If a new Natural Resources Conservation District is electing its five supervisors at the general election, what kind of legal notice does it have to publish? Newspaper notice? Posting in public places? The statute doesn't say.
Plain-English summary
Chapter 1 of the 1968 Session Laws created Natural Resources Conservation Districts (NRCDs) in South Dakota, replacing or restructuring the older soil and water conservation system. At the 1968 general election (or at the first general election after a new district's establishment), each NRCD would elect a five-member Board of Supervisors on a nonpartisan ballot, with all supervisors elected at large and required to live within the district. Nominating petitions had to be filed by July 1 of the election year with the County Auditor (for single-county districts) or the Secretary of State (for multi-county districts).
The Kingsbury County NRCD official wanted to know what kind of public notice the district had to give of the supervisor openings. The statute did not say. The official had been told that the district might post notice in three conspicuous public places (with an Affidavit of Posting), or might pay for newspaper publication, but the district was operating on a limited budget and was hesitant to commit to newspaper notice unless required.
The AG checked the general election law (SDC 16.09) for the notice required of the general election itself, and confirmed that the general notice covered the fact of the election (where and when voters would vote). But the AG could find no statutory provision (in the general election laws or in Chapter 1 of the 1968 Session Laws) requiring separate notice of the specific positions to be filled, particularly for nonpartisan offices like the NRCD supervisor seats.
So the answer was: the district could publish notice if it wanted, and posting in three public places was not illegal, but the law did not compel any particular notice format or any notice at all of these specific openings.
Currency note
This opinion was issued in 1968. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The conservation district statute has been recodified into modern SDCL chapter 38-7 (Conservation Districts) and the election law into SDCL Title 12. Notice requirements for special district elections may have changed; districts should consult current SDCL provisions and the South Dakota Secretary of State's election manuals before relying on any 1968 notice practice.
What the opinion meant at the time
For conservation district secretaries trying to attract candidates, the opinion gave them broad latitude. They could post notices wherever they thought it would help, send press releases to local newspapers (which might or might not run them as news items), reach out directly to prospective candidates, or do nothing formal at all. The choice was theirs.
For district boards on tight budgets, the opinion meant they did not have to spend scarce funds on legal-form newspaper notices for the supervisor openings. If they wanted the visibility, fine; if they would rather direct the funds to actual conservation work, also fine.
For prospective candidates, the opinion meant they could not count on a public notice telling them when nominating petitions had to be filed. They had to know the statutory deadline (July 1) and follow up with the County Auditor or Secretary of State directly to confirm the procedure. Reading the Session Laws was the safer course than waiting to see a notice.
For voters, the opinion meant the supervisor elections might fly under the radar in some districts. Without required notice, some voters might not even know the offices were up for election until they got to the polls. This was a general feature of nonpartisan special-district elections in the era, not unique to NRCDs.
For the State Conservation Commission (which Chapter 1 authorized to make regulations carrying out the act), the opinion left open whether the Commission could adopt regulations requiring or recommending notice procedures. The AG did not address that question, but the Commission's general regulatory authority could plausibly have reached the topic.
Common questions
Q: What notice did the County Auditor or Secretary of State give for nominating petitions?
A: The opinion did not specify. The general framework would have required the filing officer to accept petitions, but there was no statutory mandate to publish notice of the filing deadline. Practical guidance from the Secretary of State to county auditors would have varied.
Q: Could the local newspaper publish the openings as a news item?
A: Yes. The opinion mentioned that local newspapers might cover the openings as news. Editorial coverage was permissible (and helpful for candidate awareness) but did not satisfy any legal notice requirement (because none existed).
Q: What was the affidavit-of-posting practice the inquirer mentioned?
A: Posting public notices in three conspicuous places was a common practice for various local government notices when statutes required public notice without specifying newspaper publication. The secretary of the posting body would file an affidavit confirming when and where the notices had been posted. The AG acknowledged the practice but said it was not required here.
