CHAPTER 3-17
REMOVAL FROM OFFICE
3-17-1 Removal of constitutional state officers by Governor--Grounds--Notice and hearing.
3-17-2 Removal of appointive state officers by Governor without cause.
3-17-3 Removal of local law enforcement officers by Governor--Grounds.
3-17-4 Notice and hearing on removal of law enforcement officer.
3-17-5 Law enforcement officer removed from office not eligible for new appointment during term--Salary payment for office as misdemeanor.
3-17-6 Grounds for removal of local officers from office.
3-17-7 Proceedings for removal of local officer--Pleadings and process.
3-17-8 Suspension of local officer pending removal proceedings.
3-17-9 Judgment of ouster in removal proceedings--Enforcement of judgment--Salary during period of suspension if officer vindicated.
3-17-10 Officer allowed expenses of defense after judgment for him in removal proceedings.
3-17-11 Advancement of appeals on Supreme Court calendar--Circuit court order not stayed pending appeal.
3-17-12 Suspension of state's attorney or sheriff pending prosecution.
3-17-13 Effect of suspension.
3-17-14 Appointment of acting state's attorney or sheriff.
3-17-15 Compensation of acting state's attorney or sheriff.
3-17-16 Powers and duties of acting state's attorney or sheriff.
3-17-17 Restoration of state's attorney or sheriff to office.
3-17-18 Time for trial of state's attorney or sheriff.
3-17-19 Removal provisions unaffected.
3-17-20 Suspension of certain county officials pending completion of criminal prosecution--Appointment of person to discharge duties--Restoration to office.
3-17-21 Leave of absence status of suspended person.
3-17-22 Compensation and duties of temporary appointee.
3-17-23 Suspension of county commissioner pending completion of criminal prosecution--Restoration to office.
3-17-24 Removal from office provisions unaffected.
3-17-1. Removal of constitutional state officers by Governor--Grounds--Notice and hearing.
All constitutional state officers not liable to impeachment may be removed by the Governor, after notice and hearing, for crimes, misconduct, or malfeasance in office or for drunkenness or gross incompetency.
Source: SL 1901, ch 192, § 1; RPolC 1903, § 1804; RC 1919, § 7009; SDC 1939, § 48.0201.
3-17-2. Removal of appointive state officers by Governor without cause.
All state officers not liable to impeachment and not subject to removal by the Governor, in accordance with the provisions of § 3-17-1, and appointed by the Governor with or without the advice and consent of the Senate, shall be subject to removal by the Governor without assigning cause therefor.
Source: SL 1901, ch 192, § 2; RPolC 1903, § 1805; RC 1919, § 7010; SDC 1939, § 48.0202.
3-17-3. Removal of local law enforcement officers by Governor--Grounds.
The Governor shall have power, after notice and hearing, to remove from office any state's attorney, sheriff, or police officer, or any deputy or assistant state's attorney, or deputy sheriff who shall willfully fail, neglect, or refuse to perform any of the duties imposed upon him by, or to enforce any of the provisions of law relating to intoxicating liquors, or who shall willfully fail, neglect, or refuse to perform any duties imposed upon them by law, or who shall be guilty of intoxication or drunkenness, or who shall be guilty of the violation of any law, or who shall assist or connive in the violation of any law, or who shall be grossly incompetent to perform the duties of his office.
Source: SL 1917, ch 281, § 2; RC 1919, § 7011; SL 1923, ch 248; SDC 1939, § 48.0203.
3-17-4. Notice and hearing on removal of law enforcement officer.
Proceedings for the removal of any such officer may be commenced either by the Governor on the Governor's own motion, or on written complaint of any citizen of the state, filed with the Governor. Written notice of the time and place fixed for the hearing of the complaint, together with a copy thereof, must be personally served on the officer at least ten days before the hearing.
Source: SL 1917, ch 281, § 2; RC 1919, § 7011; SL 1923, ch 248; SDC 1939, § 48.0203; SL 2023, ch 3, § 20.
