Can a South Dakota city operating under a city manager form of government hire a full-time fire chief for its volunteer fire department, and can the fire department's members elect the chief themselves?
Plain-English summary
The City of Vermillion is a first-class city that runs under a city-manager form of government. Its fire department had been volunteer, with the firefighters electing their own chief part-time subject to city council approval. The city wanted to upgrade by hiring a full-time fire chief, funded with tax dollars, and a resolution was on the table to do exactly that. The wrinkle: the resolution also said the new full-time chief would be "selected solely by the fire department." Mr. Billings asked AG Mark Meierhenry whether either move was legally permissible.
Meierhenry answered both questions. On the first (can a city-manager city hire a full-time fire chief at all?), the answer was yes. SDCL 9-33-13 lets municipalities appropriate funds for the maintenance of voluntary fire departments. SDCL 9-14-1 lets cities appoint a list of specific officers (auditor, treasurer, attorney, engineer, chief of police, etc.) plus "other such officers as may be provided for by ordinance." A 1931-32 AG opinion had already established that a fire chief is an appointive officer. So the city has the power to create the position and fill it.
On the second question (can the firefighters do the picking?), the answer was no. Under SDCL 9-10-13 the city manager (and only the city manager) appoints and removes officers and employees in the administrative service of the city. That is the defining characteristic of a city-manager form: the manager is responsible for staffing the executive operation. The Legislature did not authorize the firefighters to take that authority away.
Meierhenry softened the no with a useful distinction from McQuillin on Municipal Corporations. A volunteer department can recommend candidates, even a slate of recommended candidates, without unlawfully delegating appointment power. The line is between recommending and deciding. The firefighters can say "we prefer Smith, Jones, and Lee, in that order"; the city manager has to be the one who actually appoints.
There was a separate procedural point. The city's plan to create the position by resolution was defective. SDCL 9-14-1 requires that "other such officers" (those beyond the enumerated list) be established by ordinance. A resolution does not carry the same legal weight as an ordinance and is the wrong vehicle to create a new city officer position. The city needed to pass an ordinance.
Currency note
This opinion was issued around 1980. 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 city-manager form statutes (SDCL chapter 9-10), the municipal officer appointment provisions (SDCL chapter 9-14), and the fire department funding statutes (SDCL chapter 9-33) have been amended over the decades. Civil service rules, collective bargaining law, and the relationship between city managers and volunteer departments have all evolved.
What the opinion meant at the time
For Vermillion specifically, the opinion was a redirect. The city could go forward with hiring a full-time fire chief, but it needed to do two things differently from the draft resolution: (1) pass an ordinance creating the position, and (2) leave the appointment authority with the city manager rather than the firefighters.
For other South Dakota cities under the city-manager form, the opinion is a reminder that the manager's appointment authority under SDCL 9-10-13 is exclusive within the administrative service. A city cannot work around that authority by drafting around it: ordinances and resolutions that purport to give appointment power to a department, a board, or a constituency are ineffective to that extent.
For volunteer fire departments transitioning to paid leadership, the opinion sets the template. The department can have meaningful input into the choice (recommending candidates, screening applicants, presenting a short list), but the formal appointment is the manager's.
For city attorneys advising on new officer positions, the opinion is a textbook example of ordinance-versus-resolution analysis. New officer positions need ordinances; routine administrative matters can be handled by resolution.
Common questions
Q: Does this same rule apply in cities that don't use the manager form?
A: No. The exclusive-appointment rule in SDCL 9-10-13 is specific to city-manager governments. In a mayor-aldermen city under SDCL chapter 9-8, the mayor (with council approval) appoints officers under SDCL 9-14-3. The general principle holds (officers are appointed, not elected by the workforce), but the appointing authority differs.
Q: Can the volunteer firefighters refuse to serve under a chief the manager appoints?
A: That's a personnel and policy question, not a legal one. Volunteer firefighters serve at their own discretion. If the department refuses to work with the manager's pick, the political consequences fall on the city; the legal authority to appoint stays with the manager.
Q: What if the city wants to abolish the volunteer department and create a paid fire department instead?
A: That's a structural change requiring an ordinance under the city's general municipal authority. SDCL 9-33-13's funding language covers both voluntary and paid departments in various ways. The decision is a council/manager call.
Q: Could the city create a civil service system that constrained the manager's appointment authority?
