STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL
June 30, 1975
Mr. Arnold C. Jones
Executive Secretary
Pennington County Board of
County Commissioners
Rapid City, South Dakota 57701
OFFICIAL OPINION NO. 75-121
Municipal Human Rights Commission does not have power to impose legal obligation on county.
Dear Mr. Jones:
You have requested an official opinion from this office based upon the following factual situation:
A person was hired as a juvenile detention counselor by Pennington County in November, 1974, and was discharged January 29, 1975. This person then filed a complaint with the City of Rapid City Human Relations Commission which, after investigation, found probable cause for discrimination in the termination of this person's employment. A conciliation agreement was tendered which, among other things, would require reinstatement and back pay from time of discharge to reinstatement.
The position had already been filled at the time the conciliation proposal was presented to county authorities.
Based on the above factual situation, your questions are:
l. Does SDCL 20-12 give a city jurisdiction over the county in which it is located?
2. Can a county legally reinstate a person to a position which has been filled?
The law is clear in South Dakota that municipal corporations have no powers other than those granted to them by the Constitution and statutes of South Dakota and such powers as are necessarily implied from expressly delegated powers or are incidental thereto. City of Watertown v. Meseberg, 144 N.W. 2d 42, 82 S.D. 250 (1966); Schryver v. Schirmer, 171 N.W. 2d 634, 84 S.D. 352 (1969).
SDCL 20-12-4 provides that municipalities shall have the power to "investigate" various discriminatory practices. To effectuate the foregoing power, SDCL 20-12-5 provides:
To effectuate the foregoing policy any said municipality may establish a commission on human relations which may act to disseminate information, to engage and cooperate with programs of research and education, to cooperate with persons or groups interested in similar objectives, to conduct public meetings and hearings, to mediate and conciliate in instances of alleged discrimination, and to initiate and hear complaints alleging discrimination with such investigation and inquiry as may reasonably appear necessary.
SDCL 20-12-6 provides that the municipal human relations commission has the power to subpoena, to examine witnesses, administer oaths, take testimony, and require the production for examination of relevant books or papers, and to take such affirmative action as in the judgment of such commission will effectuate its purposes.
The crux of the question you ask focuses on SDCL 20-12-6 and whether or not the Rapid City Human Rights Commission can "take affirmative action" to the extent that they impose a legal obligation on Pennington County.
It is my opinion that SDCL 20-12-6, in empowering the municipal human rights commission to "take affirmative action" does not grant to the commission the power to require Pennington County to hire back the employee referred to or to require payment of back wages from the time of discharge.
SDCL 20-13 establishes a state human relations commission which, pursuant to SDCL 20-13-10 and 20-13-1(4), specifically covers the matter of discriminatory practices in employment by the State of South Dakota and all political subdivisions and agencies thereof. It appears to me that the Legislature has specifically indicated its intent that insofar as employment discriminations of political subdivisions or the State of South Dakota are concerned, SDCL 20-13 and not SDCL 20-12 would be controlling. The primary rule of statutory construction is, of course, to give effect to the intent of the Legislature, Schlim v. Gau, 80 S.D. 403, 125 N.W. 2d 174 (1963).
Senate Bill 69 of the 1975 Legislature, as passed, provided that counties, in addition to municipalities, shall have the authority to establish a commission on human relations. To the extent that the question may arise as to the authority of the county commission over the municipality or of the municipal commission over the county, it appears to me that in the absence of any more specific language in SDCL 20-12, there is no authority for either commission to impose on the other political subdivision a legally binding obligation to reinstate an employee or to refund or pay any back wages. If the state or any political subdivision of the state is involved in unfair discriminatory employment practices, SDCL 20-13 provides for a way of dealing with them.
It appears to me that the above discussion makes unnecessary any further consideration of additional questions presented.
Respectfully submitted,
William Janklow
Attorney General
WJJ:DOC:mhb
