June 14, 1977

Mr. Todd D. Hauge 
Custer City Attorney 
Custer, South Dakota 57730

Official Opinion No. 77-52

Compensation of city attorney

Dear Mr. Hauge:

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

FACTS: 

I have submitted a bill to the City Council of the City of Custer billing the City for time I had spent on research on various municipal issues. Briefly, the issues included:  validity of a lease agreement that the City of Custer has with Lutheran Homes, validity and effect of a lease that the City of Custer has with the Custer Golf Course Association, research of the present building code that the City of Custer has, and research of a recommended building code, research of the zoning ordinances of the City of Custer and how they regulate and affect the status of trailer houses within the municipal corporate limits, research of case law as it pertains to the zoning ordinances and how they affect trailer houses, and research pertaining to municipal elections and balloting.  The bill was approved by a majority of the City Council and paid, but was contested by one council member on the basis of SDCL 9-14-23.

Based on the above factual situation you have asked the following question:

QUESTION: 

Does SDCL 9-14-23 allow for the payment of additional compensation for the research items enumerated in the above factual situation?

SDCL 9-14-23 provides: 
    
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.

The legal services for which a city attorney may receive compensation in addition to his salary are expressly set out in the above statute.  They include work performed in:  (1) revision of municipal ordinances, (2) issuance of any municipal bonds, or (3) representing the municipality in the circuit or higher court or in any federal administrative hearing.

The compensation of the city attorney for all other duties required of him by SDCL 9-14-22 and other statutes is determined as follows: 
    
9-14-28. Except as otherwise specially provided, the governing body of every municipality shall fix and determine by ordinance the amount of salaries and compensation of all municipal officers and the times at which the same shall be paid.

In my opinion, the express inclusion of the items enumerated in SDCL 9-14-23 serves as an exclusion of all others and properly expresses the intent of the Legislature with regard to salaries of city attorneys.  Rehurek v. Rapid City, 65 S.D. 542, 275 N.W. 859. (See also 1955-56 AGR 8.)

The salary ordinance must, therefore, be so drafted as to specifically make provision for legal services which may be deemed extraordinary but which are not included in SDCL 9-14-23.

In my opinion, the answer to your question is no.  SDCL 9-14-23 does not authorize the payment of additional compensation for legal services of the specific nature enumerated in your factual situation.

Respectfully submitted,

William J. Janklow
Attorney General

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