Q: Did the answer change for multi-county districts?
A: The opinion did not split the analysis. The same conclusion (no statutory notice requirement) applied whether the district sat in one county or several. The only multi-county difference was that the nominating petitions had to be filed with the Secretary of State rather than the County Auditor.
Q: What happened if the district ran the election without any notice and a candidate later complained?
A: The candidate would have had to point to a statute requiring notice in order to win a complaint. With no such statute, there was no basis for relief. A losing candidate's argument that lack of notice deprived voters of fair information would have failed on the statutory text.
Q: Could the State Conservation Commission require notice by regulation?
A: The opinion did not decide. Chapter 1 of the 1968 Session Laws gave the Commission authority to adopt regulations "reasonably necessary to carry out the intentions" of the act. Whether that authority reached the topic of supervisor-election notice would have required a separate analysis.
Background and statutory framework
Chapter 1 of the 1968 Session Laws established the Natural Resources Conservation District system, with statewide coverage and a uniform governance structure. Each district was governed by a five-member Board of Supervisors elected at large on a nonpartisan basis. The supervisors had to reside within the district.
The election timing was tied to the general election: supervisors were elected in 1968 (or at the first general election after a new district was established), and the nominating petition deadline was July 1 of the election year. Petitions went to the County Auditor for single-county districts or to the Secretary of State for multi-county districts.
The general election notice statute, SDC 16.09, covered the publication of the general election itself, including the date, the polling locations, and the offices to be filled by reference to the candidates appearing on the ballot. But SDC 16.09 did not separately address notice of vacancies or openings in nonpartisan offices added to the ballot by special-district statutes.
The AG had to decide whether to read in a notice requirement that the legislature had not written. The AG's reading was strict: if the statute did not require notice, none was required. Districts could provide notice as a courtesy or to attract candidates, but they could not be punished for not doing so.
Citations and references
Statutes:
- Chapter 1 of the 1968 Session Laws (creating Natural Resources Conservation Districts; nonpartisan five-member Boards of Supervisors elected at general election; July 1 petition deadline; Commission rulemaking)
- SDC 16.09 (general election notice provisions)
Source
Original opinion text
Elections. Notice required of openings for Board of Supervisors of Natural Resources Conservation Districts.
You have submitted the following factual situation relative to the Natural Resources Conservation Districts Supervisory Boards created by Chapter 1, 1968 Session Laws:
"At the general election to be held in 1968, or at the first general election following establishment of a new district, there shall be elected on a nonpartisan ballot, five supervisors who shall reside within the district to be elected at large."
"Nominating petitions shall be filed on or before July first of the year in which the general election is to be held, with the County Auditor of the county, or where more than one county is within the territorial limits of the district, with the Secretary of State.
"The last portion of Section 6, subparagraph (1) states that the Commission is authorized to make any regulations reasonably necessary to carry out the intentions of Chapter I of the 1968 Session Laws. It has been suggested that the Local Conservation District, which comprises only in one county in our instance, namely Kingsbury, post in three conspicuous public places and file an Affidavit of Posting, if they see fit and the Commission so resolves, that they could give a legal notice in the paper as well. However, they are with limited funds and, of course, if the local papers are requested to make a news item out of this solely, there is always the possibility that the Courts would not classify this as a formal notice of vacancy. For that reason, I have encouraged posting in three public places with Affidavit of Posting maintained within the District Office."
The question you have submitted is:
"What type of notice is to be given, advising the public of the five supervisors to be elected; must this be in a legal form, published in the County newspapers (where there are more than one in all), mere posting in three public places or just what was the requirement which the Legislature intended as to such notice?"
I assume the notice you are writing about is a notice of the position to be filled, as the notice required for the general election is spelled out in SDC 16.09.
I am unable to find any requirement in the general election laws or in the act creating these positions which would require notice to be given of the vacancies in these non-political offices.
It is my opinion that it would not be illegal for the Conservation District to give notice of the openings of the positions, however it is not required by law.