In a South Dakota city with an aldermanic form of government, can the city council fire the City Administrator on its own, or does only the mayor have that power?

Plain-English summary

Spearfish, an aldermanic-form South Dakota city, has a city ordinance (32.08) saying the City Council "may appoint a City Administrator" but the mayor alone may remove that person. A majority of the aldermen wanted the City Administrator gone; the mayor wouldn't act; the aldermen asked whether they could fire the administrator themselves.

Attorney General Marty Jackley said no. In aldermanic-form cities under SDCL Chapter 9-8, state law puts both appointment and removal of city officers in the mayor's hands. SDCL 9-14-3 says appointive officers "shall be appointed by the mayor with the approval of the council." SDCL 9-14-13 says the mayor "may remove from office any officer appointed by the mayor" when the interests of the city demand it, and the South Dakota Supreme Court has called that removal power "absolute."

Two consequences follow:

1. Spearfish's ordinance is partly preempted. Where it says the council may appoint the administrator, that conflicts with SDCL 9-14-3 (which makes the mayor the appointing authority and gives the council only an approval role). State law wins.
2. Where the ordinance says only the mayor may remove the administrator, it correctly tracks SDCL 9-14-13. Council members cannot vote as a body to terminate the administrator.

If the city wants a different arrangement, the route is either a legislative fix in Pierre or a change to the city-manager form of government under SDCL Chapter 9-10, which requires a vote of the city's registered voters.

What this means for you

If you sit on a South Dakota city council under the aldermanic form

The opinion holds that the council, acting as a body, cannot terminate a City Administrator (or any other officer the mayor appointed). SDCL 9-14-13 vests that removal power in the mayor alone, so a council vote to fire the administrator does not change the administrator's status. The opinion also holds the council's role on the appointment side is approval, not selection: under SDCL 9-14-3 the mayor appoints "with the approval of the council." The only routes the opinion identifies for changing this arrangement are a legislative change in Pierre or a referendum to switch to the city-manager form under SDCL Chapter 9-10.

If you are the mayor of an aldermanic-form city

The opinion holds that the mayor alone holds the removal power for officers the mayor appointed, and it quotes Kierstead v. City of Rapid City describing that power as "absolute." It treats ordinance language vesting sole removal authority in the mayor (the removal half of Spearfish's 32.08) as consistent with SDCL 9-14-13. The opinion does not address what employment-law claims a removed administrator might bring; it speaks only to the allocation of removal authority under state municipal law.

If you are a City Administrator or are negotiating to be hired as one

The opinion holds that an aldermanic-form City Administrator can be removed by the mayor alone, with no council vote or concurrence required. A council majority cannot terminate the position. The opinion addresses only the statutory removal authority; it does not opine on employment contracts, severance, or notice provisions.

If you are a city attorney drafting or auditing municipal ordinances

The opinion holds that an ordinance vesting appointment of city officers in the council conflicts with SDCL 9-14-3 and is preempted, while an ordinance vesting removal in the mayor tracks SDCL 9-14-13. It also notes that Spearfish's 32.08 conflated two forms of government (council appointment is a city-manager feature, mayoral removal is an aldermanic feature). The same conflict analysis (Preserve French Creek v. County of Custer) applies to any Chapter 9-8 city whose ordinance gives the council appointment or removal power over mayor-appointed officers.

If you are a Spearfish resident watching this play out

The opinion holds that, under current law, the mayor decides whether the City Administrator stays. The council's recourse, per the opinion, is to seek a statutory change from the Legislature or a voter referendum to change the city's form of government to city-manager under SDCL Chapter 9-10.

Common questions

Q: What is the "aldermanic form" of city government in South Dakota?
A: Under SDCL Chapter 9-8, an aldermanic-form city has a mayor (elected at large) and aldermen elected from wards. The mayor is the city's chief executive and holds appointment power for city officers. Spearfish operates under this form.

