Patterson v. Linn
636 N.W.2d 467
S.D.
2001
Check Treatment

*1 467 against parties bring third action when indemnitee, not, here, when the but as contracting two

dispute is between the Inc. v. Bridgestone/Firestone,

parties. See Inc., 13, Services, F.3d

Recovery Credit 98 (2d Cir.1996); Assoc., Ltd. v. Hooper

21 Inc., 487, 74 N.Y.2d 549 Computers,

AGS 903, (1989); 365,

N.Y.S.2d 548 N.E.2d Houston, v.

Derr Const. Co. 854, (Tex.App.1992); Ray D. S.W.2d Contractor, Inc. v. Chris Nelsen &

Baker 450,

Son, Inc., Mich.App. (1965).

771, 773 and re- Judgment is reversed part to the issues raised

manded

Icehouse and affirmed as to the issues

raised Geissler. SABERS, AMUNDSON

KONENKAMP, Justices, concur. MILLER, Justice, Retired Chief at the time

was a member of the Court submitted, disqual-

this action was participate. and did not

ified

2001 SD 135

Beverly PATTERSON, Plaintiff Appellant, LINN, individually, L. and as

Clifford Sturgis, South

Dakota; and, City Sturgis, South

Dakota, Municipal Corporation, De- Appellees,

fendants and

No. 21745.

Supreme Court of South Dakota. May on Briefs 2001.

Considered

Reassigned Sept. 2001.

