March 8, 1983

Mr. Rodney J. Steele 
State's Attorney 
Kingsbury County Courthouse 
DeSmet, South Dakota 57231

Official Opinion No. 83-12

Husband as deputy

Dear Mr. Steele:

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

FACTS: 

The Kingsbury County Board of Commissioners has enacted a Policies and Procedures Resolution regarding County employees.  One of the provisions prohibits the employment of a husband and wife in the same office. 

The newly-elected Auditor wishes to appoint her husband as Deputy Auditor.  This is in violation of the County Policies and Procedures Resolution.

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

QUESTION: 

Can the newly elected Kingsbury Auditor appoint her husband as deputy in contradiction to the Kingsbury County Policies and Procedures Resolution?

SDCL § 7-7-20 provides: 

If in the judgment of the board of county commissioners it shall be deemed necessary for the prompt and accurate dispatch of business in the office of the county treasurer, county auditor, county coroner or register of deeds that deputies or clerks be employed therein, it shall by resolution fix the number of deputies or clerks to be employed, the time of employment, and compensation which they shall receive.  Such compensation shall be paid monthly by warrant on the general fund.

SDCL § 7-7-21 provides: 

The officer in whose office such deputies or clerks are employed shall have the sole power of appointing the same or removing them at pleasure, which appointment or removal shall be by a certificate in writing, and any deputy or clerk so appointed shall before entering upon the duties of his office, take and subscribe the oath or affirmation required by the Constitution, which oath or affirmation shall be endorsed on the certificate of appointment and filed as otherwise provided by law.  The deputy or clerk shall furnish an official bond in such amount and with such surety or sureties as his principal may deem proper, which bond shall be attached to the certificate of appointment and oath of office.  (Emphasis added.)

In view of the above statutes and 1941-42 A.G.R. 353, it is my opinion that a county auditor may appoint her husband as deputy county auditor notwithstanding a County Policy and Procedures Resolution to the contrary.

Respectfully submitted,

Mark V. Meierhenry
Attorney General