April 19, 1989

Terry C. Anderson, Director
SD Legislative Research Council
State Capitol
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 89-10

Filling vacancy on LRC Executive Board

Dear Director Anderson:

You have requested my official opinion on the following issue:

FACTS:

SDCL 2-9-2 provides for a fifteen-member Executive Board of the Legislative Research Council. Two of the members, the Speaker of the House and the President Pro Tempore of the Senate, are ex officio members.

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

QUESTION:

If one of these ex officio positions becomes vacant, can the Executive Board fill the vacancy before a legislative session?

SDCL 2-9-2 provides:

The state legislative research council shall have an executive board, to be known as the executive board of the legislative research council, which shall consist of fifteen members, as follows: six members from the senate and seven members from the house, to be elected by a majority vote by their respective legislative bodies before close of each regular session of the Legislature held in odd-numbered years, and ex officio the president pro tempore of the senate and the speaker of the house elected in such regular session. Each senator and each representative serving on the executive board, including each ex officio member, shall serve until a new executive board has been selected at the next such regular legislative session; provided, however, that no senator who is not reelected to the senate and no representative who is not reelected to the house of representatives, shall serve as a member of the board beyond the closing day of the term to which he was elected. When the Legislature is not in such regular session, the number of senate and house members on the executive board shall remain constant, and any vacancy then occurring shall be filled by the remaining board members of that legislative body affected. No board member, excepting ex officio, shall serve more than three successive terms.

Review of the statute reveals that the Executive Board does consist of 15 members. Six members are from the Senate and seven members are from the House. These thirteen members are elected by a majority vote of their respective legislative bodies. Two additional members are members ex officio. These are the President Pro Tempore of the Senate and the Speaker of the House of Representatives. Thus two categories of members are established, regular members and members ex officio. Other than the method of selection there appears to be no statutory distinction between a regular member and an ex officio member.

In State ex rel. Aurora Co. v. Circuit Court 5th Judicial Circuit, 268 N.W.2d 607 (S.D. 1978), the South Dakota Supreme Court addressed a situation where a required notice to the State Board of Equalization was served upon the Commissioner of Revenue, an ex officio member of the State Board of Equalization. The ex officio member served as secretary of the board but without voting powers. See SDCL 10-2-4 as it then read. The assertion was made that service of the notice upon the ex officio member of the board did not satisfy the requirement of service upon a board member. The Court defined "ex officio member" as "one who is a member by virtue of his title to a particular office without the necessity of a further warrant or appointment." 268 N.W.2d at 609. The Court went on to say that unless their powers are restricted, ex officio members are vested with the full power and authority of a regular member. The Court noted that it was conceivable that an entire board or commission might be made up of ex officio members. The Court then noted "It has been the common practice of the South Dakota Legislature to deprive ex officio members of the right to vote in board decisions." 268 N.W.2d at 610. The Court concluded by stating that if the Legislature had intended some further restrictions upon the ex officio member it would have so stated and in the absence of such restrictions an ex officio member is a full member for all purposes.

Based upon the plain words of the statute and the judicial construction of the phrase "ex officio member" in the State of South Dakota, it is my opinion that the two ex officio members of the Executive Board of the Legislative Research Council differ from regular members only in the method of their selection.

I turn now to the matter of filling vacancies. It appears to be the intention of the Legislature that the number of Senate and House members on the Executive Board remain constant. In order to accomplish this purpose the statute provides that "any vacancy then occurring shall be filled by the remaining board members of that legislative body affected." (Emphasis supplied.) I take the phrase "any vacancy" to be all inclusive and not to admit of any exceptions. In other words, there is no intention that a vacancy in an ex officio member's position be treated differently from any other vacancy. The South Dakota Supreme Court has indicated that ex officio members are indistinguishable from regular members except in the manner of selection, unless the Legislature provides otherwise. In this case there is no legislative restriction upon ex officio members of the Executive Board of the South Dakota Legislative Research Council. Therefore it is my opinion that the remaining Board members of the affected legislative body may fill any vacancy arising while the Legislature is not in session regardless of whether that vacancy is for an ex officio or regular member.

Respectfully submitted,

ROGER A. TELLINGHUISEN
ATTORNEY GENERAL

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