Decided Nov. *2 “for appointment a warrant of

executed 3,May year term of one from and after 1999, your until successor is Sturgis qualified.” elected and has appointment approved Council year 1999-2000.” “for the ter- day before Patterson’s [¶ 3.] On mination, mayor council con- city attorney. The attor- sulted with ney that Patterson “serves advised mayor mayor, and that the pleasure finance officer.” This can terminate the interpreta- counsel’s advice was based on in 9-14-13 and our decision tion of SDCL Tea, v. Finch 443 N.W.2d 632 Fourehe, Pluimer, Richard A. Belle (S.D.1989). attorney’s opinion did not appellant. plaintiff and city’s personnel poli- take into account and James S. Sarah Hirsch Wittmuss handbook, cy applicable handbook. Gunderson, Palmer, & Goodsell Nelson of officials, appointed city management to “all Nelson, City, for defendants and Rapid part- employees, employees contract appellees. employees,” granted employees cer- time pretermination rights. procedures Its tain (on KONENKAMP, reassign- Justice right hearing included the to a and notice. ment). mayor 4.] The terminated [¶ statute, in mayor an alder- By [¶ 1.] 3, employment August gave on 1999. He the au- municipality has manic-governed termination, notice of intended no writ- no mayor ap- thority to remove officers the charges, explanation no ten statement Linn, mayor L. pointed. Clifford her, against hearing. evidence and no La- fired the finance Sturgis, summarily explained why gave he no mayor ter the one-year her term. during “I I for his decision: felt didn’t reason outlining legal pro- personnel policy has a pleasure.” my need to. She worked at employees, but it discharging cedures for multiple Patterson sued under [¶ 5.] finance officer was not followed. The complaint. grant- count The circuit court summary judg- brought granting suit. may- in summary judgment favor of the ed city, the cir- ment for the and the city, reasoning or and the that Patterson per- that even if the cuit court concluded employee. an at-will One count was policy applied, it could not override sonnel now parties, settled and Patterson mayor to re- empowering the statute appeals, asserting that the court erred move an officer. affirm. We. express holding that she did not have Background ruling and in contract for a term served as the Beverly Patterson city’s personnel handbook was Sturgis, Dakota. finance officer for South her inapplicable to case. April since She had worked for Analysis and Decision finance first as auditor and later as 3, 1999, reap- Our standard of review for sum- May officer. she was On in nu- mayor mary judgments has been recited pointed position, to the when the hinges argu her repeated not be cases and need merous Oleson, “except provid otherwise 1998 SD ment on the Kobbeman here. See ¶ 4, The circuit ed” the statute assert law, ruled, that Pat- as a matter of was modified court *3 not an enforceable one- by city employment policy. Statutory did have the terson authority As for its deci- year power contract. of officers is one of the removal 9-14-13, sion, court relied on SDCL municipalities. the “great” powers afforded an mayor power Tea, the to dismiss granting Finck v. 443 N.W.2d See of (S.D.1989).1 without appointed any officer at time interpret phrase 634 To the cause. “except provided” meaning as otherwise permit grant city a to tenure to a To address self-contradictory officer makes the statute claims, 9-14-13. It we construe SDCL pattern municipal and contravenes the of power to offi specifies mayoral remove statutory in our governance defined mayor appointed: cers the phrase “except scheme.2 The as otherwise In first and sec- aldermanic-governed an provided” logically apply only can to the mayor municipality ond class shall authority exceptions Legislature’s grant except provid- power have as otherwise statute, city’s authority to a by not any remove from office officer ed to exception for make an itself. him, appointed by whenever he shall be of the that the interest of appoint 9.] The to remove [¶ removal, demand such necessary exigencies ed officers is to the of report for his re- he shall reasons administrating local 12 government. regular at its next moval the council McQuillan, Municipal Corporations, meeting. 2000). (3d design § ed. 12.233 380 legislative in- SDCL 9-14-13. We discern in plain language is evinced of SDCL whole, by reading the statute as a tent provides mayor may It 9-14-13. relating along with enactments same when, in an officer remove ¶ Barton, 52, 8, subject. State v. 2001 SD in opinion, sole removal is the best interest omitted). (citations 275, 278 625 N.W.2d Finck, municipality. of See 443 no presume intended We interpretation Patter N.W.2d at 634. The purpose. or unreasonable Id. absurd principles with the of son advances clashes power appears grant a of be Where municipal upheld Ruple Weinaug: law in statute, by strictly we will re- delimited by the constitution or power given [The] in against municipality solve a taken an officer from office v. Peter- statute to remove grant. excess of that Sioux Falls son, 446, 448, be exer- hearing may N.W.2d 557 without notice or 71 S.D. 25 ordinance, by grant municipal notwithstanding a cised (1946)(interpreting law, power). by appointment, or order police 9-14-13, pro- for removal is interpreting 1. we wrote in officials. Another method on the Finck that this statute confers Further- vided in SDCL 3-17-6 3-17-7. appointed more, “full and absolute municipal may be removed whenever, opinion, officers in his the interests duty "palpable omission of ... the court Finck, require 443 N.W.2d at it[.]” misconduct, oppression, or malfeasance 634. discharge office." of the duties SDCL 9-14-37. noteworthy that SDCL 9-14-13 is not It is only removing method for local contrary reading A of this statute leads made to fix a definite attempt has been officer, provide result that a can term of office for to the inconsonant pro- hearing upon it powers for notice conferred override ceedings. Legislature. (S.D.1983) (emphases N.W.2d Affirmed. 12.] [¶ ordinances, added). City policies, like “reasonably strict” adher- stay must -within GILBERTSON, Justice, Chief statutory ambit. ence to their MILLER, Justice, Retired Chief ¶ 6, Schoenwald, 2001 SD

