February 15, 1983

Representative Walter Dale Miller 
State House of Representatives 
Capitol Building Mailroom 
State Capitol 
Pierre, South Dakota 57501

Official Opinion No. 83-08

Mayor recall petition

Dear Representative Miller:

You have requested an Official Opinion based on the following factual situation:

FACTS: 

A petition calling for the recall of the mayor of the City of New Underwood was filed at the city council meeting on February 7, 1983.  The petition stated the following as the grounds on which removal is sought:  'Since his election to the post of Mayor in May, 1982, 1.  'Lynn' Oliff has exhibited personality characteristics inconsistent with the office of Mayor in that Mr. Oliff has on a continuing basis harassed and intimidated residents of New Underwood contrary to the best interests of these residents and of the community.'

Based upon the above factual situation, you have asked the following questions:

QUESTIONS: 

1.  Do the grounds for the recall enumerated above satisfy the legal requirements for recall petitions? 

2.  Assuming that the recall petition is legally sufficient, may the recall election be held at the annual municipal election scheduled for April 12, 1983?

IN RE QUESTION NO. 1:

SDCL 9-13-30 provides in part that a petition for recall of a municipal officer 'shall contain a specific statement of the grounds on which removal is sought.'  The conclusion is inescapable that the grounds relied upon in the New Underwood petition are general, not specific.  It claims the mayor possesses negative 'personality characteristics' without identifying what they are. Further, the petition alleges the mayor has harassed and intimidated the residents of the city but does not describe how or when that was accomplished. Such naked assertions simply do not satisfy the statutory requirement.  The answer to Question No. 1 then is NO.

IN RE QUESTION NO. 2:

The timing of recall elections is governed by SDCL 9-13-31 which provides: 

The governing body shall, upon the presentation of a petition pursuant to § 9-13-30, within ten days order and fix a date for holding a special election, which shall be on Tuesday not less than thirty nor more than fifty days from the date of the order of the governing body; provided that when any such petition is filed within three months immediately prior to the annual  election and within sufficient time to comply with the provisions of this section, the question of a successor shall be submitted at such annual election. 

The governing body shall have a notice of election published, and make all arrangements for holding such special election, which shall be conducted, returned and canvassed, the result thereof declared, and notification of election given in the same manner as provided for annual elections. (Emphasis added.)

Since the petition in question was filed within three months of the April 12th annual election, the recall election can be held on that date.  The answer to Question No. 2 then is YES.

Respectfully submitted,

Mark V. Meierhenry
Attorney General