Conflicts of interest are difficult to define, and even more difficult to prove when attempting to invalidate votes of a local Board of Adjustment. If you're ever looking to invalidate a vote of a local board member, you should contact an attorney to determine if the board member's actions rise to the level of a constitutional or statutory conflict of interest.
Conflicts of interest may raise procedural due process implications under the United States Constitution. The constitutional right to due process includes a fair and impartial consideration by a local governing board. Actions by local officials may create constitutional problems when there is a financial interest in the decision or when there are certain proceedings arising from the official's previous interactions. There may also be a due process issue in rare instances, even when there is not a direct pecuniary interest.
In South Dakota, there are also statutes which relate to conflict of interest issues for local officials. South Dakota law provides that a conflict of interest exists in two situations. The first is when an official has a direct pecuniary interest in the matter before the governing body, and the second is when at least two thirds of the governing body votes that the official has a conflict of interest. If a conflict of interest exists under either of these reasons, the local official is not allowed to participate on that voting matter. South Dakota law also creates a presumption that a public official is objective and can act fairly, which can only be overcome by a clear and convincing evident that the officer demonstrates prejudice or an unacceptable risk of bias. Any of these situation are difficult to identify let along prove, and if you suspect a conflict of interest among you local governing body, you should contact a lawyer to discuss those concerns.
This tip of the week is brought to you by Holborn v. Deuel County Board of Adjustment, 2021 SD 6, which was issued by the South Dakota Supreme Court on February 10, 2021. In that case, the South Dakota Supreme Court considered whether certain board members on the Deuel County Board of Adjustment had conflict of interest in determining whether to allow special exemption permits for two wind emery systems in Deuel County. After looking at the applicable constitutional due process concerns and the South Dakota statues at issue, the South Dakota Supreme Court determined that none of the board members had disqualifying conflicts of interest in the matter.