First COVID-19, now Marijuana: time to dive into the Pool if you haven’t already

This has been an unprecedented year for local governments in South Dakota. In March, the COVID-19 pandemic arrived in South Dakota and we are still dealing with its effects. In November, South Dakota voters approved two ballot measures authorizing recreational and medical use of marijuana (collectively “these measures”). Many of the implementation issues for these measures will soon be addressed at the state level by the South Dakota Legislature, the South Dakota Department of Health, and the South Dakota Department of Revenue. As of this writing, the nature and extent of the impact on local governments stemming from these measures and State Government’s response to them is unknown.

Certain areas will also need to be addressed by local governments. Section 10 of the State Constitutional Amendment on recreational marijuana states:

§ 10. A local government may enact ordinances or regulations governing the time, place, manner, and number of licensees operating within its jurisdiction. A local government may ban the establishment of licensees or any category of licensee within its jurisdiction. A local government may allow for cultivation at private residences within its jurisdiction that would otherwise not be allowed under §4(2)(c) so long as the cultivation complies with and §4(2)(b) and the other requirements of this article. A local government may not prohibit the transportation of marijuana through its jurisdiction on public roads by any person licensed to do so by the department or as otherwise allowed by this article.

Local governments will have many questions to consider and to resolve, including but not limited to:

  1. Should a local government adopt a zero-tolerance or a no-impairment based drug policy for its employees? What will be considered “under the influence” for the various amounts of marijuana that could linger in a local government employee’s system? Can the standards be more stringent for governmental employees in safety-sensitive positions such as law enforcement officers, fire fighters, or perhaps regular operators of governmental vehicles or other heavy machinery?
  2. How will these measures affect any prohibitions on prior drug crimes of certain applicants such as law enforcement officers?
  3. What changes may be necessary to local zoning laws for allowing/disallowing establishments growing and/or selling marijuana in the community?

Only a public entity pool has the expertise and established resources to assist its fellow members on these unique public sector issues in a timely and proactive manner. If your public entity is not a Member of the South Dakota Public Assurance Alliance (SDPAA), then now is a great time to become one.

The SDPAA has established unique tools to assist your public entity through all phases of the implementation of these measures. The SDPAA’s Employment Practices Hotline and Government Practices Hotline can offer an hour of free legal advice from an expert attorney on almost any subject including employment policies and zoning issues. The only issue the hotlines cannot address involves any criminal prosecution of the existing marijuana laws.

Through the SDPAA’s loss control vendor Safety Benefits, Inc. (SBI), SDPAA Members receive guidance from an SBI team with centuries of collective experience in advising local governments on emerging issues in the public sector. In the coming months, the SDPAA and its vendors will proactively monitor any new developments in the implementation of these measures and will furnish our fellow Members with recommendations and/or model policies to properly respond. If this sounds reminiscent of the SDPAA’s efforts during the pandemic, then that is our intention.

As a public entity pool, the SDPAA is uniquely qualified to assist you through any change in the local public sector landscape. The SDPAA was established by, for, and consists of only its 434 local government Members in South Dakota. The SDPAA’s Board of Directors is comprised of eleven members: nine are elected from among the SDPAA’s local government Members, and two are held permanently by the Executive Directors of the SDML and the SDACC. The Board governs SDPAA operations from its collective wisdom gleaned from almost four centuries of local government experience in SD serving as current or former County Commissioners, Mayors, City Councilors, County Auditors, City Administrators, City Finance Officers, and other local government officials. The SDPAA’s six-member internal team consists of public employees with extensive experience as former local officials: Mayor—13 years, City Councilor—3 years, Fire Chief—23 years, State’s Attorney—3 years, County Public Defender—4 years, and City Attorney—11 years. Our internal team’s industry experience includes one member who served as an adjuster for claims against local governments in SD for 21 years, two members who served as underwriters for insurers of local governments for a combined twenty-five years, and one member who defended claims asserted against dozens of local governments in SD for 16 years. Our team can sympathize and empathize with any issues facing your local government as we have likely been in your shoes.

If your public entity is not a Member of the SDPAA please contact the SDPAA at 800-658-3633 option 2 or by email at to inquire about all the services available to SDPAA Members.

David Pfeifle, Executive Director