September 2, 1977

Mr. Lyle Wendell 
Secretary of Revenue 
Capitol Lake Plaza 
Pierre, South Dakota 57501

Official Opinion No. 77-81

Removal of directors of equalization, SDCL 10-3-5

Dear Mr. Wendell:

You have requested my official opinion on the question below:

QUESTION: 

What agency is responsible for making the final determination as to the removal of a director of equalization?

Chapter 87, Laws of 1974, set up a plan for the certification of assessors and directors of equalization.  In addition to requiring a certificate from the Department of Revenue, it required that each assessing or appraising official demonstrate to the satisfaction of the department on a recurring basis, that he or she was capable of performing the designated duties of the office.  No person is qualified to serve a second or subsequent term unless the department shall have issued a certificate of renewal (SDCL 10-3-5).  By the same act, tenure was increased from two years, terminable by the county commissioners on thirty days' notice, to a five year term with termination only for cause as provided in SDCL 3-17-6, “upon recommendation of the appointing governing body after hearing upon not less than ten days' notice. . . .”

SDCL 3-17-6 provides: 
    
Any officer of any local unit of government may be charged, tried, and removed from office for misconduct, malfeasance, nonfeasance, crimes in office, drunkenness, gross incompetency, corruption, extortion, oppression, or gross partiality.

So far as the Department of Revenue is concerned under the assessor certification program, it is my opinion that your duties are limited to examining and certifying applicants for initial appointment or renewal.

The board of county commissioners may dismiss a director of equalization without cause during the first year of his term, but not thereafter.  Such removal may only be accomplished for cause as provided in 3-17-6, set forth above, upon recommendation of the county commissioners, the appointing governing body.

South Dakota Codified Laws 3-17 is the general removal statute for public officials.  Local officials are covered in 3-17-6 through 3-17-11.  The proceeding is in the nature of a special proceeding, brought in the name of the state by the state's attorney of the county in which the officer charged resides, upon his own relation, or by the Attorney General.  It is conducted and determined by the judge of the circuit court as further provided in 3-17. The only addition to those provisions is the method of initiation of the action.  Instead of the state's attorney or Attorney General, although they will still file the formal charges, it is the appointing governing body who makes the recommendation which precedes the hearing.

In a somewhat similar instance, my predecessor held that members of the State Board of Health cannot be removed either by the State Board of Health or by the Governor since they were county officials and were removable as other county officers generally.  1933-34 AGR 609.  I concur in the logic of that holding as applicable to the question you present.

Respectfully submitted,

William J. Janklow
Attorney General

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