June 2, 1977

Mr. Al Asher 
Administrator, South Dakota 
  Retirement System 
Sahr Building 
Pierre, South Dakota 57501

Official Opinion No. 77-47

Voting rights of acting commissioner at Board of Trustees meetings

Dear Mr. Asher:

You have requested an official opinion from this office based upon the following factual situation:

FACTS: 

I hereby request an opinion on the interpretation of SDCL 3-12-48(8) which provides for the Commissioner of Personnel to be a member of the Board of Trustees. 
    
Mr. Robert Mullally has recently resigned as Commissioner of Personnel and Governor Kneip has appointed Dorothy Howe as Acting Commissioner of the Bureau of Personnel.

Based on the above facts you ask the following question:

QUESTION: 

Does Dorothy Howe, Acting Commissioner of Personnel, have a vote at any future Board of Trustees meetings?

SDCL 1-33-10 provides: 
    
The bureau of personnel shall be administered by a commissioner to be appointed by the Governor with the advice and consent of the Senate, and who shall serve at the pleasure of the Governor.  No person shall be appointed as said commissioner who has less than four years of administrative experience, at least two of which shall be in personnel management.

The last paragraph of section 9 of article IV of the South Dakota Constitution provides as follows: 
    
The Governor shall have power to nominate and make interim appointments requiring Senate confirmation during recess of the Legislature except that such nominations and interim appointments shall extend only to the end of the Governor's term or until acted upon by the Legislature.

It is my understanding that Governor Kneip has appointed Dorothy Howe as Acting Commissioner with full authority to exercise the powers and responsibilities of that office.  When viewed together with the above-cited provisions of law, this fact suggests to me that the Governor intended Mrs. Howe to have full authority to execute the office of Commissioner of Personnel to the maximum extent possible under law.  In my opinion the law allows the Governor to make such interim appointments, requiring Senate confirmation and have those nominees act and function in their full capacity until such time as the Governor's term is over or until disapproved by the State Legislature.

Accordingly, the answer to your question is yes.  In my opinion, Dorothy Howe, as Acting Commissioner of Personnel, does have a vote at future Board of Trustees meetings.

Respectfully submitted,

William J. Janklow
Attorney General

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