In a South Dakota aldermanic city, can the city council fire the City Administrator if the mayor refuses to, or does only the mayor have that power?

Plain-English summary

The City of Spearfish is a first-class municipality with an aldermanic form of government (a mayor plus six aldermen across three wards). It hired a City Administrator as an officer of the city. A majority of the council came to believe the Administrator was not performing and asked the mayor to fire him. The mayor refused. The aldermen wanted to know whether they could do it themselves, as a body, without the mayor.

Attorney General Marty Jackley's answer was no. Two separate state statutes lock the question down. SDCL 9-14-3 says appointive officers of an aldermanic city "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, if the mayor believes that the interests of the municipality demand such removal." The South Dakota Supreme Court has called the removal power under 9-14-13 "absolute," and has rejected interpretations that would let a council "annul the Legislature's express grant of removal power."

The opinion also took a swipe at Spearfish City Ordinance 32.08 itself. The ordinance said "[t]he Common Council may appoint a City Administrator," but only "the mayor" may remove. The removal half tracks state law. The appointment half does not: state law gives the mayor the appointment power (with council approval), not the council. To that extent the ordinance is preempted.

The opinion closes by flagging a structural confusion. Spearfish has an aldermanic government, but the council seems to be reasoning as if it had a city-manager form of government under SDCL Chapter 9-10. Under chapter 9-10, the governing body does hire and fire the city manager. But that requires changing the city's form of government by a vote of the registered electors under SDCL 9-10-1. Spearfish has not done that. So 9-14-13 controls.

What this means for you

For Spearfish aldermen and other South Dakota city council members

If a majority of you wants the City Administrator gone and the mayor refuses, your remedy is not a council vote. The council does not have the legal authority to terminate the Administrator's employment. What you can do: lobby the mayor publicly or privately; use the council's appropriation, salary, and budget powers; and, if the disagreement is serious enough, take it to the voters at the next mayoral election. You can also explore a citizen-driven petition to change the city's form of government under SDCL 9-10-1 to a council-manager form, in which case the council would gain the hiring and firing power. That requires an election of the city's registered voters, not just a council resolution.

For mayors

SDCL 9-14-13 gives you the absolute removal power over officers you appointed. "Absolute" is not figurative; Kierstead v. City of Rapid City used that word in 1976 and Patterson v. Linn reaffirmed it in 2001. A council resolution telling you to fire someone is advisory, not binding. But the inverse is also worth keeping in mind: you cannot delegate that removal decision back to the council either, because the Legislature vested it in your office.

For South Dakota municipal attorneys

Audit your city's ordinances for any provision that purports to let the council appoint or fire officers in an aldermanic city. Any such provision is preempted under SDCL 9-14-3 and 9-14-13 unless the city has formally adopted a council-manager form under chapter 9-10 by voter approval. If your city wants the council to have hiring and firing power over a senior administrative officer, the right path is a charter change under 9-10-1, not an ordinance.

For city administrators in South Dakota aldermanic cities

Your employment runs through the mayor, not the council. A hostile council majority does not have the legal power to remove you on its own. That does not mean you ignore the council; they control your budget, your authority, and any pay or policy changes. But the formal terminating authority is the mayor.

For human resources directors and city clerks

When a separation of a mayor-appointed officer is being processed, the authorizing document is a decision by the mayor under SDCL 9-14-13, not a council resolution. A council resolution alone, without a mayoral termination decision, will not stand if challenged.

Common questions

Q: Could the council override the mayor's refusal to fire the Administrator with a supermajority vote?
A: No. The opinion is explicit that the mayor's removal power under SDCL 9-14-13 is absolute. There is no override-vote mechanism in chapter 9-8 (aldermanic government) for removing a mayor-appointed officer. The Supreme Court in Patterson specifically rejected interpretations that would let the council annul that power.

Q: What about a "no-confidence" vote? Does that do anything legally?
A: It is a political signal, not a legal action. The council can pass a resolution expressing no confidence, but it does not terminate anyone or compel the mayor to act. The Administrator continues to serve until the mayor decides to remove them.