Q: How does the aldermanic form differ from the city-manager form?
A: In a city-manager form (SDCL Chapter 9-10), the governing body appoints, supervises, and removes the city manager, who runs day-to-day operations. The mayor has a more ceremonial role. Switching from aldermanic to city-manager requires a vote of the registered voters under SDCL 9-10-1, not just a council ordinance.

Q: Is a "City Administrator" the same as a "City Manager"?
A: Not in South Dakota. A City Administrator is an officer of an aldermanic-form city, appointed by the mayor under SDCL 9-14-3. A City Manager is the chief executive of a city under the separate city-manager form in Chapter 9-10. The titles sound interchangeable but the statutory framework is different.

Q: Can the council refuse to approve the mayor's pick?
A: Yes. SDCL 9-14-3 conditions the appointment on council approval. The council can withhold approval and force the mayor to nominate someone else. That is the council's leverage at hiring; once the officer is in place, removal is the mayor's call alone.

Q: Does this opinion bind a court?
A: No. South Dakota AG opinions are persuasive but not binding precedent. They are commonly given weight as reasoned analysis by the state's chief legal officer, but a court could reach a different result. Practically, this opinion will be persuasive in any litigation between Spearfish's council and its mayor.

Q: What if the council passes a resolution declaring no confidence in the City Administrator?
A: A no-confidence resolution is not a termination. It signals the council's view but does not change the administrator's employment status, because SDCL 9-14-13 puts removal in the mayor's hands. The mayor can choose to act on it or not. Per the opinion, the council cannot terminate the administrator directly; changing that allocation would take a statutory amendment or a referendum to switch the form of government.

Background and statutory framework

South Dakota's municipal-government chapters split cities into forms with distinct appointment-and-removal rules. SDCL Chapter 9-8 (the aldermanic form) is the form Spearfish uses; SDCL Chapter 9-10 (city-manager form) is the only alternative for cities of comparable size that want council-driven executive personnel decisions. The split is intentional: the legislature wanted voters to choose the form, not councils to drift between them by ordinance.

Inside the aldermanic form, two statutes carry the load:

• SDCL 9-14-3 assigns appointment power to the mayor "with the approval of the council." That joint structure preserves a check on patronage hires (the council can reject the nominee) while keeping executive responsibility with the mayor (the council does not pick the nominee).
• SDCL 9-14-13 assigns removal power to the mayor alone, "if the mayor believes that the interests of the municipality demand such removal." The South Dakota Supreme Court read this in Kierstead v. City of Rapid City (1976) and again in Patterson v. Linn (2001) as a deliberate legislative choice not to make the mayor share removal power with the council.

The AG's preemption analysis follows the Court's standard rule from Preserve French Creek, Inc. v. County of Custer (2024): when a municipal ordinance prohibits what state law permits, or commands what state law forbids, state law wins. Where a statute "delimits" a municipality's power, the Court reads the local grant strictly against expansion. The Spearfish ordinance fails that test on the appointment side because it gives the council power state law gives the mayor.

Spearfish's ordinance is internally inconsistent for an additional reason the opinion flags: it pairs council appointment (city-manager-style) with mayoral removal (aldermanic-style). The two halves of the ordinance assume different forms of city government. Cleaning the ordinance up would require either dropping the council-appointment language or holding a referendum to switch to the city-manager form entirely.

Citations and references

Statutes:
- SDCL 9-8-1 (mayor as chief executive officer)
- SDCL 9-14-3 (appointment of officers by mayor with council approval)
- SDCL 9-14-13 (mayor's removal power)
- SDCL 9-10-1, 9-10-3, 9-10-11, 9-10-15 (city-manager form)

