February 3, 1976
Mr. Gene Paul Kean
State's Attorney
Minnehaha County Courthouse
Sioux Falls, South Dakota 57102
OFFICIAL OPINION NO. 76-13
Procedure for resignation of aldermen (SDCL 9-8)
Dear Mr. Kean:
You have requested an opinion based on a rather lengthy factual situation herein condensed as follows:
The town of Dell Rapids in Minnehaha County, South Dakota, governs itself under the aldermanic form of government as prescribed by SDCL 9-8.
On December 17, 1975, during a regular meeting of the city council, one of the aldermen in Dell Rapids presented his written resignation to the governing body. The resignation was duly placed on file. No further action was taken on the resignation at that particular meeting.
At the next meeting of the city council on January 6, 1976, immediately after reading the minutes of the December 17, 1975, meeting, the mayor of Dell Rapids stated that he accepted the resignation of the alderman. At that point he was interrupted by the city regarding action on another matter. This was taken and no further reference was made at this session to the resignation. The alleged resigned alderman was present at the January 6 meeting.
Several items of city business were conducted and the alderman who was alleged to have resigned was allowed to vote on three items of business which appeared before the city council that evening. After one of the items of business was voted on, three other aldermen turned in their resignations to the governing body. No action was taken by the Board as a body that night as to the three aldermen who resigned on that evening.
Since that time, it has been the opinion of the mayor of Dell Rapids that the alderman who resigned on December 17, 1975, is no longer an elected office holder. In the interim, all four of the aldermen who turned in their resignations went to the city finance manager and took back the written resignations which they had filed. The three aldermen who resigned on January 6, 1976, were accepted back as part of the city council. The mayor did not consider their positions as vacated. The mayor only considers the position of the one alderman who resigned on December 17th as vacated.
Based upon the above factual situation and several attached supporting documents, you have asked the following specific questions:
(1) To whom does an alderman submit a resignation under the aldermanic form of government?
(2) Is the mayor the proper party to accept a resignation from an alderman under the aldermanic form of government?
(3) Is a full vote of the other aldermen in the city council under the aldermanic form of government necessary before a resignation is effective which resignation has been tendered by an elected alderman?
The questions you have raised do not appear to be specifically answered in the provisions of SDCL 9-8 or anywhere in the law. Although the matters of resignations, vacancies, and the procedures regarding the same are addressed by statute, there is no direct reference to a situation involving aldermen. For example, SDCL 3-4-2 provides for the tender of a resignation for six classes of public employees, both elected and appointed, but municipal employees are not included as one of the classes.
However, since it is a well established legal principle that a public officer has the right to resign unconditionally (19 A.L.R. 39), an attempt to ascertain legislative intent with respect to such resignations must be made.
The relevant statutes in SDCL 9-8 provide:
9-8-5. The council shall be the judge of the election and qualification of its own members. It shall determine its own rules of procedure, punish its members for disorderly conduct, and, with the concurrence of two-thirds of the aldermen elected thereto, may expel a member.
Any alderman who shall have been convicted of bribery shall thereby vacate his office.
9-8-6. If any vacancy shall occur in the office of alderman, such vacancy shall be filled by the council until the next regular election by the appointment of some qualified person from the ward in which such vacancy exists.
It is my opinion that the logical implication to be drawn therefrom places the council, which consists of all the aldermen and the mayor (SDCL 9-8-4), in the position of determining and administering personnel policy. Pursuant to SDCL 9-8-5, the council may adopt policy and procedure relating to resignations not inconsistent with or contrary to existing law. Therefore, it is my further opinion that a resignation should be submitted to the common council. The time, place and manner of presentment are of secondary importance to the facts that notice of resignation is actually communicated to all members of the council. In the factual situation you state: "On December 17, 1975, during a regular meeting of the city council, one of the aldermen in Dell Rapids presented his written resignation to the governing body. The resignation was duly placed on file." Further, you have attached as a supporting document a copy of the minutes of said meeting which reflects that the mayor and all the aldermen were present.
For purposes of discussion in this opinion, your questions numbered two and three will be considered together. In essence, the question you ask is when a submitted resignation, which does not specify a date, becomes effective. It is interesting to note that the South Dakota statutes dealing with resignation of certain officers are not uniform. Subdivision (4) of SDCL 3-4-2 provides that elected county officers' resignations take effect when filed with the county auditor. A formal acceptance is unnecessary. On the other hand, subdivision (6) of SDCL 3-4-2 states that resignations of all appointed public officers are to be made to the body, board, court or officer that appointed them without specifying an effective date. In State ex rel. Jackson v. Kerkow, 31 S.D. 491, 141 N.W. 377, it was held that "In accordance with the rule generally adopted in the United States, the resignation of an appointive officer is not effective, in the absence of specific statutory provisions, until accepted by the appointive power." However, later in the same opinion, the Court makes reference to SDCL 3-4-2(6) and states:
Some cases widely hold that, where the term of office of an appointive officer extends until his successor is appointed and qualified, a resignation, even though accepted, is not effective to terminate the authority of the officer until the successor is appointed and qualified, in order that public interests may suffer no inconvenience by reason of the want of public servants. But it is not necessary in this case to go to that extent. We hold that the resignation of the city auditor could not become effective, at least, until it was presented to the city council.
Although the facts in that case are distinguishable from those in your opinion request inasmuch as the former involves an appointive official, an argument can be advanced for the proposition that in all cases presentment of the resignation to the proper body is most significant. In addition, because of the failure of the statutes to specifically address the issue at hand, the particular facts must be scrutinized in an attempt to determine the intent of the parties involved. In the factual situation presented, the alderman submitting his resignation at the December 17, 1975 meeting did not leave the meeting. In fact, he continued to participate in and vote on matters presented. In addition, he was also present at the subsequent meeting on January 6, 1976, and was permitted to vote on all issues then acted on. Therefore, in order to give logical meaning and effect to the actions and expressions of all the parties involved, it is my opinion that the presentment of the resignation was not bona fide and was not so treated by the common council. To interpret a different intent therefrom would be totally inconsistent with the action taken by the common council.
To the extent applicable, I agree with the reasoning of the Illinois Supreme Court which is summarized as follows:
However, public policy requires that there be certainty as to who are and who are not public officers. Otherwise, there is doubt and confusion which leads to needless litigation . . . . In the event the rights of creditors or public convenience require that there should be no vacancy in the office from which the incumbent seeks to resign, the affirmative action is required of the officer receiving the resignation in order to preclude it from bcoming effective. Absent such affirmative action, the resignation becomes effective either forthwith or upon the future date specified therein, as the case may be, when received by or filed with such officer. People ex rel. Adamouski v. Kerner, 19 Ill. 2d 506, 167 N.E. 2d 555 (1960).
Therefore, for the reasons above stated, it is my opinion that the resignation of an alderman becomes effective, in the absence of an otherwise specified time and an expression of intent to the contrary, upon presentment to the common council. The council, pursuant to SDCL 9-8-6, should then act promptly to fill the vacancy to avoid the confusion and uncertainty referenced' in the Kerner case. As to what is or is not "presentment," a factual determination need be made in each individual case of purported resignation.
Admittedly, the statutes herein considered are subject to an interpretation resulting in a different conclusion from that reached. However, it is my judgment that the intent and purpose of the resignation and vacancy statutes, in the absence of more specific legislation, is best effectuated hereunder.
Respectfully submitted,
WILLIAM J. JANKLOW
ATTORNEY GENERAL
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