February 15, 1991
Mr. Jerry Siegel, Manager
East Dakota Water Development District
524 17th Avenue
Brookings, South Dakota 57006
OFFICIAL OPINION NO. 91-06
Water Development District director vacancies
Dear Mr. Siegel:
You have requested an official opinion from this office in regard to the following factual situation:
FACTS:
A duly certified candidate for the office of director for the Water Development District was elected in the 1990 general election. The directorelect sent a letter to the WDD office dated December 22, 1990, stating, "Because of unforeseen circumstances, I will not be able to serve as a director for the East Dakota Water Development District. I would not be able to put forth a good effort to serve well. I believe for the best interest of the district I should not serve." Because of the amendment to SDCL 46A-3B-9 in 1988, there is uncertainty whether this creates a vacancy or not. Resignations or inability to serve are unfortunately not listed as reasons for declaring a vacancy. Thus, I am not sure the WDD Board can declare a vacancy.
It is also unclear whether the current holder of the office can continue to serve. SDCL 3-14-1 provides that "every lawful incumbent of any public office with a definite term shall continue to discharge its duties until his shall have been elected or appointed and qualified. . . ." Since a new director has been elected and has qualified, I am not sure the incumbent can continue to serve, even if he will do so.
Based upon these facts, you have asked the following question:
QUESTION:
1. Can the WDD Board under state statutes declare a vacancy based upon the letter of resignation received from the director elect, and if so, when?
2. If the WDD Board cannot declare a vacancy, can the incumbent continue to serve if he is willing to do so?
IN RE QUESTION NO. 1:
In AGR 88-25, this office was of the opinion that no vacancy existed which could be filled pursuant to SDCL 46A-3B-9, simply because no one filed to run for the office of water development district director. The incumbent continues to serve until a successor is duly elected or appointed and qualified. SDCL 3-14-1. In response, legislation was sought during the 1989 legislative session to create a vacancy where there are no candidates for office. SDCL 46A-3B-9 now provides:
Directors shall take office on the first day of January of the year following their election, or not later than sixty days after election in the case of a special election. Vacancies that may occur on the water development district board of directors by reason of death, disability, failure to be a resident and property owner, or upon expiration of term of office if no qualifying petitions have been filed, unless otherwise provided in chapters 46A-3A to 46A-3E, inclusive, shall be declared to exist and shall be filled by elective action of the remaining directors from candidates proposed by nominating petitions signed by at least twenty-five eligible voters in the director area for which a vacancy exists.
Here, however, there were qualifying petitions filed and no other reason listed in this section provides grounds for declaring a vacancy to exist. Thus the 1989 amendment is not helpful in resolving the question you posed. In fact, the amendment raises questions as to whether the Legislature intended to replace or simply expand the events that could create a vacancy for WDD directors, as compared to their public offices. Compare SDCL 3-4-1 with SDCL 46A-3B-9. As you point out, it is no longer clear whether resignation is a grounds for declaring a vacancy under SDCL 46A-3B-9. Based on conversations we had following the submission of your opinion request, however, I do not believe it is necessary to resolve that uncertainty here.
SDCL 3-1-1 requires that all civil officers must "qualify" as provided in chapters 3-1 and 3-5. Essentially that means that those officers must take the oath of office and must file an official bond, unless expressly provided otherwise by statute. Here, the election results have been certified and the director-elect is a resident and property owner as required by SDCL 46A-3B-2. He has not, however, taken the oath of office as required by SDCL 3-1-5, nor has a bond been posted. It is therefore my opinion that the director-elect has not qualified. If he has not qualified, he is not a director, and the letter he sent is not a resignation. It is simply a statement of his intent not to qualify for the office.
Therefore, under these additional facts, the Board may not declare a vacancy. Noel v. Cunningham, 5 N.W.2d 402 (S.D. 1942). My answer to your first question is NO.
IN RE QUESTION NO. 2:
Under SDCL 3-14-1 the incumbent holds over until the successor is elected or appointed and qualified. Because the person who won the election did not qualify, the incumbent (who did not run) will continue to hold the office. See AGR 88-25; AGR 77-37; AGR 1921-22, page 245. Therefore my answer to your second question is YES.
Respectfully submitted,
MARK BARNETT
ATTORNEY GENERAL
MB:HHD:mas