3-17-5. Law enforcement officer removed from office not eligible for new appointment during term--Salary payment for office as misdemeanor.
Any person removed under the provisions of §§ 3-17-3 and 3-17-4 shall be ineligible to hold any public appointive or elective office or position of the state or any political subdivision thereof, during the unexpired part of the term of office to which such person was elected or appointed, and from which he has been removed.
It is a Class 2 misdemeanor for any officer or board to allow or pay any person so removed, any salary for any public appointive or elective office or position during the period for which he shall be disqualified to hold such office or position, and any person or board who shall allow or pay any such salary contrary to the provisions of this section shall be liable to the state or political subdivision as the case may be, for the salary so paid or allowed.
Source: SL 1917, ch 281, § 2; RC 1919, § 7011; SL 1923, ch. 248; SDC 1939, § 48.0203; SL 1980, ch 24, § 47.
3-17-6. Grounds for removal of local officers from office.
Any officer of any local unit of government may be charged, tried, and removed from office for misconduct, malfeasance, nonfeasance, crimes in office, drunkenness, gross incompetency, corruption, theft, oppression, or gross partiality.
Source: PolC 1877, ch 22, § 3; CL 1887, § 1387; RPolC 1903, § 1806; SL 1915, ch 268, § 1; RC 1919, § 7012; SL 1929, ch 214; SDC 1939, § 48.0204; SL 1977, ch 57; SL 1981, ch 177, § 2.
3-17-7. Proceedings for removal of local officer--Pleadings and process.
The proceedings for removal shall be in the nature of a special proceeding, and shall be brought in the name of the state by the state's attorney of the county in which the officer charged resides, upon his own relation, or by the attorney general of the state upon his own relation, and must be so brought by either of such officers when so directed by the Governor. Such proceeding shall be commenced by the filing of a complaint in the office of the clerk of courts of the proper county, which complaint shall contain a brief and concise statement of the facts constituting the cause of action, without unnecessary repetition and the issuance of a summons in the form of a relief summons in civil action, which summons shall require the defendant to answer the complaint within ten days after the date of service thereof, and shall be served by the sheriff or other officer authorized to serve process, by handing to and leaving with the defendant, personally, a copy of the summons, accompanied by a copy of the complaint, and such proceeding shall be brought on for hearing and determination upon a notice of not less than five days, served upon the opposite party or his attorney, except as hereinafter provided, whereupon it shall be the duty of the judge of the circuit court to at once appoint and hold a special term thereof, at which term the issues in such proceeding shall be heard and determined by the court.
Source: PolC 1877, ch 22, § 3; CL 1887, § 1387; RPolC 1903, § 1806; SL 1915, ch 268, § 1; RC 1919, § 7012; SL 1929, ch 214; SDC 1939, § 48.0204.
3-17-8. Suspension of local officer pending removal proceedings.
At any time after the commencement of the proceeding under § 3-17-7 the court shall, upon satisfactory showing, suspend the accused from the functions of his office until the final determination of the issues, and upon such suspension the judge shall immediately appoint some competent person to fill the office during such suspension.
Source: PolC 1877, ch 22, § 5; SL 1881, ch 123, § 1; CL 1887, § 1389; RPolC 1903, § 1808; SL 1915, ch 268, § 1; RC 1919, § 7013; SDC 1939, § 48.0205.
3-17-9. Judgment of ouster in removal proceedings--Enforcement of judgment--Salary during period of suspension if officer vindicated.
The judgment thereof, if against the defendant, shall be that of immediate ouster from his office, and declaring his office to be vacant.
If the judgment in such proceeding be that of ouster, and the defendant fails or refuses to surrender his office, the circuit court shall issue all needful writs or process, directed to the proper officer, for the execution of such judgment. If the ultimate determination of the issues in the proceeding be in favor of the accused, such suspension shall not work a forfeiture of his salary during the period of such suspension.
