February 15, 1983

Mr. Max A. Gors 
City Attorney 
City of Murdo 
Post Office Box 232 
Pierre, South Dakota 57501

Official Opinion No. 83-09

County referendum concerning cooperative law enforcement agreement between Jones County and the City of Murdo

Dear Mr. Gors:

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

FACTS: 

The city of Murdo and Jones County entered into a Joint Powers Agreement effective January 1, 1983, to provide contract law enforcement whereby Murdo turned over its city police force, law enforcement equipment and law enforcement budget to Jones County and the Jones County sheriff agreed to provide law enforcement for the City of Murdo as well as the rest of Jones County. 

On or about January 7, 1983, certain citizens of Jones County submitted a petition signed by fifty-one electors requesting that the County's action of entering into the Agreement be referred to a vote of the people of Jones County. 

The Jones County Commissioners originally scheduled a special election February 22, 1983.  However, the special election has now been rescheduled to February 3, 1983.  Publication of notice of the special election is required for two successive weeks prior to the election.  The special election will cost an estimated $2,000.

SDCL 7-18A-15 provides: 

Any ordinance or resolution adopted by a board of county commissioners may  be referred to a vote of the qualified voters of the county by the filing of a petition signed by a number of qualified voters equal to at least five percent of the total votes cast for governor in the county in the last gubernatorial election, except such ordinances and resolutions as may be necessary for the immediate preservation of the public peace, health or safety, or for the support of the county government and its existing public institutions.  (Emphasis added.) 

The City of Murdo takes the position that the Joint Powers Agreement whereby Jones County agrees to provide law enforcement to Murdo is a contract for the immediate preservation of the public peace, health or safety and is not referrable.

SDCL 7-18A-16 provides: 

A petition to refer an ordinance or resolution subject to referendum may be filed with the auditor within twenty days after its publication.  The filing of such a petition shall require the submission of any such ordinance or resolution to a vote of the qualified voters of the county for its rejection or approval. 

SDCL 7-18A-16 appears to be mandatory.  The City of Murdo takes the position that if the Joint Powers Agreement is referrable, the submission of the referendum petition withdraws the party's authority to rescind the agreement.  Once a referendum is called, the question is for the people, not  for the city and the county. Although it is assumed by the County Commission that the petitioners oppose the agreement, it is equally reasonable to assume that supporters of the agreement also signed the referendum petition to get an election to approve the concept.

Based upon the foregoing facts you have asked the following questions:

QUESTIONS: 

1.  Is the County's participation in the Joint Powers Agreement to provide contract law enforcement to Murdo referrable under SDCL 7-18A-15? 

2.  If the County Commission and the City Council rescind the Joint Powers Agreement, is the special election still necessary? 

3.  May signers of the referendum petition withdraw their signatures?  If so, how and when must they do so?  How many signers must withdraw their signatures to eliminate the need for a special election?

IN RE QUESTION NO. 1:

As SDCL 7-18A-15 makes clear, ordinances and resolutions adopted by boards of county commissioners are subject to the approval of county voters, with the exceptions set out in the statute.  The question of whether the resolution  authorizing the law enforcement agreement between the City of Murdo and Jones County is exempt from a referendum turns upon whether the Joint Powers Agreement is necessary for '. . . the immediate preservation of the public peace, health or safety, . . .'  (Emphasis added.)

No evidence has been presented to indicate that the City of Murdo, and its citizens, would be immediately in danger if the Law Enforcement Agreement was not immediately effective.  There is no indication that any delay necessitated by referral to the voters will unduly endanger the public peace and safety of the citizens of Murdo.  The contract between Murdo and Jones County is not, I believe, a contract for the immediate preservation of the public peace, health or safety.  Therefore, it is my opinion that Jones County's participation in the Joint Powers Agreement to provide contract law enforcement to Murdo is referrable under SDCL 7-18A-15.

IN RE QUESTION NO. 2:

SDCL 7-18A-16 is mandatory.  Once a petition has been filed with the auditor, the ordinance or resolution must be submitted to the voters of the county.  The filing of the petition obviates the party's authority to rescind the agreement.  Therefore, it is my opinion that if the County Commission and the City Council attempt to rescind the Joint Powers Agreement, the attempted  rescission will be of no effect and the special election would still be necessary.

IN RE QUESTION NO. 3:

SDCL 7-18A-16 as noted above, requires that the petition for referendum be filed within twenty days after publication of the ordinance or resolution.  The South Dakota Supreme Court in Healey v. Rank, 82 S.D. 54, 58, 140 N.W.2d 850, 852 (1966), noted that '. . . signers of a petition which must be filed on or before a time specified cannot withdraw their names after the expiration of the time allowed for filing.'  As the twenty day period in SDCL 7-18A-16 has passed, it is my opinion the referendum petition signers may not withdraw their signatures.

The fact that the signatures may not be withdrawn eliminates the necessity of answering the remaining parts of Question No. 3.

Respectfully submitted,

Mark V. Meierhenry
Attorney General