Marion v. concur. 213, 216. *4 AMUNDSON, and SABERS [¶ 14.] 9-14-13 as Interpreting SDCL Justices, dissent. entitle a com- advocates would Legis- annul effectively to mon council SABERS, (dissenting). Justice power of removal express grant lature’s plain lan- apparent It is outgoing regime an to install and allow provides May- guage of SDCL 9-14-13 cityA incoming regime. officers for an power employees or with could, term, at of a council the end In necessary. it is deemed that when existing of office to grant extended terms that em- regard, recognizes this statute officers, officers to serve pre-selecting thus ployees appointed by Mayor may be circuit incoming mayor. under the As the statute, however, The does not at-will. in an aldermanic form of recognized, court Mayor employees prevent hiring a from an ordinance could be government, such specific recognizes The statute for terms.3 majority passed by a vote of the aldermen. employ- power a limit on the to remove an mayoral Even a veto could SDCL 9-8-10. by conditioning power ee that with the a be overridden two-thirds vote provided.” language “unless otherwise 9-8-3; SDCL 9-19-11. council. SDCL The contained in SDCL 9-14-13 pre- theory, On Patterson’s what would in accord with the rule that South Dako- is granting appoint- a council from city clude state, employment ta is an at-will with consecutive, extended, officials or even ed exceptions employee that can remove an interpretation life terms? This runs coun- from the at-will SDCL 60-4-4. status. management structure general ter to the Edson, also Merritt v. See municipalities. (S.D.1989) (holding that in the absence exceptions, few a [¶ 11.] With specified a written contract or term of mu- council cannot bind future councils: employment employee is terminable prohibited, example, nicipalities are at-will). incurring from indebtedness in excess of erroneously majority opinion The appropriated year. for a fiscal See interpret phrase ‘except states that “to (identifying excep- SDCL 9-21-8 limited 9-21-15; provided’ meaning per- to tions); as otherwise SDCL see also grant mit a tenure to a McQuillan, § supra 41.10 at 375. Under 9-14-13, self-contradictory and makes statute appointed po- Patterson’s pattern municipal gov- contravenes sition was terminable when the statutory in our scheme.” city’s decided it was best interests. ernance defined matter, ability competent expe- practical could to hire and retain and As a reasonably contemplated have that the inabili- personnel. rienced ty compromise to limit at-will status could upon Ruple, appreciate ion relies majority opinion fails to N.W.2d The Finch, Pat- appoint fact that chose to support 443 N.W.2d at one-year Mayor speci- term. terson to point. misplaced. its This reliance is ap- fied the term Council cases, upheld these we the termination of himself, Mayor, proved appointment. employees both based on their at-will sta- limit to terminate at- decided to Significantly, tus. neither case involved A cannot the at- will. council remove employees specified who were hired for a status, only Mayor can. The facts will distinguishable. term and are therefore here also demonstrate that Patterson was majority opinion [¶ 19.] The mistakes the serving Mayor. under employee protect to remove an that, if majority states with a blanket rule that interpretation of SDCL 9-14-13 is may no official be hired unless he she is adopted, it “would entitle a common coun- at-will. is hamstring- tantamount annul effectively Legislature’s cil ing municipal governments. protec- express grant and allow employee tions afforded a contract or term outgoing regime an install officers for legitimate bargaining are a tool for the incoming regime.” majority opin- *5 municipality experienced to attract parade ion that sets forth horribles competent personnel. al- SDCL 9-14-13 simply does not exist. This is not a situa- municipalities power, lows that it also outgoing tion where the officer made “mid- Mayor get person allows the rid of a night appointments” preserve his lega- expedience problem develops. with if a cy. majority opinion addressing The is Nonetheless, quick this action does not majority opin- issue that is not there. The municipality liability relieve the from if the horse, beating ion is not a dead it is beat- just removal was without cause. That de- ing a one. nonexistent only termination can be made at trial. majority opinion [¶ 17.] The seizes on Mayor hired Patterson for a of SDCL 9-14-13 to deter- Yet, hiring term and such Mayor ap- hires it was mine at-will. proved by Council. The warrant is clear that South Dakota at-will em- norm, ployment exception. appointment signed by is the not was Attachment). (See Why 60-4-M. would and the Legisla- Mayor. duplicate by reasserting position supported ture itself the at- taken will majority statute SDCL 9-14-13? would seem constitute if Pat- parties fraud were reversed. Instead, has indi- proved Mayor relinquished terson Mayor cated with SDCL 9-14-13 that has regard to remove her without official, any hire and fire even Therefore, liability. summary judgment at-will, if person protect is not inappropriate respectfully and I dis- public necessary. when it is deemed sent. clearly statute indicates has the an employee when he is AMUNDSON, Justice, joins

of “the this interests majority opin- demand.” The dissent.