February 1, 2006
Dwight A. Gubbrud
Belle Fourche City Attorney
618 State Street
Belle Fourche, SD 57717-1489
Official Opinion No. 06-02
RE: Mayor resignation, and applicability of vacancy statutes
Dear Mr. Gubbrud:
You have requested an opinion from this Office regarding the following factual situation:
FACTS:
On December 16, 2005, the Mayor of the City of Belle Fourche resigned. The President of the Belle Fourche Common Council began serving as acting mayor as required by SDCL 9‑8‑2 and 9‑8‑7. During the 2005 Legislative Session, the South Dakota Legislature amended the law regarding the filling of vacancies for certain governing bodies. 2005 SL ch. 48. Therein, the Legislature amended provisions in SDCL chs. 9-8, 9-9 and 9-13 to provide certain municipalities with an option of enacting an ordinance to fill any vacancy through special election. Following the effective date of the legislation, the Belle Fourche Common Council adopted an ordinance providing that all vacancies would be filled by special election. Section 6 of the Act, codified at SDCL 9-13‑14.2, however, states that a special election cannot be held in the 90 days prior to an annual election. Furthermore, this section also requires the finance officer to publish notice of vacancy and special election at least 60 days prior to the special election. The next annual municipal election is scheduled to be held on April 11, 2006. Due to the statutory time constraints, a special election cannot be held to fill the mayoral vacancy. Since the special election process is unavailable to fill the vacancy, the common council is interested in amending its ordinance to allow the filling of the vacancy by appointment.
Based upon the above statement of facts, you have asked the following question:
QUESTION:
Can the common council amend the special election ordinance to provide that vacancies will be filled by appointment if a special election cannot be held?
IN RE QUESTION:
During the 2005 legislative session, HB 1097 was introduced. It allowed certain municipalities to hold special elections to fill vacancies on their governing bodies. This Bill was enacted and signed into law. It is found at 2005 SL ch. 48 and provides as follows:
ENTITLED, An Act to authorize the use of special elections to fill vacancies in the office of the mayor and on the governing boards of certain municipalities.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA:
Section 1. That § 9-8-2 be amended to read as follows:
9-8-2. If there is a vacancy from any cause in the office of the mayor, the vacancy shall be filled by appointment by a majority vote of the members-elect of the common council, as soon as practicable after the vacancy occurs, to serve until the office is filled by election for the unexpired term at the next annual municipal election or by special election as provided in section 6 of this Act. Until the vacancy is filled or during the time of temporary disability of the mayor, the powers and duties of mayor shall be executed by the president of the city council.
Section 2. That § 9-8-4 be amended to read as follows:
9-8-4. The common council shall consist consists of the mayor elected at large and two aldermen elected from and by the voters of each ward of the municipality. The term of office shall be for is two years, unless a municipality adopts an ordinance establishing the term of office to be three, four, or five years. The mayor and aldermen shall hold office until successors are elected and qualified. At the first election of aldermen, the council shall stagger the initial terms of the alderman in each ward to provide that the two aldermen are not up for reelection in the same year. A person may hold office for more than one term. A vacancy on the common council shall be filled as provided in § 9-13-14.1 or Section 6 of this Act.
Section 3. That § 9-9-6 be amended to read as follows:
9-9-6. The resignation of the mayor or any commissioner shall be in writing to the board.
The permanent removal of the mayor or any commissioner from the territorial limits of the first or second class municipality shall create creates a vacancy in his the office.
In case of any vacancy from any cause in the office of mayor the same vacancy shall be filled by appointment pursuant to § 9-9-8 until the same shall be position is filled by election at the next annual municipal election or by special election as provided in section 6 of this Act. A vacancy on the commission shall be filled as provided in § 9-13-14.1 or as provided in section 6 of this Act.
Section 4. That § 9-13-14 be amended to read as follows:
9-13-14. Every special election authorized by law, except as provided in § 6-8B-4 and section 6 of this Act, shall be held upon the same notice, at the same polling places, be conducted, returned, and canvassed, and the result declared as provided herein for the annual municipal election.
The notice of such special election shall state any question or questions to be voted upon.
Section 5. That § 9-13-14.1 be amended to read as follows:
9-13-14.1. When If a vacancy exists on a municipal governing body, the remaining members shall appoint a replacement to serve until the next annual municipal election, or the vacancy may be filled by special election as provided in section 6 of this Act. In the aldermanic form of municipal government, the appointment must be a person from the same ward of the first or second class municipality. There shall not be a No special election may be held to fill a vacancy before the date of the annual municipal election, except as provided in section 6 of this Act.
