March 18, 1975
Mr. Clyde E. Saukerson
Deputy State's Attorney
Davison County
Mitchell, South Dakota 57301
OFFICIAL OPINION NO. 75-51
Statutory construction of SDCL 11-2-2 and 11-2-3
Dear Mr. Saukerson:
You have requested an official opinion from this office as to whether or not county commissioners qualify as ex-officio members of the county planning commission and if so if they are entitled to vote on that commission. In addition, you raised the question of whether or not county commissioners can appoint themselves as members of the county planning commission under the provisions of SDCL 11-2-2. The final question you ask concerns what county officials are in fact embraced by the term "administrative officials" as used in SDCL 11-2-3.
1. Can county commissioners qualify as ex-officio members of the county planning committee under SDCL 11-2-3?
SDCL 11-2-3 provides:
The terms of each of the appointed members of the county planning commission shall be for five years; provided, that when the planning commission is first appointed, the lengths of the terms shall be varied so that no more than one-third of the terms shall expire in the same year. Any appointed member of the county planning commission may be removed for cause, after hearing prior to the expiration of his term by a majority of the elected members of the board of county commissioners. Administrative officials of the county may be appointed as ex-officio members of the commission.
The crux of answering the question you here raise focuses on interpretation of "administrative officials." In the case of People v. Salsbury, 134 Mich. 537, 96 N.W. 936, 940 (1903), the court found that an administrative officer was "ministerial" in which nothing is left to discretion.
The duties and powers of the county commissioners as set forth in SDCL 7-8-20 obviously involve discretion. This being the case, the county commissioners do not qualify as ex-officio members. Not being members, it is obvious there is no need to answer the question about their right to vote on the planning commission.
With respect to your question of what officials are in fact embraced by the term "administrative officials" as used in SDCL 11-2-3, it is my opinion that the test to be followed must be whether or not that county official is vested with "discretion" in the performance of his duties. County officials are "administrative officials" if the laws relating to their offices vest in them the power to use discretion in making policy decisions. It would appear to me that officials which merely keep records or carry out nondiscretionary functions which are prescribed by statute or by rule, would fit within this definition of "administrative officials."
2. Can the county commissioners appoint themselves as members of the county planning commission pursuant to SDCL 11-2-2?
SDCL 11-2-2 provides:
For the purpose of promoting health; safety, morals and the general welfare of the county, the board of county commissioners of each county in the state, shall appoint a commission of three or more members, the total membership of which shall always be an uneven number and at least one member of which shall be a member of the board, to be known as the county planning commission. Such commission shall also be the county zoning commission.
The language of SDCL 11-2-2 appears to contemplate the possibility that more than one county commissioner may be appointed by the county commissioners to the county planning commission. The fact that at least one commissioner is by statute required to be a member of the county planning commission, seems to undercut the argument that two positions are incompatible. The answer to this question therefore is YES.
Respectfully submitted,
WILLIAM J. JANKLOW
ATTORNEY GENERAL
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