March 29, 1977

Mr. John P. Abbott 
City Attorney 
1414 Cedar Street 
Brandon, South Dakota 57005

Official Opinion No. 77-24

Compensation of city attorney

Dear Mr. Abbott:

You have requested an opinion based on the following factual situation:

FACTS: 

On May 10, 1976, the City Council of the City of Brandon, South Dakota, appointed John P. Abbott to the position of City Attorney. The appointment was made by Resolution of the City Council.  As City Attorney, John P. Abbott is to perform those assignments given to him by the City Council or Mayor. All assignments are at the discretion of the City Council or Mayor.  For compensation, the City Attorney receives $30 per hour for legal services rendered.  There is no retainer or salary paid or payable to John P. Abbott other than the hourly rate paid whenever legal services are rendered.

The City of Brandon is presently considering the issuance of bonds pursuant to SDCL 9-4-3 and will need legal counsel to assist in the procedure.

Based on the above factual situation you ask the following question:

QUESTION: 

Can the City Attorney contract with the City of Brandon to perform all legal and fiscal services necessary in connection with the issuance by the City of Brandon of negotiable bonds pursuant to SDCL 9-43 for a fee of the entire cost of the project (based on a percentage)?

The relevant statutes provide as follows: 
    
9-14-22. When required by the governing body or any officer of the city, the city attorney shall furnish an opinion upon any matter relating to the affairs of the city or the official duties of such officer; conduct the prosecution of all actions or proceedings arising out of the violation of any ordinance; and perform such other professional services incident to his office as may be required by ordinance or directed by the governing body. 
    
9-14-23. If the governing body shall require the city attorney to render assistance or perform services in connection with any revision of the ordinances, or the issuance of municipal bonds of any kind, or if the city attorney shall represent the city in any action or proceeding in the county, circuit or Supreme Court, or in any federal court, or before any federal administrative board or commission he shall receive such compensation in addition to his salary as may be agreed upon between the governing body and him.

In my opinion SDCL 9-14-23 authorizes the governing body of a municipality to contract with the city attorney for payment of additional compensation for “extraordinary” services.  Services performed in connection with “the issuance of municipal bonds of any kind” were specifically added by Chapter 219 of the 1967 Session Laws.  Therefore, it must be concluded that such services are an exception to the general duties of a city attorney as stated in SDCL 9-14- 22.

If I correctly understand the contract between yourself and the City of Brandon, a fee of $30 per hour is established therein as the compensation for legal services rendered to the city.  However, specific assignments are made by formal action of the governing body as the need arises.  SDCL 9-13-23 specifically provides for negotiation of fees in addition to the regular compensation when the services requested involve municipal bond issues.

Therefore, the $30 per hour fee is not conclusively binding for such services and another method of compensation would be permissible.  The answer to your question is yes.

Respectfully submitted,

William J. Janklow
Attorney General

WJJ:LLV:rw