September 13, 1982

Mr. John P. Billings 
Deputy City Attorney 
City Attorney's Office 
Box 435 
Vermillion, South Dakota 57069

Official Opinion No. 82-47

Appointment of Full Time Fire Chief

Dear Mr. Billings:

You have requested an Official Opinion from this office based on the following factual situation:

FACTS: 

The City of Vermillion is a first class city which operates under a city manager form of government.  The city presently has a volunteer fire department.  Under the terms of the ordinances of the city, the fire department elects a part time fire chief subject to approval by the City Council.  Although the fire department is a voluntary organization, the city, under its statutory authority, purchased fire fighting equipment.  A resolution has been introduced which authorizes the expenditure of tax funds for the hiring of a full time fire chief.  The resolution also provides that the fire chief shall be selected solely by the fire department.  The city has not adopted a civil service ordinance.

Based upon the above factual situation, you have asked the following questions:

QUESTIONS: 

1.  Does a municipality operating under a city manager form of government have the authority to hire a full time fire chief for a voluntary fire department?' 

2.  If the municipality has the power to hire a full time fire chief for a voluntary fire department can that person be selected solely by the members of the fire department?

IN RE QUESTION NO. 1:

There is no specific statutory provision which authorizes a municipality to hire a full time fire chief for its volunteer fire department.  However, in view of the fact that SDCL 9-33-13 allows a municipality to appropriate funds for the maintenance of a voluntary fire department, it seems clear that a municipality has the power to hire a full time fire chief for its volunteer fire department. Furthermore, SDCL 9-14-1 confers on cities the authority to appoint 'an auditor, treasurer, attorney, engineer, chief of police, policeman, and other such officers as may be provided for by ordinance.'  (Emphasis added.)  A previous Attorney General's Opinion has established that a fire chief may be considered an appointive officer.  See, A.G. Report 1931-32, p. 523.

IN RE QUESTION NO. 2:

The answer to this question is NO.  Under a city manager form of government  only the city manager has the power to appoint and remove officers and employees in the administrative service of the city. See, SDCL 9-10-13. 'There can be no appointment of an officer or employee in the public service without legal authority, express or implied, to make the appointment.' McQuillin Mun. Corp. §  12.70 (3rd Ed.).  This is not to say that a volunteer fire department can have no input in the selection of its fire chief.  That point is indicated by the following: 

But the selection of an officer or employee upon the recommendation of a business organization, for example, a chamber of commerce or other civic organization, is not a delegation of the power to appoint.  Nor does a requirement that the appointing authority choose from a specified number of recommended candidates constitute an unauthorized limitation on the power of appointment nor a delegation of a substantial portion of such power.

McQuillin Mun. Corp. §  12.72 (3rd Ed.).  In view of that, a volunteer fire department could recommend to the city manager who their preference is for fire chief, but it could not dicate to the city manager who the fire chief would actually be.  It should also be emphasized that your city's plan to provide for the hiring of the fire chief by resolution would be ineffectual. The establishment of a new city officer position must be accomplished by ordinance. See, SDCL 9-14-1.

Respectfully submitted,

Mark V. Meierhenry
Attorney General