December 28, 1994

Patrick M. Ginsbach, Esq.
Shannon County State's Attorney
906 N. River St., Rm. 301
Hot Springs, SD 57747

OFFICIAL OPINION NO. 94-15

Membership at county commission meetings

Dear Mr. Ginsbach:

You have requested an official opinion from this Office based upon the following factual background:

FACTS:

Shannon County has a five-person board of county commissioners. The board's meetings are held in Hot Springs, which represents an average travel distance of seventy-eight miles one way for each commissioner. Since it is a five commissioner board, three commissioners are required to form a quorum.

QUESTIONS:

1. Are the commissioners authorized to handle commission business if there is no quorum present, or must they continue to reschedule meetings until a quorum is present, regardless of how many trips it takes?

2. If the answer to Question No. 1 is "yes, they must reschedule meetings," do the members of the commission have any options?

IN RE QUESTION NO. 1:

A thorough examination of the South Dakota Code shows that no statutes related to county commissions specifically address any requirement that a quorum of county commissioners be present to conduct business. SDCL 2-14-15, however, generally addresses the matter for a wide range of public entities. It states, "Words giving a joint authority to three or more public officers or other persons are construed as giving such authority to a majority of them unless it is otherwise expressed in the act giving the authority." Consequently, as an initial point, at least a "majority" of the county commis- sioners ("public officers") must be present to conduct any official action.

The next logical issue is the number of votes necessary to make an official decision, once a quorum is present. Again, the statute requires a "majority" vote of the "public officers" (commissioners) in order to exercise their "joint authority." In Official Opinion No. 87-18, my predecessor examined the seven-member State Library Board. He determined that a quorum of that board "consists of four duly appointed and acting members" and, further, "there must be at least four affirmative votes in order for the Board to take any official action." See also Official Opinion No. 89-34. Thus, I conclude that three members of the county's five-member board must be present to form a quorum and, further, three must vote in agreement in order to take any official action.

The answer to your first question is "Yes, meetings must be rescheduled absent a quorum."

IN RE QUESTION NO. 2:

The problem faced by the Shannon County Board of Commissioners is not unique. In response to similar travel problems faced by many public boards and commissions, SDCL 1-25-1 now authorizes such meetings to be held by teleconference. The statute addresses, among various situations, "the official meetings of boards . . . created by statute." In addition to authorizing such meetings by teleconference, the statute also outlines particular details to be followed in order to make such meetings official and legal. I suggest that the public meeting teleconference provisions be utilized as necessary by the Shannon County Board of Commissioners and, further, that the Board adhere strictly to the requirements of the statute.

Respectfully submitted,

MARK BARNETT
ATTORNEY GENERAL

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