April 14, 1988
Mr. Glenn Roth
Hutchinson County State's Attorney
P.O. Box 137
Olivet, South Dakota 57025
Official Opinion No. 88-11
County Extension Board adoption of nepotism policy
Dear Mr. Roth:
You have requested an official opinion relating to the following factual situation.
FACTS:
The State Extension Board has asked the Hutchinson County Extension Board to consider adopting a nepotism policy. The proposed policy provides:
When a county extension board member's immediate family member applies for a position offered by that specific county extension service, the county extension board member [shall] excuse himself/herself from any and all interview and/or selection processes. Furthermore, if the relative of a board member be selected and hired, the board member involved [shall] resign.
The policy sets forth that the rationale for this proposal comes from the board's realization that it is extremely difficult to supervise or evaluate the performance of an employee when immediate family members are involved. Conflicts of interest frequently occur in a family employer/employee relationship.
Based upon this factual situation, you have asked the following question:
QUESTION:
Does this type of nepotism policy, if adopted by a county extension board, discriminate against the board member and/or the board member's family member applying for a job?
The initial question raised by this proposal would seem to be whether the county extension board has the requisite authority to enact this type of nepotism policy. If the board does not have authority to enact this policy, the constitutionality of the proposed policy need not be addressed.
SDCL § 13-54-10 and § 13-54-11 are the controlling statutes as far as establishing county extension boards. § 13-54-10. provides:
The board of county commissioners of any county of this state is hereby authorized to establish and conduct cooperative extension work ...
§ 13-54-11 provides:
Immediately after the boards of county commissions have voted to establish cooperative extension work under the provisions of this chapter, they shall appoint a county extension board ... The membership shall be representative of the racial population mix in the county and of the various interest groups served by extension. The members of this board shall be appointed for a period of one year ...
These statutes, however, do not confer any express authority upon the board regarding recusal or removal of board members. While state extension work is carried out under the authority of the federal act dealing therewith contained at 7 U.S.C. § § 341 to 349, the federal act does not provide any authority for the adoption of this type of policy. See SDCL § 13-54-8.
It is a well established principle of law that courts will take a restrictive view of municipal power absent constitutional or statutory authorization. This principle is referred to as Dillon's Rule. Dillon's Rule basically provides:
... A municipal corporation possesses and can exercise the following powers and no others: first, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the accomplishment of the declared objects and purposes of the corporation--not simply convenient, but indispensable; fourth, any fair doubt as to the existence of a power is resolved by the courts against the corporation--against the existence of the power.
Bechtel v. City of Des Moines, 225 N.W.2d 326, 328 (1975). South Dakota has also adopted the theory espoused in Dillon's Rule. See Sioux Falls Municipal Employees Association, Inc. v. City of Sioux Falls, 89 S.D. 298, 233 N.W.2d 306 (1975).
SDCL § 13-54-10 authorizes county commissioners to establish and conduct extension work. SDCL § 13-54-11 authorizes county commissioners to appoint a county extension board to carry out that work. The statute sets forth requisite considerations for the appointments to the county extension board. Thereafter, the county extension board is merely conferred with the power to expend the monies appropriated by the board of county commissioners for extension work under SDCL § 13-54-13. The board is not granted any other powers. Thus, the power to disqualify or seek resignations of board members may not reasonably be implied from those powers expressly granted. State ex rel. Jacobsen v. Hansen, 75 S.D. 476, 68 N.W.2d 480 (1955).
It should be noted that regardless of the board's ability to adopt a nepotism policy, board members are, however, bound to comply with SDCL § 6-1-1 in regard to the prohibition from self-dealing by local officers. Assuming the board members do not have an improper motive or pecuniary interest in the hiring decision and supervision of immediate family members, they should be allowed to participate in such activities.
As a result of the foregoing analysis, it is unnecessary to determine whether this nepotism policy is discriminatory in its application because the county extension board does not have the requisite authority to adopt this policy. The South Dakota Legislature, however, would be an appropriate forum for the consideration and possible adoption for this type of policy.
Respectfully submitted,
Roger A. Tellinghuisen
Attorney General
