June 10, 1988
Mr. Jerry L. Siegel, Manager
East Dakota Water Development District
524 Seventeenth Avenue
Brookings, South Dakota 57006
Official Opinion No. 88-25
Water Development District Elections
Dear Mr. Siegel:
You have requested an official opinion from this office in regard to the following factual situation.
FACTS:
Water Development Districts were created by a special 1984 session of the South Dakota Legislature. Under SDCL 46A-3B-1 director terms are staggered and directors are elected to four year terms. Thus, every two years, half of the director terms of office expire. This year, five of our nine directors' terms expire. Nominating petitions were filed for only two of the five director areas.
Based upon these facts, you have asked the following questions:
QUESTION:
1. Knowing that no one has filed a petition to replace three of our directors whose terms expire in 1988, does the District Board, under SDCL 46A-3B-9 have the power to declare a vacancy? If so, when?
2. If existing directors in the expiring director terms officially continue to serve beyond December 31, how long would they continue as director? If they serve only one additional year, how would the primary election required under SDCL 46A-3B-6 be handled next year in the event more than two directors filed petitions for a particular office? If they serve two additional years, seven of our nine directors' terms would expire in 1990. Serving the remainder of the four year term appears to be the most workable.
3. The same questions regarding director terms in number 2 above need to be answered if existing directors in expiring director offices resign after December 31 or if they refuse to serve and you determine the District Board has the power to declare a vacancy. How long would directors who replace them serve?
IN RE QUESTION NO. 1.
Your first inquiry is whether the Board of Directors for the water development district have the power to declare a vacancy for those three director positions for which no candidates have filed in the upcoming general election. My answer to your first question is NO.
SDCL 46A-3B-9 provides as follows:
Directors shall take office on the first day of January of the year following their election, or not later than sixty days after election in the case of a special election. Vacancies that may occur on the water development district board of directors, unless otherwise provided in chapters 46A-3A to 46A-3E, inclusive, shall be filled by elective action of the remaining directors from among candidates proposed by nominating petitions signed by at least twenty-five eligible voters in the director area for which a vacancy exists.
Before the mechanism to fill a vacancy may be utilized, there must be a vacancy to fill. What constitutes a vacancy is defined by statute. SDCL 3-4-1 states:
Every office shall become vacant on the happening of any one of the following events before the expiration of the term of such office:
(1) The death of the incumbent;
(2) His resignation;
(3) His removal from office;
(4) His failure to qualify as provided by law;
(5) His ceasing to be a resident of the state, district, county, township, or precinct in which the duties of his office are to be exercised or for which he may have been elected;
(6) His conviction of any infamous crime or of any offense involving a violation of his official oath;
(7) Whenever a judgment shall be obtained against him for a breach of his official bond.
This office has on many occasions stated the position that no vacancy is created simply because no one files as a candidate for the office. Here you have three director positions for which there are presently no candidates; if that state of affairs continues, no one will be elected to the office in the upcoming general election. That does not, however, create a vacancy either before, or after the general election. AGR 75-101; 1965-66, p. 89; 1957-58, p. 34. 1943-44, p. 412.
The reason there is no vacancy is that "so long as there is an incumbent lawfully authorized to exercise the powers and duties which pertain to it," an office is not vacant. Noel v. Cunningham, 68 S.D. 606, 5 N.W.2d 402, 403 (1942). That general rule of law has been codified by the legislature, and is found at SDCL 3-14-1, which provides:
Except when otherwise expressly provided, every lawful incumbent of any public office, with a definite term, upon the expiration of such term shall continue to discharge its duties until his successor shall have been elected or appointed and has qualified, and shall be entitled to receive the prescribed compensation of such office during the time he shall so discharge its duties.
Thus, the current incumbents in the three director offices are entitled to hold over in office until their successors are duly elected and qualified. AGR 77-37. No vacancy exists by statutory definition and the Board has no authority to declare a vacancy, simply because there are no candidates. My answer to question number 1 to NO.
IN RE QUESTION NO. 2:
Anticipating that the incumbents would hold over if no election is held for those offices, you next asked for what period of time those directors would continue to hold office. Pursuant to SDCL 46A-3B-1 a director's term of office is four years. You asked whether the incumbent holds over for the full four year term, or some shorter period of time. In my opinion, the incumbents would hold over for two years from the expiration of their current terms, assuming at that time their successors are duly elected and qualified to complete the terms.
Basically, two options present themselves. District directors are elected for four year terms, with the elections falling in years in which general elections are scheduled. Then, it is possible to conclude either that incumbents would hold over until the next general election in 1990, or that they would hold over until the expiration of the four year term, following the general election in 1992.
This office has, on prior occasions, determined that appointees to a vacancy serve only until the next general election, not the full term he was appointed to succeed. See, e.g., AGR 79-7; 75-74; 72-34. Language in Noel v. Cunningham, 68 S.D. 606, 5 N.W.2d 402 (1942), would appear to support that proposition. That determination also is consistent with the general policy to fill vacancies in elective offices at an election as soon as practicable after the vacancy occurs. State ex rel. Rearick v. Board of Commissioners of Lyman County, 34 S.D. 256, 145 N.W. 548 (1914). See also, State ex rel. Jackson v. Kerkow, --- S.D. ----, 141 N.W. 377 (1913). The basis for such a construction lies in the language of SDCL 3-4-6 which provides that appointments "continue until the next general election at which the vacancy can be filled...."