Cases:
- Patterson v. Linn, 2001 S.D. 135, 636 N.W.2d 467 (council cannot annul mayor's statutory removal power)
- Kierstead v. City of Rapid City, 248 N.W.2d 363 (S.D. 1976) (mayor's removal power is "absolute")
- Preserve French Creek, Inc. v. County of Custer, 2024 S.D. 45, 10 N.W.3d 233 (state law preempts conflicting local ordinance)
- Olson v. Butte County Comm'n, 2019 S.D. 13, 925 N.W.2d 463 (plain-language statutory interpretation)
- Sioux Falls v. Peterson, 71 S.D. 446, 25 N.W.2d 556 (1946) (strict construction against municipal power grabs)

Source

• Landing page: https://atg.sd.gov/OurOffice/OfficialOpinions/opinionhtml.aspx?id=1774
• Original PDF: https://atg.sd.gov/OfficialOpinions/SD%20AG%20Office%20Official%20Opinioin%20Spearfish%2026-02.pdf

Original opinion text

OFFICIAL OPINION 26-02

Re: Official Opinion Concerning City Ordinance 32.08

Dear Mr. Knox:

In your capacity as City Attorney for the City of Spearfish, you have requested an official opinion from the Attorney General's Office on the following questions:

QUESTION(S):

• Does Spearfish City Ordinance 32.08 conflict with state statutes and does state law thus control?
• Does the Spearfish City Council have the authority to terminate the City Administrator, or is that authority reserved for the mayor?

ANSWER(S):

• Yes, Ordinance 32.08 conflicts with state statutes and state law controls.
• No, the Spearfish City Council cannot terminate the City Administrator; that authority is vested in the mayor.

FACTS:

The City of Spearfish is a first-class municipality. It has an aldermanic form of government under SDCL Chapter 9-8. Accordingly, the city council is made up of a mayor and six aldermen who represent the three electoral wards of the city. The city employs a City Administrator as an officer of the city.

The majority of the aldermen on the Spearfish City Council believe the City Administrator is unable to fulfill the duties and obligations of the position. City Ordinance 32.08 states, in relevant part, that "[t]he Common Council may appoint a City Administrator," but "the City Administrator, as an officer of the city, may be removed by the mayor."

The majority of the aldermen comprising the Spearfish City Council have asked the mayor to terminate the employment of the City Administrator. The mayor has not done so. You ask whether the aldermen have the authority "to act as a body and terminate the City Administrator without the involvement or participation of the mayor."

IN RE QUESTION 1:

You have asked whether City Ordinance 32.08 conflicts with state statutes to such a degree that the state statutes control over the ordinance. It does conflict with state statutes, but not because it grants the mayor the ability to terminate the City Administrator's employment. Rather, it conflicts with state statutes by giving the city council the power to appoint the City Administrator.

When interpreting statutes, "'the language expressed in the statute is the paramount consideration.'" Olson v. Butte County Comm'n, 2019 S.D. 13, ¶ 5, 925 N.W.2d 463, 464 (quoting Goetz v. State, 2001 S.D. 138, ¶ 15, 636 N.W.2d 675, 681). "When the language in a statute is clear, certain[,] and unambiguous, there is no reason for construction, and the Court's only function is to declare the meaning of the statute as clearly expressed." State v. Biteler, 2025 S.D. 73, ¶ 13, ___ N.W.3d ___ (quoting State v. Armstrong, 2020 S.D. 6, ¶ 16, 939 N.W.2d 9, 13).

In municipalities governed by a mayor and common council under SDCL Chapter 9-8, the appointment of officers follows a specific statutory scheme. SDCL 9-14-3 provides that "each appointive officer of a municipality governed by a mayor and common council shall be appointed by the mayor with the approval of the council . . ." SDCL 9-14-3 (emphasis added). This statute establishes the mayor as the appointing authority, with the council exercising an approval function rather than independent appointment power. Spearfish City Ordinance 32.08 allows the city council to appoint a City Administrator, but this conflicts directly with SDCL 9-14-3.