A: SDCL 9-10-13 is the source of the manager's authority. A civil service ordinance can impose qualifications, examination requirements, and procedural steps, but it cannot transfer the appointment decision to someone other than the manager.
Background and statutory framework
The city-manager form of government in South Dakota is one of the three principal first-class city structures, alongside the mayor-aldermen form and the commission form. The defining feature of the manager form is the professional administrator who runs the executive operation. The city council sets policy; the manager runs the city.
SDCL 9-10-13 places the manager at the center of personnel decisions. The Legislature's policy choice was to insulate administrative staffing from political dynamics by giving the manager (a professional administrator, typically hired through a search process) the appointment and removal authority.
SDCL 9-14-1 sets out a list of officers that any city can appoint and adds the catch-all "other such officers as may be provided for by ordinance." The list (auditor, treasurer, attorney, engineer, chief of police, policeman) does not include fire chief. So a fire chief, if appointed as an officer, comes in under the catch-all and must be created by ordinance.
The McQuillin Municipal Corporations treatise sections cited by Meierhenry (§§ 12.70 and 12.72) lay out the general American municipal law on the recommendation/appointment distinction. A delegation-of-power objection arises only when the appointing authority is bound by another body's choice. Recommendation, even from a constrained list, does not constitute delegation as long as the appointing authority retains final discretion.
Citations
- SDCL 9-10-13
- SDCL 9-14-1
- SDCL 9-33-13
- A.G. Report 1931-32, p. 523 (fire chief is an appointive officer)
- McQuillin Municipal Corporations §§ 12.70, 12.72 (3rd Ed.)
Source
Original opinion text
Appointment of Full Time Fire Chief
Dear Mr. Billings:
You have requested an Official Opinion from this office based on the following factual situation:
FACTS:
The City of Vermillion is a first class city which operates under a city manager form of government. The city presently has a volunteer fire department. Under the terms of the ordinances of the city, the fire department elects a part time fire chief subject to approval by the City Council. Although the fire department is a voluntary organization, the city, under its statutory authority, purchased fire fighting equipment. A resolution has been introduced which authorizes the expenditure of tax funds for the hiring of a full time fire chief. The resolution also provides that the fire chief shall be selected solely by the fire department. The city has not adopted a civil service ordinance.
Based upon the above factual situation, you have asked the following questions:
QUESTIONS:
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Does a municipality operating under a city manager form of government have the authority to hire a full time fire chief for a voluntary fire department?
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If the municipality has the power to hire a full time fire chief for a voluntary fire department can that person be selected solely by the members of the fire department?
IN RE QUESTION NO. 1:
There is no specific statutory provision which authorizes a municipality to hire a full time fire chief for its volunteer fire department. However, in view of the fact that SDCL 9-33-13 allows a municipality to appropriate funds for the maintenance of a voluntary fire department, it seems clear that a municipality has the power to hire a full time fire chief for its volunteer fire department. Furthermore, SDCL 9-14-1 confers on cities the authority to appoint 'an auditor, treasurer, attorney, engineer, chief of police, policeman, and other such officers as may be provided for by ordinance.' (Emphasis added.) A previous Attorney General's Opinion has established that a fire chief may be considered an appointive officer. See, A.G. Report 1931-32, p. 523.
IN RE QUESTION NO. 2:
The answer to this question is NO. Under a city manager form of government only the city manager has the power to appoint and remove officers and employees in the administrative service of the city. See, SDCL 9-10-13. 'There can be no appointment of an officer or employee in the public service without legal authority, express or implied, to make the appointment.' McQuillin Mun. Corp. § 12.70 (3rd Ed.). This is not to say that a volunteer fire department can have no input in the selection of its fire chief. That point is indicated by the following:
But the selection of an officer or employee upon the recommendation of a business organization, for example, a chamber of commerce or other civic organization, is not a delegation of the power to appoint. Nor does a requirement that the appointing authority choose from a specified number of recommended candidates constitute an unauthorized limitation on the power of appointment nor a delegation of a substantial portion of such power.
McQuillin Mun. Corp. § 12.72 (3rd Ed.). In view of that, a volunteer fire department could recommend to the city manager who their preference is for fire chief, but it could not dictate to the city manager who the fire chief would actually be. It should also be emphasized that your city's plan to provide for the hiring of the fire chief by resolution would be ineffectual. The establishment of a new city officer position must be accomplished by ordinance. See, SDCL 9-14-1.
Respectfully submitted,
Mark V. Meierhenry
Attorney General