If South Dakota law requires one of the trustees of a county hospital to be a 'legally-qualified physician or nurse,' does that person have to hold an active medical license, or does an inactive license satisfy the rule?
Plain-English summary
Bennett County, a rural county in southwest South Dakota, was trying to fill a seat on its county hospital board. SDCL 34-8-7 said one of the five trustees had to be a "legally-qualified physician or nurse" who was also a "freeholder" (property owner) of the county and not employed by the hospital. In Bennett County, the pool of people who held an active medical license, owned property locally, and were not on the hospital's payroll was small enough to make the seat difficult to fill. The county chair asked the AG whether an inactive license would count.
The AG's answer was yes. The opinion turned on the difference between two phrases the Legislature could have used. If the statute said "licensed physician or nurse," an active license would be required. The statute did not. It said "legally qualified," which the AG read as referring to the person's educational and professional qualifications under SDCL ch. 36-4 (physicians) or SDCL ch. 36-9 (nurses), not to current active-status licensure.
The AG cited two well-known statutory construction cases. Caldwell v. John Morrell and Company and Petition of Famous Brands, Inc. both stand for the principle that the courts assume the Legislature meant what it said and chose its words deliberately. Reading "legally qualified" as a synonym for "licensed" would have collapsed two distinct concepts the Legislature kept distinct.
The AG also leaned on the structural argument. The hospital trustee is a manager, not a clinician. The trustee does not treat patients, write prescriptions, or perform procedures. Whether the person's license is active or inactive is irrelevant to the work the trustee actually does. What matters is that the person has the background and education to bring a medical perspective to hospital governance. A registered, inactive-status physician or nurse has that background equally with an actively-practicing one.
The bottom line: a registered, inactive license satisfies SDCL 34-8-7.
Currency note
This opinion was issued in 1993. 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. SDCL 34-8-7 and the licensure provisions in SDCL chapters 36-4 and 36-9 have been amended over the decades since this opinion was issued. Counties filling hospital trustee seats today should consult current SDCL provisions.
What the opinion meant at the time
For rural county commissioners trying to fill the SDCL 34-8-7 trustee seat, the opinion expanded the candidate pool considerably. Retired physicians and nurses, semi-retired practitioners, and others who had let their licenses go inactive were eligible to serve.
For inactive-status medical professionals living in small counties, the opinion confirmed that they could contribute to local hospital governance without reactivating their license. The trustee role drew on their professional background, not on an ongoing practice obligation.
For active-license requirements in other contexts (clinical privileges at the hospital, professional liability insurance, prescribing authority), the opinion was specifically limited. It addressed only the SDCL 34-8-7 trustee qualification. The same person serving as a trustee would still need an active license to perform any actual medical work.
For states' attorneys advising county commissions on trustee appointments, the opinion provided a clean rule. Verify that the candidate has met the licensure requirements at some point in their career; verify that their license is registered (whether active or inactive); confirm they are a freeholder of the county and not a hospital employee; appoint them.
Common questions
Q: What does 'legally qualified' mean for an SDCL 34-8-7 trustee?
A: It means the person has met the educational and professional requirements set out in SDCL ch. 36-4 (for physicians) or SDCL ch. 36-9 (for nurses) and holds a registered license. The 1993 AG concluded that an inactive license is sufficient.
Q: Does the trustee have to be a current member of the medical staff?
A: No. SDCL 34-8-7 actually excludes hospital employees from the trustee positions ("freeholders... not... an employee of the facility"). The medical perspective on the board comes from a non-employee with medical training.
Q: What if the physician or nurse never had a license, just medical training?
A: Then they are not "legally qualified" under SDCL 34-8-7. The 1993 AG required the person to have met the licensure requirements (held a registered license at some point), not just to have completed medical or nursing school.
Q: Can the same person be both a county hospital trustee and an active practicing physician elsewhere?
A: Yes, as long as they are not employed by the county hospital itself. The hospital employment bar in SDCL 34-8-7 is specific to that facility.
Q: Why did the Legislature require this medical seat on the board?
A: SDCL 34-8-7 does not articulate the rationale, but the structure suggests the Legislature wanted some medical expertise present in hospital governance decisions. A trustee with medical training can interpret medical-staff reports, evaluate quality-of-care issues, and bridge between the lay trustees and the medical staff.
Q: What if no inactive-status physician or nurse owns property in the county?
A: Then the seat would remain hard to fill. The opinion expanded but did not eliminate the constraints. The freeholder requirement (owning real property in the county) and the non-employment requirement still apply.
Q: Could a county hospital district under SDCL ch. 34-9A use the same approach?
A: The 1993 opinion addressed only SDCL 34-8-7. Other hospital-district statutes have their own trustee qualification provisions that would have to be analyzed independently.
