STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL
October 30, 1975
Mr. Herschel V. Anderson, State Librarian
Department of Education and
Cultural Affairs
322 South Fort Street
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 75-185
Procedures required for removal of officers appointed for a statutory fixed term
Dear Mr. Anderson:
You have requested an opinion from this office in regard to recent action of the Huron City Commission in replacing a member of the Huron Library Board of Trustees. In regard to this dismissal, you ask the following questions.
(1) Is it legal for a city commission, by majority vote, to remove a member of a library board of trustees when the library board member was appointed under the provisions of SDCL 14-4-3? In the library trustee action described, did the city commission by its majority vote follow due process of law?
(2) If the basis for removal of the trustee was SDCL 9-14-12, is the library board member considered an "appointive officer"?
(3) Can a city commission remove a library board member that was appointed by a former mayor and commission?
(4) Should there have been just cause shown and proven prior to removal of the trustee by the city commission?
SDCL 14-4-3 provides:
A board of trustees appointed pursuant to section 14-4-1 or section 14-4-2 shall consist of five competent citizens, two of whom must be women, and not more than one of whom shall be a member of the municipal governing body, and the appointments must be confirmed by such governing body. Such board shall be known as the public library trustees. One of such trustees shall be appointed for one year, two for two years, and two for three years, and thereafter each for three years, or until his successor is appointed and confirmed. They shall receive no compensation for their services.
SDCL 9-14-12 provides:
Except as otherwise provided any appointive officer of a municipality governed by a board of commissioners or board of trustees may be removed by a majority vote of the members of such board.
In the case of State ex rel. Hitchcock v. Hewitt, 52 N.W. 875 (1892), the Supreme Court of the State of South Dakota recognized the principle that when an officer is appointed during the pleasure of the appointing authority or where the power of removal is discretionary, the power to remove such appointive officer may be exercised without notice or hearing. However, when the officer is appointed during good behavior, or where the removal can only be for certain specified causes, the power of removal cannot be exercised unless there is a charge formulated against the officer and notice is given to him of the accusation and the hearing in regard to the evidence in support of the charge.
In view of the provisions of SDCL 14-4-3 which provide for certain specified terms of public library trustees, it is my opinion that the Legislature did not intend that such trustees serve "at the pleasure" of the municipal governing body. The general rule is that an officer who is appointed for a fixed period cannot be removed without notice and an opportunity for a hearing. State ex rel. Nagel v. Sullivan, 98 Mont. 425, 40 P. 2d 995,99 ALR 336,363. The basis for this general rule is that definiteness of the term indicates that the officer is entitled to hold office for the full time for which he was appointed, unless in the meantime removed for substantial cause which, in turn would imply the necessity of a hearing as to the existence of such a cause. The fact that an officer holds for a definite term implies that he is removable only for cause, and consequently only after notice and hearing, unless express authority is given to remove him at pleasure.
In view of the above answer to your first question, I do not feel it is necessary to consider specifically the matters raised in your other questions.
Respectfully submitted,
William Janklow
Attorney General
WJJ:DOC:mhb
