May 10, 1985

Sheriff Don Holloway 
County of Pennington 
300 Kansas City Street 
Rapid City, South Dakota 57701-2889

OFFICIAL OPINION NO. 85-22

Sheriff's authority to remove deputies from his office at will

Dear Sheriff Holloway:

You have requested an official opinion from this office in regard to the following factual situation:

FACTS:

SDCL 7-12-10 provides: 

The appointment of each deputy, jailer and clerk shall be made by the board of county commissioners, on the recommendation of the sheriff, in writing, filed with the county auditor.  Such appointment may be revoked in the same manner.  Each deputy, jailer, clerk, as the case may be, shall qualify by subscribing the official oath and shall give such bond to the board of county commissioners for the discharge of their duties as the board of county commissioners may require.

SDCL 7-12-11 adds: 

The sheriff shall be responsible for the acts of each such deputy, jailer and clerk in the performance of the duties of his office, provided, however, that the sheriff may relieve any deputy, jailer or clerk of any or all official responsibilities and duties, summarily.

Based on the above facts, you have asked the following question:

QUESTION: 

Does a sheriff have the legal right to terminate a deputy on his own action, as opposed to submitting a written recommendation to the County  Commission who would then act thereon?

The above-cited statutes were enacted, in their present form, in 1963.  S.L. 1963, Ch. 40, §  4.  Up until then, the Sheriff always had the sole power to appoint and revoke appointments of his deputies.  In addition, the Sheriff was 'responsible for all the acts of such deputy or deputies in the performance of the duties of his office.'  S.L. 1917, Ch. 190, §  1; R.C. 1919, §  5966; SDC 1939, §  12.1009; S.L. 1955, Ch. 20.  In 1963, the power to appoint and revoke appointment of deputies, as well as jailers and clerks, was transferred to the County Commission.  S.L. 1963, Ch. 40, §  4.  In addition, though, a new clause was added onto the provision quoted above.  It now reads, 'The Sheriff shall be responsible for the acts of each such deputy, jailer, and clerk in the performance of the duties of his office, provided, however, that the Sheriff may relieve any deputy, jailer, or clerk of any or all official responsibilities and duties, summarily.  S.L. 1963, Ch. 40, §  4. (Emphasis added.)  Logic suggests that, if the Legislature had intended to take termination rights away from the Sheriff, it would simply have left the quoted provision alone.  It is thus my opinion that the Legislature intended to give the County Commission the authority to appoint deputies and revoke said appointments, while at the same time to continue to vest with the Sheriff the power to summarily relieve a deputy of all of his official duties.

I am of the further opinion that being relieved of all of one's duties  constitutes a termination of employment.  The word 'relieve' as used in '[T]he board reserves the right to relieve one teacher' is synonomous with 'remove.' Kennedy v. School District No. 1 of Snohomish County, 55 P. 567 (Wash. 1898).  By removing the deputy, the Sheriff effectively withdraws the county from the employment contract.  See Kennedy, supra.  As such, said contract is cancelled and there is no longer an obligation to remunerate the deputy.

Based on the foregoing, it is my opinion that a Sheriff has the legal right to terminate a deputy on his own action whenever he desires.

Respectfully submitted,

Mark V. Meierhenry
Attorney General