South Dakota Removal Protection for a Veteran in Public Employment

Section 3-3-4 is a page down from the hiring preference and is worth more than it to anyone already employed. No person holding a public position by appointment or employment who belongs to a class to whom preference is granted under chapter 3-3 may be removed from the position, unless replaced by another person of a preference class. The exception is removal for incompetency or misconduct, and that has to be shown after a hearing, on due notice, upon stated charges, with a right of review by writ of certiorari, and the burden of proving incompetency or misconduct rests on the party alleging it. In a state with no general public-sector just-cause statute, that is a real procedural right and it attaches to the veteran alone. Every element is a place an employer can go wrong: the charges must be stated, the notice must be due, the hearing must precede the removal, and the employer carries the burden rather than the employee having to disprove the allegation. The classes protected are the same as the hiring preference: a veteran as defined in 33A-2-1, the unmarried spouse of a veteran who died in service or from a service-connected cause under 3-3-7, and the spouse of a disabled veteran who cannot exercise the right under 3-3-8. The exclusions in 3-3-6 apply here too, so department heads, policy-forming officials, private secretaries and persons in a strictly confidential relation to the appointing officer have none of this. The clause allowing removal where the veteran is "replaced by another person of a class to whom such preference is granted" is the one piece that cuts the other way, and it is unusual. A public employer that replaces a veteran with another veteran is outside the protection altogether. Two enforcement routes sit alongside it. Section 3-3-3 makes mandamus available both to an applicant refused the preference and to an incumbent whose salary was reduced with intent to force a resignation or discharge, which is the constructive-dismissal case. Section 3-3-5 makes noncompliance with any part of the chapter a Class 1 misdemeanour for the person in the public service who neglects or refuses to comply. None of this reaches private employment.