Source: PolC 1877, ch 22, §§ 3, 5; SL 1881, ch 123, § 1; CL 1887, §§ 1387, 1389; RPolC 1903, §§ 1806, 1808; SL 1915, ch 268, § 1; RC 1919, §§ 7012, 7013; SDC 1939, §§ 48.0204, 48.0205.
3-17-10. Officer allowed expenses of defense after judgment for him in removal proceedings.
If the final determination of such proceeding be favorable to such accused officer, he shall be allowed the reasonable and necessary expenses he has incurred in his defense, including a reasonable attorney fee, to be fixed by the court or judge. Such expenses shall be paid by the county, if he be a county officer; by the township, if he be a township officer; and by the municipality if he be an officer of such municipality.
Source: SL 1915, ch 268, § 1; RC 1919, § 7015; SDC 1939, § 48.0206; SL 1992, ch 60, § 2.
3-17-11. Advancement of appeals on Supreme Court calendar--Circuit court order not stayed pending appeal.
In case of appeal to the Supreme Court, such appeal shall be advanced and take precedence over all causes upon the court calendar, and be assigned for hearing as soon after the record on appeal and briefs are filed as the business of the court will permit. The taking of an appeal by the defendant and the filing of a supersedeas bond shall not operate to stay the proceedings of the circuit court or judge, or restore the defendant to office pending such appeal.
Source: SL 1915, ch 268, § 1; RC 1919, § 7015; SDC 1939, § 48.0206.
3-17-12. Suspension of state's attorney or sheriff pending prosecution.
If any state's attorney or sheriff is arrested for or charged with any offense against the laws of this state or the United States of America, and the Governor is informed that criminal proceedings are pending before any court or officer, the Governor shall in the case of a felony and may in the case of a misdemeanor suspend that state's attorney or sheriff from office until such charge is prosecuted. The effect of such a suspension is to relieve the affected state's attorney or sheriff from all responsibilities provided by law which are pertinent to that position.
Source: SL 1985, ch 28, § 1.
3-17-13. Effect of suspension.
A state's attorney or sheriff who is suspended from employment in accordance with the provisions of § 3-17-12 shall assume leave of absence status and shall receive the same salary and employment benefits to which he would otherwise be entitled to be paid by the county he represents. Except as otherwise provided in §§ 3-17-12 to 3-17-19, inclusive, a state's attorney or sheriff who is suspended pursuant to §§ 3-17-12 to 3-17-19, inclusive, has the same rights, benefits, and obligations as any county employee who is on a leave of absence status for any other purpose. Notwithstanding any other law, a state's attorney or sheriff shall receive credit for the period of suspension toward any retirement benefit afforded by the county represented if ultimately reinstated pursuant to §§ 3-17-12 to 3-17-19, inclusive.
Source: SL 1985, ch 28, § 2.
3-17-14. Appointment of acting state's attorney or sheriff.
The Governor shall, in the case of a state's attorney, appoint the attorney general or one of his assistants or some competent attorney of the state selected by the attorney general, and the Governor shall, in the case of a sheriff suspended pursuant to §§ 3-17-12 to 3-17-19, inclusive, appoint a suitable person to discharge the duties of such office during any suspension imposed in accordance with the provisions of §§ 3-17-12 to 3-17-19, inclusive.
Source: SL 1985, ch 28, § 3.
3-17-15. Compensation of acting state's attorney or sheriff.
The county in which an attorney is temporarily appointed state's attorney or a person is temporarily appointed sheriff shall pay such appointee for his services and expenses in an amount determined and fixed by the Governor and certified to the county auditor of the affected county.
Source: SL 1985, ch 28, § 4.
3-17-16. Powers and duties of acting state's attorney or sheriff.
Any attorney temporarily appointed may discharge all the duties of an elected state's attorney and shall speedily bring to hearing and determination any charges made against the state's attorney so suspended. Any person temporarily appointed as sheriff may discharge all the duties of an elected sheriff.
Source: SL 1985, ch 28, § 5.
3-17-17. Restoration of state's attorney or sheriff to office.