The South Dakota Supreme Court has consistently recognized this framework, noting that the aldermanic form contemplates the mayor as the chief executive officer with appointment powers subject to council approval. SDCL 9-8-1. "Where a grant of power appears to be delimited by statute, [the Supreme Court] will strictly resolve against a municipality power taken in excess of that grant." Patterson v. Linn, 2001 S.D. 135, ¶ 7, 636 N.W.2d 467, 469 (citing Sioux Falls v. Peterson, 71 S.D. 446, 448, 25 N.W.2d 556, 557 (1946)). Spearfish City Ordinance 32.08 grants power to the city council in excess of that granted under state law.

"When an ordinance conflicts with state law, 'state law preempts or abrogates the conflicting local law.'" Preserve French Creek, Inc. v. County of Custer, 2024 S.D. 45, ¶ 10, 10 N.W.3d 233, 238 (quoting Rantapaa v. Black Hills Chair Lift Co., 2001 S.D. 111, ¶ 23, 633 N.W.2d 196, 203). When an ordinance prohibits what state law allows, the ordinance is unenforceable. Id.

Thus, Spearfish City Ordinance 32.08 is preempted by state law in that it says the city council may appoint a City Administrator, when state law says a city officer must be appointed by the mayor. As discussed below, Ordinance 32.08 appropriately vests the power to remove the City Administrator with the mayor.

IN RE QUESTION 2:

Turning to the ability to terminate city officers, the removal authority for officers in aldermanic-governed municipalities is similarly clearly vested in the mayor. SDCL 9-14-13 expressly states, "[i]n an aldermanic-governed municipality, the mayor, except as otherwise provided, may remove from office any officer appointed by the mayor, if the mayor believes that the interests of the municipality demand such removal." SDCL 9-14-13.

Similar to appointment powers, the South Dakota Supreme Court has repeatedly held that the mayor is vested with the power to remove a city officer.

"SDCL 9-14-13 is an executive power vesting in the mayor the power of removal of any officer appointed by him. This power is absolute." Kierstead v. City of Rapid City, 248 N.W.2d 363, 366 (S.D. 1976) (citing State v. Williams, 6 S.D. 119, 60 N.W. 410 (1894)). "Interpreting SDCL 9-14-13 [otherwise] would entitle a common council effectively to annul the Legislature's express grant of removal power . . ." Patterson, 2001 S.D. 135, ¶ 10, 636 N.W.2d at 470. "A contrary reading of this statute leads to the inconsonant result that a city can override the powers conferred upon it by the Legislature." Id. ¶ 11.

Accordingly, the Spearfish City Council cannot "act as a body and terminate the City Administrator without the involvement or participation of the Mayor." City Ordinance 32.08 appropriately vests the power to remove the City Administrator with the mayor, in line with SDCL 9-14-13.

As it is currently written, Spearfish City Ordinance 32.08 appears to conflate the aldermanic form of city government with the aldermanic form with a city manager. Under SDCL Chapter 9-10, municipalities may employ a city manager who has the duty to supervise the administration of all affairs of the municipality, among other duties. SDCL 9-10-15. In that form of government, the city manager is appointed and removed by the governing body, not the mayor. SDCL 9-10-3 and -11. Even so, a city manager is not the equivalent of Spearfish's City Administrator; the former requires a change of the city's form of government and an election by the registered voters of the municipality. SDCL 9-10-1.

In summary, because SDCL 9-14-13 vests removal authority in the mayor for officers appointed by the mayor in aldermanic-governed municipalities, and because municipal ordinances cannot expand or restrict statutory removal powers, the City Administrator is necessarily subject to removal by the mayor alone.

CONCLUSION

In municipalities governed by a mayor and common council under SDCL Chapter 9-8, the authority to both appoint and remove city officers is vested in the mayor. Thus, City Ordinance 32.08 is preempted by SDCL 9-14-3 as to the ability to appoint a City Administrator. City Ordinance 32.08 correctly sets out that only the mayor may terminate the City Administrator's employment. The authority to make any desired change in the relevant state statutes is vested in the Legislature.

Sincerely,

Marty J. Jackley

ATTORNEY GENERAL

MJJ/SLT/dd