Q: Could Spearfish change its form of government to a city-manager form so the council would have firing power?
A: Yes, but it requires an election of the registered voters of the municipality, per SDCL 9-10-1. The change cannot be done by ordinance alone. If voters approve, the city moves to chapter 9-10 and the governing body (council) gains the hiring and firing authority over the city manager under SDCL 9-10-3 and 9-10-11.

Q: What is the difference between a City Administrator and a city manager under SD law?
A: A city manager is a statutory office under SDCL Chapter 9-10 that exists only when the city's form of government has been formally changed. A City Administrator is a discretionary appointive officer that an aldermanic city can hire under the general appointment power of SDCL 9-14-3 to handle day-to-day operations. The Administrator answers to the mayor; the manager answers to the governing body.

Q: Does this affect cities with a commission form of government?
A: Spearfish is aldermanic, so the opinion analyzes only chapter 9-8 and chapter 9-10. Commission-form cities are governed by different chapters (9-9), with their own appointment and removal rules. Don't apply this opinion verbatim outside the aldermanic form.

Q: Can the mayor fire the Administrator without notice or cause?
A: SDCL 9-14-13 lets the mayor remove "if the mayor believes that the interests of the municipality demand such removal." There is no statutory cause requirement, but employment-law issues (an employment contract, due-process rights of public employees, anti-discrimination law) may still apply depending on the Administrator's contract and status. The statute speaks to who has the removal power, not to what limits employment law places on its exercise.

Q: What about an Administrator hired before this opinion was issued? Are existing contracts in jeopardy?
A: The opinion does not invalidate existing employment; it interprets the statute as it has always read. To the extent prior practice involved the council acting as the appointer, that practice was outside its legal authority. Going forward, the appointment side has to be the mayor (with council approval), and the removal side has to be the mayor alone.

Background and statutory framework

South Dakota offers municipalities a menu of government forms. Chapter 9-8 sets up the aldermanic form, with a mayor as chief executive and a council of aldermen. Chapter 9-9 sets up the commission form. Chapter 9-10 sets up the council-manager form, in which the council hires a professional manager to run operations. Each form has its own division of authority between the elected body and the executive.

Chapter 9-14 provides general rules for appointive officers in all forms. SDCL 9-14-3 sets the appointment rule for aldermanic and commission cities: the executive nominates, the body approves. SDCL 9-14-13 sets the removal rule for aldermanic cities: the mayor decides.

The Supreme Court line on these provisions is consistent. State v. Williams (1894) treated the removal power as executive. Kierstead v. City of Rapid City (1976) called it absolute. Patterson v. Linn (2001) explicitly rejected an attempt to let the council unwind a mayoral removal decision. Preserve French Creek (2024) recently reaffirmed the broader rule that conflicting local ordinances are preempted by state law.

When a council wants to behave as if it had hiring and firing power, the lawful path is to change the form of government to a council-manager form under SDCL 9-10-1, which requires a vote of the registered electors. Short of that, the aldermanic structure means the mayor controls the removal decision.

Citations and references

Statutes:
- SDCL Chapter 9-8 (aldermanic government generally)
- SDCL 9-8-1 (mayor as chief executive)
- SDCL Chapter 9-10 (council-manager form)
- SDCL 9-10-1 (form change requires voter election)
- SDCL 9-10-3, 9-10-11, 9-10-15 (city manager appointment, removal, duties)
- SDCL 9-14-3 (mayor's appointment power)
- SDCL 9-14-13 (mayor's removal power)

Cases:
- Kierstead v. City of Rapid City, 248 N.W.2d 363 (S.D. 1976)
- Patterson v. Linn, 2001 S.D. 135, 636 N.W.2d 467
- Sioux Falls v. Peterson, 71 S.D. 446, 25 N.W.2d 556 (1946)
- State v. Williams, 6 S.D. 119, 60 N.W. 410 (1894)
- Preserve French Creek, Inc. v. County of Custer, 2024 S.D. 45, 10 N.W.3d 233
- Rantapaa v. Black Hills Chair Lift Co., 2001 S.D. 111, 633 N.W.2d 196
- Olson v. Butte County Comm'n, 2019 S.D. 13, 925 N.W.2d 463
- State v. Biteler, 2025 S.D. 73
- State v. Armstrong, 2020 S.D. 6, 939 N.W.2d 9

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