May 14, 1987
Mr. Don Holloway
Sheriff, Pennington County
300 Kansas City Street
Rapid City, SD 57701-2889
OFFICIAL OPINION NO. 87-17
Discharge of sheriff's deputies - overruling Official Opinion 85-22
Dear Sheriff Holloway:
You have requested my opinion concerning whether Attorney General's Opinion No. 85-22 relating to the authority of a sheriff to terminate employees remains a proper statement of the law in light of the South Dakota Supreme Court's opinion in Groseclose v. Bloom, 368 N.W.2d 572 (S.D. 1985).
Opinion 85-22 was an Opinion addressed to you as Sheriff of Pennington County and asked whether SDCL 7-12-10 and -11 give a sheriff the legal right to terminate a deputy's employment. That Opinion was rendered on May 10, 1985, and held that a sheriff did have such authority. On May 22, 1985, the South Dakota Supreme Court decided the Groseclose case concluding that the power of discharge is held by the county commissioners. In light of the foregoing, it is appropriate that a new opinion issue.
QUESTION:
As between a sheriff and a board of county commissioners, who has authority to employ and discharge employees in the sheriff's office, including deputy sheriffs?
APPLICABLE STATUTES:
SDCL 7-12-10 and 7-12-11 provide:
7-12-10. The appointment of each deputy, jailer and clerk shall be made by the board of county commissioners, on the recommendation of the sheriff, in writing, filed with the county auditor. Such appointment may be revoked in the same manner. Each deputy, jailer, clerk, as the case may be, shall qualify by subscribing the official oath and shall give such bond to the board of county commissioners for the discharge of their duties as the board of county commissioners may require.
7-12-11. The sheriff shall be responsible for the acts of each such deputy, jailer and clerk in the performance of the duties of his office, provided, however, that the sheriff may relieve any deputy, jailer or clerk of any or all official responsibilities and duties, summarily.
The question presented logically breaks down into at least three sub-questions.
First, who may hire deputies, jailers, and clerks within the Office of Sheriff? Based upon SDCL 7-12-10, it seems quite clear that the board of county commissioners has the hiring or appointment authority. This authority is, however, limited to hiring those individuals recommended in writing by the sheriff. In Rosander v. Butte County Commissioners, 336 N.W.2d 160 (S.D. 1983), the South Dakota Supreme Court reviewed a situation where the Butte County Sheriff recommended various employees to the Butte County Commissioners which proceeded to appoint all of the persons on the list save Ms. Rosander. Deputy Rosander attempted to get a Writ of Mandamus requiring the Butte County Commissioners to appoint her as deputy. The Court concluded that the word "shall" relating to appointments in SDCL 7-12-10 requires the board of county commissioners to exercise discretion. Because the power of appointment involved a discretionary act with the board, a Writ of Mandamus would not issue. Clearly, the rule from that case regarding appointment of employees for a sheriff is that the sheriff may recommend employees to the board of county commissioners; however, the ultimate employment decision is up to the board. Accordingly, my conclusion is that the authority to employ individuals within the office of sheriff lies with the board of county commissioners following a recommendation by the sheriff.
Second, who may discharge employees of the sheriff's office? In the Groseclose case, the sheriff attempted to terminate the employment of a chief deputy who had unsuccessfully challenged the sheriff at election. When that appeared not to work, Sheriff Bloom informed Deputy Groseclose that the position had been terminated. The South Dakota Supreme Court examined the application of SDCL 7-12-11 to the factual situation presented. Citing Rosander, supra: Wahl v. Moses, 339 N.W.2d 792 (S.D. 1983); and Walker v. Brule County Board of Commissioners, 337 N.W.2d 807 (SD. 1983), the Court concluded that SDCL 7-12-10 confers upon the board of commissioners general jurisdiction regarding hiring and firing of deputy sheriffs. The Court further concluded that the commissioners' final authority to terminate a deputy sheriff was not removed through the provisions of SDCL 7-12-11. Accordingly, it would appear that the authority to finally terminate employees within the office of sheriff is an authority held by the board of county commissioners. Third, what is the distinction between termination of employment and relieving an employee of all-official responsibilities and duties pursuant to SDCL 7-12-11? When the two statutes are read together in light of the South Dakota Supreme Court's opinions, it appears that a distinction is made between termination of employment and relieving an individual of official responsibilities and duties.
Obviously, a situation could arise where a sheriff determines that an employee is involved in criminal activity or has otherwise acted in a manner inconsistent with the duties of a sheriff's employee. Given the authority that jailers, deputy sheriffs, and others may have, such as access to prisoners, the carrying of weapons and the like, the sheriff must have authority to relieve the employee of all of these duties immediately, or in the words of the statute "summarily." This does not, however, mean that the person has been relieved of his employment, since that authority rests with the board of county commissioners. In fact, the existence of this "impartial" review of the employee's employment status can protect a sheriff from personal liability which might otherwise be imposed under 42 U.S.C. § 1983.
It is the clear trend in federal cases examining such § 1983 liability that public employees have certain property interests that attach to their continued employment. Once it has been determined by a court that a property interest in continued employment exists, even in the face of what are apparently "at-will" employment situations, due process must be followed in order to terminate this property interest. The minimum due process required is notice of alleged deficiencies and an opportunity to be heard in a meaningful hearing.
Given the present trends of the law, I would strongly urge all sheriffs to follow a procedure of providing notice of deficiencies to an employee they wish to terminate and then present the facts of the case to the board of county commissioners with an opportunity for the employee to be heard. Once the commissioners have exercised their discretion, so long as that discretion is not exercised in an arbitrary or capricious fashion, the employment can be terminated without fear of resulting liability. In effect, the statutes presently allow the sheriff to suspend the employee with pay pending a final determination by the board of county commissioners.
Accordingly, my answer to your question is that the authority to hire and fire employees within the office of sheriff resides in the board of county commissioners; however, this authority is limited to acting on recommendations by the sheriff. Since Official Opinion No. 85-22 is in conflict with this opinion, it is hereby overruled.
Sincerely,
Roger A. Tellinghuisen
ATTORNEY GENERAL
