*1 Tappe was con reasonably believed allegedly him
tinuing represent when in the title.
promised to correct defects affect disputes this case
The factual continuing representation doc
whether the apply and thus toll the statute
trine should
of limitations. summary judgment for
The trial court’s grounds that
Tappe on the the action limitations, the statute
barred
15-2-14.2, should be reversed. jury
remand for a determination of therefore, and, re-
disputed factual issues dissent.
spectfully SEYMOUR, Appellant,
Jack DAKOTA
WESTERN VOCATIONAL Rapid INSTITUTE and
TECHNICAL Education, Appellees.
City Board of
No. 15705.
Supreme Court of South Dakota. Briefs
Considered on Nov. 1987. Feb.
Decided 1988. *2 purposes
lic officer” for of SDCL 3-16-7. The court stated:
It is. the duties
department
of the
head
supervisor
and farm
which contemplate
that he will use discretion with the mon-
Richards,
Brady
Thomas E.
of
Hood &
ey
property
which are entrusted to
P.C.,
Brady,
Spearfish,
appellant.
for
his care.
finding
is the
of this Court
McCullen,
Bangs,
E.
Thomas
Simmons of
that-his duties
department
head and
Simmons,
Foye
Rapid City,
Butler
&
for
supervisor were such that he would be
appellees.
deemed a
officer.
officer,”
“public
As a
the court found the
WUEST, Chief Justice.
appellant
3-16-7,
violated SDCL
pro-
which
Appellant,
Seymour, appeals
cir-
Jack
a
n
vides:
affirming
employer’s
cuit court decision
his
officer,
Every public
being authorized
employment.
decision to terminate his
We
any
to sell or lease
property
or make
affirm.
contract in his
capacity,
official
vol-
who
instructor,
Appellant
super-
anwas
farm
untarily becomes
individually
interested
department
visor and
head at Western Da-
sale,
contract,
in such
lease or
directly or
Institute,
kota Vocational
post-secondary
a
indirectly,
guilty
is
of a
class misde-
governed by
vocational-technical school
meanor.
employment
SDCL ch. 13-39. His
contract
The
by violating
court then held
pro-
the
responsible
made him
purchasing sup-
for
3-16-7,
visions of
appellant
SDCL
the
had
plies,
program.
feed and seed for the farm
employment contract,
breached his
in
December, 1984, appellant began doing
In
pertinent part provided:
business as
Company.
J & S Cattle
Later
party
part
perform
The
of the first
is to
month,
appellant purchased
four-
all
assigned by
party
duties
of the
ninety
teen stacks or one hundred
tons of
part
supervision
second
under the
of its
later,
days
alfalfa at
a ton. Several
$55.00
Director
pro-
accordance with the
appellant sold 27.2 tons of alfalfa to the
visions of the laws
the State
South
Institute at
a ton. The Institute
$65.00
Dakota,
policy
school
and administra-
paid J
Company
hay.
& S Cattle
for this
regulations
tive
and all administrative
12, 1985,
February
On
the co-directors of
relating
directives
to the duties
appellant
the Institute
they
notified
party
part.
(Emphasis sup-
first
make a recommendation to the Institute
plied).
Board he be dismissed for reason of his
personal
purchase
interest
in the school’s
contracting
upon
The
Board
the recom-
hay.
hearing
of the
After a
the Institute
mendation of
Cooperative
Board
appellant’s
Board found
conduct constitut-
dismiss
teacher at
time
vio-
ethics,
for
professional
ed a violation of his
a
contract, gross immorality,
lation
law,
plain
violation of South Dakota
and a
duty,
incompetence, flagrant neglect of
violation of his contract. The Board dis-
conduct,
unprofessional
or failure to
appellant pursuant
missed the
to SDCL
comply
by the
with an order as issued
plain
13-43-15 for
violation of contract and
through
Board
and not in
the Director
flagrant neglect
duty.
(Em-
conflict with terms of the contract.
court,
appeal
appellant
On
to circuit
ar-
phasis supplied).
gued
finding
the Board erred in
he had
Appellant contends the court erred
breached
employment
his
contract. The
determining
“public
he was a
officer” for
disagreed.
trial court
purposes of
3-16-7.
opinion incorporated
the memorandum
by
person
the trial
question
court into its
of fact
The
whether a
hold
law,
ing public position
“public
and conclusions of
the court held that
is
officer” or
a
a
appellant
“pub-
public “employee”
primarily
be
is
should
considered a
merely-a
statutory
body
and duties.
a
powers
municipality
through
or other
one of
Harding County,
legislature.
conferred
person
Thus,
a
important
Whether
N.W.2d
an
distinction between
“public
rather than mere
office”
holds
the status of
an officer and that
an
upon
depend
does not
what
employment
employee rests on the fact that an office
question
particular office
on,
by,
provi-
is created
some
and based
*3
called,
upon
“power granted
the
and
but
law,
sion of
not arise
and does
out of
willed,
performed,
the duties and functions
contract,
employment,
an
whereas
al-
and other circumstances which manifest
law,
though may
by
it
usually
be created
position and make
the true character of the
out of
arises
a contract between the
office,
public
irrespective
it
and mark
a
and,
government
employee;
and the
designation.”
