June 7, 1988

Mr. Robert A. Warder 
City Attorney 
107 M. Street 
P.O. Box 10 
Hill City, South Dakota 57745

Official Opinion No. 88-26

Power to appoint municipal officers

Dear Mr. Warder:

You have requested an official opinion from this Office on the following question:

QUESTION: 

Who has the power to appoint municipal officers in municipalities governed by a mayor and common council?

Reference is made to SDCL 9-14-3 and 9-14-1.  SDCL 9-14-3 provides: 

All appointive officers of a municipality governed by a mayor and common council shall be appointed by the mayor with the approval of the council, and in other municipalities they shall be appointed by a majority vote of the members elected to the governing body, except as provided in the city manager law and subject to the provisions of the civil service applying to employees, policemen, and firemen.  [Emphasis supplied.]

SDCL 9-14-1, as amended in 1985, presently provides: 

The governing board of municipalities of the first class shall appoint an auditor, treasurer, attorney, engineer, chief of police, and such other officers as needed and provided for by ordinance.  The governing board of municipalities of the second and third class shall appoint an auditor or clerk, treasurer, and such other officers as needed and provided for by ordinance.  By resolution of the governing board of a municipality the board may choose to appoint a finance officer instead of an auditor or clerk and treasurer.  The finance officer shall perform all of the duties of the  auditor or clerk and treasurer except where duplicate records are required, only one set of records is necessary.  The finance officer shall be bonded in the same amount as is required for the treasurer.  [Emphasis supplied.]

Prior to the 1985 amendment SDCL 9-14-1 read as follows: 

In cities there shall be appointed an auditor, treasurer, attorney, engineer, chief of police, policeman, and such other officers as may be provided for by ordinance.  In towns there shall be appointed an auditor, treasurer, marshal and an overseer of highways.  By resolution of the governing board of a municipality the board may choose to appoint a finance officer instead of an auditor or clerk and treasurer.  The finance officer shall perform all of the duties of the auditor or clerk and treasurer as provided by law except where duplicate records are required, only one set of records will be necessary.  The finance officer shall be bonded in the same amount as is required by law for the treasurer.  [Emphasis supplied.]

Specifically, you question whether the amended language of SDCL 9-14-1 making reference to the "governing board" of municipalities results in any transfer of the appointment power from the mayor to the common council.

Upon review of SDCL 9-14-1, 9-14-3, and other related statutes, it is my opinion that the initial power to select appointees still rests with the mayor, subject to approval by the voting members of the common council.

The words "governing board" as used under SDCL 9-14-1 refer to the  common council as defined under SDCL 9-8-4 which states, "the common council shall consist of the mayor elected at large and two aldermen elected from and by the voters of each ward of the municipality ..."  The mayor is, technically, a member of the common council.  Thus, reference to the governing board as the body responsible for appointment does not conflict with the language of SDCL 9-14-3.  Appointment under SDCL 9-14-3 requires not only selection of an appointee by the mayor but also approval by the voting members of the council.

Clearly, SDCL 9-14-1 was not amended to change the procedure or authority for the appointment of municipal officers.  The 1985 amendment was only intended to designate the officers that must be appointed in each of the three classes of municipalities enumerated under SDCL 9-2-1.

Respectfully Submitted,

Roger A. Tellinghuisen
Attorney General