Background and statutory framework
SDCL 34-8-7 authorizes county commissioners, in counties with a county-operated hospital, to appoint a five-member board of trustees to manage or assist in managing the hospital. The five trustees must be "competent and responsible freeholders of the county," with staggered five-year terms (so one trustee is appointed each July for a new five-year term). One of the five seats is reserved for a "legally-qualified physician or nurse."
The "freeholder" requirement means the trustee must own real property within the county. The "competent and responsible" language is the standard discretionary qualifier. The hospital-employee bar (implied in the question's facts) is the residency-and-independence requirement so that the trustee can exercise oversight without conflict of interest.
The 1993 AG's reading turned on two statutory-construction principles. First, the Legislature is presumed to choose its words deliberately. Caldwell v. John Morrell and Company and Petition of Famous Brands, Inc. are both staples in South Dakota for the proposition that the courts give statutes their plain meaning. Second, "legally qualified" and "licensed" are different concepts. The licensure chapters (SDCL ch. 36-4 for physicians, SDCL ch. 36-9 for nurses) define the substantive qualifications and also set the active-status and inactive-status framework. "Legally qualified" referred to having met the qualifications; "licensed" would have referred to the active practice authorization.
The opinion was also practical. In small rural counties like Bennett, the pool of actively-practicing physicians and nurses who own local real property and are not employed by the only local hospital can approach zero. Reading "legally qualified" broadly to include inactive-status licensees was the reading that made the statute workable in those counties.
Citations and references
Statutes:
- SDCL 34-8-7 (county hospital board of trustees; one must be legally qualified physician or nurse)
- SDCL ch. 36-4 (physician licensure)
- SDCL ch. 36-9 (nurse licensure)
Cases:
- Caldwell v. John Morrell and Company, 489 N.W.2d 353 (S.D. 1992) (statutes given plain meaning)
- Petition of Famous Brands, Inc., 347 N.W.2d 882 (S.D. 1984) (Legislature says what it means)
Source
Original opinion text
OFFICIAL OPINION NO. 93-05
Qualifications of Trustee of County Hospital
Dear Mr. Slattery:
You have requested an official opinion from this Office based upon the following factual situation:
FACTS:
As chairman, writing on behalf of the commissioners of Bennett County, you have requested an interpretation of SDCL 34-8-7. A situation has developed on your hospital board in which you need the phrase "legally-qualified physician or nurse" to be interpreted. The question you have is in regards to licensure. The person at issue does not actually perform any medical duties, but is there in an advisory capacity. In your area, it would be difficult to find a nurse or physician with an active status license who is a freeholder of the county and is not an employee of the facility.
Based upon the foregoing facts, you have the asked the following question:
QUESTION:
Whether a legally-qualified physician or nurse acting as a trustee of a county hospital, as provided in SDCL 34-8-7, need be licensed to actively practice?
IN RE QUESTION:
SDCL 34-8-7 sets forth:
"To manage or assist them in the management of a county hospital, the board of county commissioners may appoint a board of trustees consisting of five competent and responsible freeholders of the county, one of whom shall be a legally-qualified physician or nurse, in which case one member of said board shall be appointed for a term of one year, one for a term of two years, one for a term of three years, one for a term of four years, and one for a term of five years.
"Their terms of office shall expire on the first Monday of July of the year of expiration. Thereafter it shall be the duty of such board of county commissioners annually at their regular meeting in July to appoint for a term of five years a successor to the trustee whose term of office shall expire during that year.
"Any member of such board of trustees may be removed at any time by the board of county commissioners."
It is a fundamental principle of statutory construction that if the language of a statute is clear, then one can assume the Legislature meant what the statute says, and should give its words and phrases a plain meaning and effect. Caldwell v. John Morrell and Company, 489 N.W.2d 353, 364 (S.D. 1992). The courts will assume that statutes mean what they say and that the legislators have said what they meant. Petition of Famous Brands, Inc., 347 N.W.2d 882, 885 (S.D. 1984). In that vein, if the Legislature had meant to establish as a prerequisite that the trustee be licensed in any particular fashion, then it would have used the word "licensed." Instead, the Legislature used the term "legally qualified." In my opinion, if the physician or nurse meets the requirements of licensure as set forth in SDCL ch. 36-4 or ch. 36-9, respectively, then he or she satisfies the requirements of SDCL 34-8-7, regardless of his or her actual licensure status. The fact that the trustee is specifically limited to management in that capacity, as opposed to practicing, supports my conclusion. Obviously, the person's background and education are more important in this situation than is his or her license status, a fact the Legislature well may have contemplated, especially in relation to rural counties. Thus, the answer to your question is that a registered, inactive status license is sufficient to qualify the trustee for that position under the dictates of SDCL 34-8-7.
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