Griggs,
at
its formal
contract,
by
where
is conferred
432,
Generally, requisites one of an not fit the definition of officer office is that it created a does must be holding. in so the trial court erred statutory provision, constitutional or or However, appellant HENDERSON, was also terminat- Justice (specially concur- ring). for a violation ed the Board of ethics. reviewing case, facts of this it decision, In its quite becomes evident was adopted Institute board found it had only teacher, not he was depart- also a Vocational
American Association Code of ment head supervisor and farm entrusted Ethics, July, part states duty with the and responsibility spend- that: ing money on behalf of employer, his The vocational educator: Therefore, Institute. he was wearing two hats. professional 3. Bases action and ! deci- sound, upon objective sions rationale Whatever hat wearing, he was he was favors, gifts, per-
without influence of
acting;
public employee
and he plainly
political advantage.
sonal or
violated his contract
in that he
in-
in a classic case of self-dealing.
volved
We hold the sale of the alfalfa to the
*4
whereby appellant
profit
Institute
In-reviewing
decision,
made a
the circuit court’s
per
of
I am
ton was a violation of ethics
convinced that the
recog
$10.00
circuit court
¡the
nized
two
finding.
Seymour
and the Board was correct in so
hats which
could
theoretically
wear
unprofessional
This breach of ethics was
and the third one which
wear,
he
to
whereby
plainly
conduct for which he could
he
be terminated
violat
tried
his;
ed
contract and
Although
flagrant
“at
time.”
committed a
the trial court
neglect of duty. The Board of
upheld
have
the Insti
the Board’s decision for
Seymour
tute dismissed
reason,
plain
for
wrong
violation
we will not overturn a
flagrant neglect
of contract and
duty.
of
right
though
result even
it is based on a
Thus, the Board and the circuit court
Miller,
has
wrong reason. Holmes v.
71 S.D.
meeting
an absolute
of the minds.
258,
(1946).
DISMISSAL contracting upon Board recom- The HENDERSON, J., specially concurs. Cooperative Board mendation of the any time for viola- dismiss teacher at SABERS, JJ., MORGAN and concur contract, gross immorality, incom- tion of in result. petence, flagrant neglect duty, unpro- MILLER, J., conduct, deeming comply himself fessional failure disqualified, participate. by the Board did not with an order as issued Furthermore, in
through the Director and not conflict I distinguish would with terms the contract. Harding County, 3 N.W.2d (1942), majority, relied on be- advantage Seymour took of his cause it compensa- involves a workman’s profiteered against our state law. tion claim only purports pub- to define acting he SDCL 3-16-7. When purposes lic official for the of workman’s manager Agri- farm and chairman of the compensation claims under SDC 64.- Technology Department, receiving cultural 0102(2)(b) (now 62-1-3(2)). SDCL Inas- compensation positions, extra for these Seymour much as is not a com- worker’s occupied position trust and em- claimant, pensation I distinguish ployment. 3-16-1. See SDCL Under Griggs. 6-1-1, Seymour’s SDCL sale alfalfa to the Institute was “null and void from the I would hold that the trial court arrived beginning.” legal premises, In all of the I at the correct wrong decision for the rea- would sustain circuit court. son, specifically it relied on SDCL 3-16-7 rather than on SDCL 6-1-1.
MORGAN, (concurring result). in Justice I appears concur the result. to me SABERS, result). (concurring Justice is an officer of the Western only. concur the result I would However, Dakota Vocational School. rath- affirm the trial court’s result and its rea- 3-16-7, relying er than on Seymour’s sons. duties and functions were general, deals with officers in I would so clearly those of a officer even under provisions 6-1-1, hold under the of SDCL *5 upon by cited and relied provides, pertinent part: majority. Griggs Harding County, any It shall be unlawful for officer of S.D. N.W.2d 485 county, municipality, township or district, school who has been elected or “public was a officer” with re- appointed, to be interested ... spect to his duties and functions as farm contract entered into said ... school manager, only paid even if he was $200 purchase district for the ... of commodi- regular pay. over teacher He “voluntar- ties, materials, supplies, equipment ily” became individually” “interested kind, expense, price or considera- school’s “contract” and violated SDCL 3- paid tion of funds_ which is 16-7. He also violated 6-1-1. As added.) (Emphasis such, properly discharged he was for the right reasons. provide SDCL 6-1-2 does for certain ex- ceptions foregoing, to the but this transac-
tion does not fall within of them.
agree Seymour’s with the trial court that department supervi- head and
sor were such would be deemed a opposed merely officer as an em-
ployee.