July 27, 1977

Mr. R. Greg Bartron 
State's Attorney 
Codington County Courthouse 
Watertown, South Dakota 57102

Official Opinion No. 77-63

Termination of veteran employee

Dear Mr. Bartron:

You have requested an opinion on the following fact situation:

FACTS: 

Mayor of city appoints X, a veteran, to be director of a city landfill operation.  Thereafter and within the scope of the appointment, the city council creates a city environmental health board.  X is somewhat under the auspices of the newly created city environmental health board and is therefore not a “head of a department.”  When X comes up for reappointment, Mayor delegates authority to fire X to the city environmental health board and X is notified of his termination of employment by said board. Additionally, X's position is filled by another individual who is not a veteran.  City contents that X's position has been eliminated by virtue of the fact that the duties assigned to X's successor has been expanded or altered.

In connection with the foregoing factual situation, you have asked the following questions:

QUESTIONS: 

1.  Did the Mayor's delegation of the authority to the city environmental health board to fire X constitute an unlawful delegation of power in light of the Mayor's initial appointment of X? 
    
2.  Did the Mayor of the city violate SDCL 3-3-4 and statutory provisions relating thereto in causing X to be fire and replacing X with an individual not a veteran?

IN RE QUESTION NO. 1:

Pursuant to revised Ordinance 11.0411 of the City of Watertown, the landfill supervisor “shall be employed by, and shall be under the direction and supervision of the board of health.”  Under the terms of this ordinance, the Mayor of Watertown possesses no authority to hire or discharge the supervisor of the sanitary landfill.  The Mayor, in delegating the apparent power to discharge the supervisor, in reality, had no such powers to delegate after passage of revised Ordinance 11.0411.  Because the city health board is charged with the supervision of the city landfill, it is within the purview of its responsibilities to discharge or employ the landfill supervisor.  The fact that the Mayor initially appointed the supervisor does not alter the fact that the health board subsequently obtained authority from the city council to discharge the supervisor of the landfill.  Thus, the board clearly had the authority to discharge the individual appointed earlier by the Mayor.

IN RE QUESTION NO. 2:

Because the Mayor did not conduct the actual discharge, nor did he have the authority to do so, he was not in violation of SDCL 3-3-4.  A problem, however, arises when the same question is asked of the city health board's action when viewed in light of SDCL 3-3-4.  That statute states: 
    
No person holding a public position by appointment or employment, and belonging to any of the classes of persons to whom a preference is herein granted, shall be removed from such position or employment unless replaced by another person of a class to whom preference is herein granted, except for incompetency or misconduct shown after a hearing, upon due notice, upon stated charges, and with the right of such employee or appointee to a review by writ of certiorari.  The burden of proving incompetency or misconduct shall rest upon the party alleging the same.

Considering the fact that the discharged employee is a veteran and it is not alleged in the facts that he was discharged due to misconduct or incompetency, the contention of the city that the supervisor's duties have been altered or expanded subsequent to the discharge of the employee is unpersuasive and does not negate the intent of the Legislature to protect persons of the discharged employee's class.  It is my opinion that a city cannot subvert the intent of SDCL 3-3-4 by attempting to merely shift and change the duties of the position.  If this were allowable, SDCL 3-3-4 would have no real effect and veterans protected thereby would have no substantive protection.  I cannot interpret laws in a way which would make the statute a useless and meaningless remedy.  The contention of the city that SDCL 3-3-4 is not applicable because duties have been changed is not, in my opinion, a reasonable interpretation of the statute's effect.

Respectfully submitted,

William J. Janklow
Attorney General

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