Our Supreme Court recently examined that language and agrees that it meant "the next election at which it is provided by law that the officer may be elected whose office has become vacant." Kane v. Kundert, 371 N.W.2d 172, 1775 (S.D.1985). See also, State ex rel. McGee v. Gardner, 3 S.D. 553, 54 N.W. 606 (1893). Both of those decisions are based upon terms of office specified in the constitution. The holdings of these two cases are not inconsistent with what this office has concluded was the import of SDCL 3-4-6. The question, as pointed out by the court in Kane v. Kundert, is when an election to fill the office can lawfully be held.
Although the cases and opinions discussed above relate to appointments to fill an existing vacancy, their reasoning applies with equal force to the question of how long an incumbent may hold over pursuant to SDCL 3-14-1. The statute says that the incumbent continues until his successor is duly elected and has qualified. The legislature has not provided for any special election of district directors, absent a vacancy. SDCL 46A-3B-9. Thus, a successor will not be elected until a general election.
While it is true that approximately one half of the district's directors are up for election at each general election, and therefore it would be possible to have elections for seven of nine offices in 1990, I am of the opinion that such an approach is required by the interpretation consistently given to the statute.
Accordingly, it is my opinion that incumbents would continue to hold over and serve for two years, and that at the 1990 general election, their successors would be elected to serve the two years remaining on the terms.
IN RE QUESTION NO. 3.
Your last question contemplates that the incumbent does not desire to hold over, and resigns after the expiration of his current term. As was discussed above, resignation would create a vacancy pursuant to SDCL 3-4-1(2) which could be filled in accordance with SDCL 46A-3B-9. For those reasons discussed in my response to your second question, it is my opinion that a director selected to fill such a vacancy would serve until his successor is elected at the next general election and thereafter qualifies.
Your related question concerning an incumbent who refuses to hold over, and also refuses to resign, is more troublesome. The oath of office set forth at SDCL 3-1-5 provides that to qualify for any civil office, the person elected affirms "faithfully to discharge the duties of his office," in this case, district director. Although the incumbent was only elected for a specific term, SDCL 13-14-1 provides that the incumbent of any public office "shall continue to discharge its duties until his successor shall have been elected or appointed and has qualified...." If an incumbent does not wish to continue serving as provided by statute, it seems to me that the burden is on that person to alter the status quo, presumably by resigning. Refusing to perform the duties of an office does not, of itself, create a vacancy in the office, at least under the statute.
Should an incumbent refuse to hold over, and also refuse for whatever reasons, to resign, the question becomes whether there are alternatives available to insure that the board can operate at full strength. Obviously, those persons represented by such a director are entitled to have a director represent their views on the board.
One possibility that might be considered is an action to remove the director from office. See AGR 1931-32, p. 337. SDCL 3-16-1 provides:
Where any duty is or shall be enjoined by law upon any public office, or upon any person holding any public trust or employment, every intentional omission to perform such duty, where no special provision shall have been made for the punishment of such delinquency, is a Class 2 misdemeanor.
Intentionally refusing to perform the duties of the office could well constitute misconduct, malfeasance or nonfeasance. SDCL 3‑17‑6 states:
Any officer of any local unit of government may be charged, tried, and removed from office for misconduct, malfeasance, nonfeasance, crimes in office, drunkenness, gross incompetency, corruption, theft, oppression, or gross partiality.
The procedure for such an action is set forth in SDCL ch. 3-17. I express no opinion as to whether the facts you related are sufficient to warrant such an action. That is a decision you would have to reach after careful review of the pertinent facts with the district's legal counsel and the state's attorney. I simply point out that it is an option to consider.
It may also be possible for the board to conclude that the director has abandoned the office.
Abandonment of employment by a public employee must be total and absolute, and must be under such circumstances as clearly to indicate an absolute relinquishment. Moreover, the officer should manifest a clear intention to abandon the office and its duties, and such intention may be inferred from conduct. If the acts and statements are such as clearly indicate absolute relinquishment, a vacancy is thereby created without the necessity of a judicial determination.
63A Am Jur 2d, Public Officers and Employees, § 178, at 800-01.
Mere absence from office may not be sufficient to demonstrate abandonment; abandonment is a question of intent. See Smith v. Reid, 60 S.D. 311, 244 N.W. 363 (1932); AGR 1965-66, p. 89. It might be argued that such conduct is sufficient to show a resignation, implied by the conduct. Again, this is a matter the board should carefully examine with its attorney in light of the particular factual setting.
In summary, it is my opinion that an appointee to a vacancy resulting from resignation or removal would serve until his successor is elected and qualified after the next general election, and a person so elected would serve the two years remaining on the term.
Respectfully submitted,
Roger A. Tellinghuisen
Attorney General