If it is determined during the criminal proceeding that the state's attorney or sheriff so suspended is not guilty of the offense charged, this fact shall be certified to the county auditor by the Governor, whereupon such suspended state's attorney or sheriff shall be restored to office provided the term for which he was elected or appointed has not expired.
Source: SL 1985, ch 28, § 6.
3-17-18. Time for trial of state's attorney or sheriff.
Any trial of a state's attorney or sheriff who has been charged with a criminal offense under the laws of this state, shall be commenced no later than sixty days from the date upon which formal charges are brought unless continued by court order.
Source: SL 1985, ch 28, § 7.
3-17-19. Removal provisions unaffected.
Sections 3-17-12 to 3-17-18, inclusive, in no manner affect provisions of law relating to the removal from office of a state's attorney or sheriff.
Source: SL 1985, ch 28, § 8.
3-17-20. Suspension of certain county officials pending completion of criminal prosecution--Appointment of person to discharge duties--Restoration to office.
If any officer is arrested for or charged with any offense against the laws of this state or the United States of America, and the board of county commissioners is informed that criminal proceedings are pending before any court or officer, the board of county commissioners may in the case of a Class 1 misdemeanor charge that is relevant to the responsibilities and duties of the office and shall in the case of a felony charge suspend that officer from office until such charge is prosecuted. The officer who is suspended pursuant to this section is relieved from all responsibilities provided by law which are pertinent to that office. The county commission shall appoint one of the officer's assistants or a suitable person to discharge the duties of the office during any suspension imposed in accordance with the provisions of §§ 3-17-20 to 3-17-22, inclusive. If it is determined during the criminal proceeding that the officer suspended is not guilty of the offense charged, the court shall so notify the board of county commissioners. If the term for which the officer was elected or appointed has not expired, the suspended officer shall be restored to that office by the board of county commissioners. For the purposes of §§ 3-17-20 to 3-17-22, inclusive, the term, officer, includes the county auditor, county treasurer, and county register of deeds.
Source: SL 2007, ch 22, § 1.
3-17-21. Leave of absence status of suspended person.
Any officer who is suspended from employment in accordance with the provisions of § 3-17-20 shall assume leave of absence status and shall receive the same salary and employment benefits to which the officer would otherwise be entitled to be paid by the county. Except as otherwise provided in §§ 3-17-20 to 3-17-22, inclusive, an officer who is suspended pursuant to § 3-17-20 has the same rights, benefits, and obligations as any county employee who is on a leave of absence status for any other purpose. Notwithstanding any other provision of law, an officer shall receive credit for the period of suspension toward any retirement benefit afforded by the county, if the officer is reinstated pursuant to § 3-17-20.
Source: SL 2007, ch 22, § 2.
3-17-22. Compensation and duties of temporary appointee.
The county in which an officer is temporarily appointed pursuant to § 3-17-20 shall pay the appointee for services and expenses in an amount determined and fixed by the board of county commissioners for such office. Any person temporarily appointed as an officer may discharge all the duties of such office.
Source: SL 2007, ch 22, § 3.
3-17-23. Suspension of county commissioner pending completion of criminal prosecution--Restoration to office.
If any county commissioner is arrested for or charged with any offense against the laws of this state or the United States of America, and the board of county commissioners is informed that criminal proceedings are pending before any court or officer, the remaining board of county commissioners may in the case of a Class 1 misdemeanor charge that is relevant to the responsibilities and duties of the office and shall in the case of a felony charge suspend that county commissioner from office until such charge is prosecuted. The county commissioner who is suspended pursuant to this section is relieved from all responsibilities provided by law which are pertinent to that office. If it is determined during the criminal proceeding that the county commissioner suspended is not guilty of the offense charged, this fact shall be certified to the board of county commissioners. If the term for which the county commissioner was elected or appointed has not expired, the suspended county commissioner shall be restored to that office by the remaining board of county commissioners.
Source: SL 2007, ch 22, § 4.
