December 20, 1976
Mr. Al A. Asher, Administrator
South Dakota Retirement System
Department of Labor
216 East Capitol
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 76-122
Trustee membership of State Retirement Board
Dear Mr. Asher:
You have requested an official opinion from this office in regard to the following facts:
FACTS:
The South Dakota Retirement System recently held an election of its Board of Trustees, pursuant to SDCL 3-12-49 as amended by the 1976 Session Laws, Chapter 41. In this election, a classified employee of the State of South Dakota was mistakenly placed on the ballot for state employees, along with 10 qualified state employees and was the winner. In Attorney General Opinion 76-77 it was determined that a classified employee was not allowed to vote in this election.
The Board of Trustees currently has two state employee members, one of which did seek reelection to the board and was elected and the other board member choosing not to seek reelection.
Based on the above facts, you ask:
QUESTION:
What procedure should the Board of Trustees follow in determining what state employees shall serve as new members to the Board of Trustees of the South Dakota Retirement System?
As you have pointed out in your fact situation, classified employees are not represented on the Board of Trustees. Therefore, the classified employee mistakenly placed on the ballot cannot qualify for the Board. You also have indicated that this election was held to fill the two state government member positions on the board as outlined in SDCL 3-12-48(1), and that Mr. Ron Schreiner and Mr. Wesley Tschetter are presently elected to those positions. Mr. Schreiner won reelection and Mr. Tschetter chose not to run again.
SDCL 3-14-1 states:
Except when otherwise expressly provided, every lawful incumbent of any public office, with a definite term of office, upon the expiration of such terms shall continue to discharge its duties until his successor shall have been elected or appointed and qualified.
It is my opinion that SDCL 3-14-1 is the controlling statute and a codification of the general rule of law will recognize that an incumbent of an office will hold over after the conclusion of his term until the election and qualification of his successor.
Therefore, based upon the above statute, it is my opinion that Mr. Tschetter holds over until a successor is elected and qualified, or, if Mr. Tschetter resigns, that position is filled pursuant to SDCL 3-12-53.
Respectfully submitted,
WILLIAM J. JANKLOW
ATTORNEY GENERAL
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