Section 6. That chapter 9-13 be amended by adding thereto a NEW SECTION to read as follows:
The governing body of any municipality may, by ordinance, require that any vacancy on the governing body or in the office of the mayor is to be filled by a special election called for that purpose to be conducted as provided in § 9-13-14 and this section. No such special election may be held less than ninety days before the annual municipal election. The finance officer of the municipality shall publish a notice in the official newspaper of the municipality stating that a vacancy exists, that the vacancy will be filled by special election, the date of the election, and the time and place where nominating petitions may be filed for the office. The notice shall be published once each week for two consecutive weeks beginning at least sixty days before the date of the special election. Nominating petitions for the vacancy shall be prepared and filed as provided in § 9-13-7 and shall be filed at least thirty days before the date of the special election. A notice of the special election shall be published as provided in §§ 9-13-13 and 9-13-14.
Signed February 18, 2005.
Section 6 of the Act was codified as SDCL 9‑13‑14.2.
The question you have raised is one of statutory construction. In addressing such questions, this Office follows the rules adopted by the South Dakota Supreme Court. The applicable rules of statutory construction are as follows:
The purpose of statutory construction is to discover the true intention of the law which is to be ascertained primarily from the language expressed in the statute. The intent of a statute is determined by what the Legislature said, rather than what the courts think it should have said, and the court must confine itself to the language used. Words and phrases in a statute must be given their plain meaning and effect. . . . Since statutes must be construed according to their intent, the intent must be determined from the statute as a whole, as well as enactments relating to the same subject. But, in construing statutes together, it is presumed that the Legislature did not intend an absurd or unreasonable result. When the question is which of two enactments the Legislature intended to apply to a particular situation, terms of a statute relating to the particular subject will prevail over the terms of another statute.
Martinmaas v. Engelmann, 2000 S.D. 85, ¶ 49, 612 N.W.2d 600, 611 (citations omitted). Other principles of statutory construction are that the Legislature intended that no part of its statutory scheme be rendered mere surplusage, and that where two statutes appear to conflict there is a duty to reasonably interpret both, giving effect if possible to all provisions under consideration construing them together to make them harmonious and workable. See Faircloth v. Raven Industries, Inc., 2000 S.D. 158, ¶¶ 6 and 7, 620 N.W.2d 198, 201. Finally, the question you raise involves statutes that were recently amended. The court has stated that when an amendment is passed, it is presumed the Legislature intended to change the existing law. South Dakota Subsequent Injury Fund v. Federated Mutual Insurance, Inc., 2000 S.D. 11, ¶ 18, 605 N.W.2d 166, 170.
Applying the above rules of construction, it is clear that the Legislature intended to change the existing law by affording local governing bodies the ability to fill vacancies by special election. In enacting the 2005 Act, however, the Legislature did not alter the mandatory provisions of SDCL 9‑8‑2 and 9‑13‑14.1. Both provisions still provide that the vacancy "shall" be filled by appointment. The fact that this language was not amended is important, since the Legislature in SDCL 2‑14‑2.1 has defined "shall" in such a manner as to preclude any discretion. Further, the Legislature saw fit to place limits on a governing body's ability to hold special elections. A governing body is precluded from holding a special election where the time constraints in § 6 (SDCL 9‑13‑14.2) cannot be met. In my opinion, a special election is unavailable if the vacancy occurred within 150 days of the annual municipal election. To construe the statute otherwise would preclude applicability of the 60-day notice provision, the 30-day nomination provision, as well as the 90 day period before the annual municipal election.
In construing all of the above statutes, and attempting to give effect to all the language of their provisions, as well as attempting to harmonize apparent conflicts, it is my opinion that where a municipal governing body has enacted an ordinance to implement special elections and § 9‑13‑14.2's limitations preclude a special election, the mandatory language for filling a vacancy by appointment (SDCL §§ 9‑8‑2 and 9‑13‑14.1) controls. I cannot conclude the mandatory appointment provisions are mere surplusage simply because an ordinance was adopted. Nor can I conclude that the Legislature intended a five month vacancy to occur in an office merely because a special election could not be held. Thus, under the facts you have provided, it is my opinion that notwithstanding the city ordinance providing that vacancies in the office of mayor or common council be filled by special election, the provisions of SDCL 9‑8‑2 supercede the ordinance and require that the vacancy in the office of mayor be filled by appointment. Further, the appointee will serve until the office is filled by an election for the unexpired term at the April municipal election. The common council may amend its ordinance to make it consistent with state law. Whether or not such amendment occurs, the legislative command must be obeyed.
Until the vacancy is filled, the president of the common council acts as Mayor. The fact that the president of common council is acting Mayor, however, does not by itself create a vacancy in the common council. The provisions of SDCL 9‑8‑2, not 9‑13‑14.1, apply.
There is no necessity for the Belle Fourche common council to amend its ordinance. As a matter of statutory mandate, the governing body is required to fill the mayorial vacancy by appointment.
Very truly yours,
Lawrence E. Long
Attorney General
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