in both capacities and let the AG make a decision whether to pursue the matter?
An AG’s opinion is neither binding nor determinative.
How about a 501(c)3 and a foreign private equity fund ? Conflict ?
Wait, Fred Deutsch sued the state to allow him to continue to collect compensation twice, even if it’s nominal, from the tax payers? Shameful. I’m glad you resigned one of the positions, but why even sue? What kind of a conservative are you that you? Suing government so that you can be part of two forms of government? Come on, man.
Obviously, you don’t have very strong reading skills… Fred was told that suing was an option. He chose to resign. Nice try, Kathy.
She’s still trying to explain how her priest ‘really did tell her’ Jesus was pro-choice.