What Happens When a Commission Seat is Vacant

February 2026 | Eric Jennings, Lawrence County Commissioner Opinion Editorial, Black Hills Pioneer

State law dictates many aspects of our roles as county commissioners, including things like qualifications, duties, what to do in the case of a vacancy in the commission. There are several reasons a vacancy happens - death, resignation, removal or failure to qualify being the most prominent reasons.  Vacancies occur more than you may think. 

I personally am aware of four vacancies that have occurred in the past two months across South Dakota’s 66 counties.  They have all been the result of death or resignation due to health issues.

State law establishes a time frame a that county commission must appoint a commissioner to fill out the term of the vacated position.  Prior to 2025, South Dakota Codified Law (SDCL) 3-4-4 called for the commission to immediately appoint or fill the vacant position. There were differing interpretations of the word “immediately”. Some commissions interpreted it literally, as in right now, others interpreted it more liberally and were taking 1-3 months to fill the position. In 2024 Lawrence County took steps to change that state law and passed a resolution to provide a more reasonable amount of time to fill the position. That resolution was adopted by the South Dakota Association of County Commissions who found a sponsor for the bill and lobbied for the law to be amended.  In 2025 the legislature agreed and passed Senate Bill 84. The new law took effect on July 1, 2025, replacing the term immediately with a provision that allows county commissions up to 35 days or the conclusion of the second meeting, whichever is later. It was worded that way because some county commissions in South Dakota only meeting once per month, thus the language for 35 days was needed. It is in the best interests of the counties to fill the vacant position sooner than later. Most county commissions have five members and it requires three affirmative votes to pass a motion. Some decisions, such as variance requests decided by the Board of Adjustment, require a super majority of four affirmative votes.  In the case of variances, one dissenting vote would deny the request. State law does provide a solution for a 2-2 tie vote when one commission position is vacant, allowing the Auditor to act as a commissioner and cast the deciding vote.  

While SDCL 3-4-4 creates a deadline to fill the vacancy, it does not describe the method for selecting a candidate to appoint. That flexibility allows the individual county commissions to decide on a method that fits their county the best. Counties typically base their decisions on applications and/or interviews with prospective commissioners to choose the person to fill the remainder of a vacant term. It is worth noting, that if a vacancy occurs within 30 days of an election, no appointment shall be made unless it be necessary to carry out such election and the canvass the election according to law.

Lawrence County once again needed to fill a vacant position on the commission with the passing of Commissioner Sleep. We did so according to state law and as effectively and efficiently as possible.