STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

March 30, 1973

Larry F. Hosmer
States Attorney, Yankton County
Yankton, South Dakota 57078

OFFICIAL OPINION NO. 73-08

County retirement plan for employees.

Dear Mr. Hosmer:

You have requested an opinion on the following factual situation:

The County of Yankton wants to adopt a retirement plan for its employees. Said plan would include highway and courthouse personnel, but would not necessarily include elected officials.

Under the proposed plan Yankton County would pay into a fund to be administered by an insurance company a specified sum each month. The employee would not be required to match such amount or pay anything into said fund. The employee would then be eligible to receive retirement benefits, presumably at age 65, in an amount contingent upon the amount of time employed.

The county has already advertised for bids to interested parties, and bids have been received from the Equitable and Northwestern National Life Insurance Companies.

You have asked the following specific question:

Is Yankton County prohibited by law of this state from establishing a retirement plan for its employees?

You set forth your contention and arguments as follows:

We contend Yankton can do so. The recent amendment to the State Constitution referred to by some as the Home Rule Amendment, passed at the November election changed the status of local units of government. Prior to the passage of the amendment, local government could do only those things specifically authorized by statute. The new amendment reversed the situation and authorizes local governments to do anything not prohibited by statute. If this is not the case, there were false statements made by proponents of the amendment prior to the election.

Section 2 of Article IX of the South Dakota Constitution reads as follows:

Any county or city or combinations thereof may provide for the adoption or amendment of a charter. Such charter shall be adopted or amended if approved at an election by a majority of the votes cast thereon. Not less than ten per cent of those voting in the last preceding gubernatorial election in the affected jurisdiction may by petition initiate the question of whether to adopt or amend a charter.

A chartered governmental unit may exercise any legislative power or perform any function not denied by its charter, the Constitution or the general laws of the state. The charter may provide for any form of executive, legislative and administrative structure which shall be of superior authority to statute, provided that the legislative body so established be chosen by popular election and that the administrative proceedings be subject to judicial review.

Powers and functions of home rule units shall be construed liberally.

Our Supreme Court stated in State ex rel. Jacobsen v. Hansen (1955) 75 S.D. 476, 68 N.W. 2d 480:

A county in this state is a creature of statute and has no inherent authority. It has only such powers as are expressly conferred upon it by statute and such as may be reasonably implied from those expressly granted.

Pearson v. Johnson, 59 S.D. 16,3 238 N.W. 644; South Dakota Employers Protective Association v. Poage, 65 S.D. 198, 272 N.W. 806; State ex rel. Ball v. Board of County Commissioners of Beadle County, 68 S.D. 237, 300 N.W. 832. As the representative of the county having general control over its property and the management of its business and fiscal affairs, SDC 12.0691, the county board can exercise authority in these respects only in so far as statutes confer power upon the county.

It is my opinion that until such time that a county adopts a home rule charter as provided in Section 2, Acticle IX of the South Dakota Constitution, the holding set forth in the above Supreme Court opinion will be applicable. I am unaware of any specific statutes that authorize the county to establish an independent retirement plan for its employees, therefore, it is my opinion that the answer to your question is YES.

Respectfully submitted,

Kermit A. Sande
Attorney General