September 13, 1977
Mr. George H. Danforth
Beadle County State's Attorney
312 Kansas Avenue, S.E.
Huron, South Dakota 57350
Official Opinion No. 77-79
Procedure for transmittal of monies to Law Enforcement Officers Training Fund
Dear Mr. Danforth:
Your request for an official opinion from this office states that Chapter 194 of the 1977 Session Laws (codified at SDCL 23-3-51 et seq.) creates a State Law Enforcement Officers Training Fund. All penalty assessments collected are to be paid into the state treasury and credited to said fund.
Based on the above facts you have asked the following specific questions:
QUESTIONS:
1. Shall the transmittal check be sent to the Office of State Treasurer or to the Office of Attorney General?
2. Shall the transmittal check be made payable to the State Treasurer or shall it be made payable to the Law Enforcement Officers Training Fund and then mailed to the State Treasurer?
3. Is the County required to establish a separate fund for the collection of these monies until transmitted or may they be held with other monies until transmitted?
4. When are these monies to be transmitted to the State Treasurer?
The statutes pertinent to your questions are SDCL 23-3-53 and 23-3-54 and provide:
23-3-53. After a determination by the court of the amount due, the clerk of courts shall collect the amount due and transmit such amount to the county treasurer. Such moneys shall then be transmitted to the state treasurer to be deposited in the law enforcement officers training fund.
23-3-54. All moneys collected under the provisions of § § 23-3-51 and 23-3-55, inclusive, shall be paid into the state treasury to be credited to the law enforcement officers training fund.
IN RE QUESTION NO. 1:
SDCL 23-3-53 provides for collections to be transmitted to the State Treasurer. SDCL 23-3-55 requires an annual appropriation by the Legislature of such monies from the special fund. In my opinion this clearly expresses legislative intent as requiring the State Treasurer to receive and maintain the funds in the Law Enforcement Officers Training Fund. This is also consistent with the provisions of SDCL 4-4 which establish the public fund structure of the state. The monies in the fund may ultimately be appropriated to the Attorney General's office for use in training law enforcement officers (SDCL 23-3-26 et seq.) at the training center and may also be appropriated to local law enforcement agencies for training purposes.
The mere fact that the funds may be appropriated to the Attorney General's office does not, in my opinion, have any legal effect on the procedural requirements set forth in SDCL 23-3-53 to 23-3-55, inclusive. The transmittal check should be sent to the Office of the State Treasurer in accordance with the procedure hereinafter outlined.
IN RE QUESTION NO. 2:
In my opinion SDCL 23-3-54 provides that penalty assessments collected are to be transmitted to the State Treasurer. The actual transfer and credit to the special fund is accomplished by the Office of State Treasurer. Therefore, the transmittal check should be made payable to the State Treasurer.
IN RE QUESTION NO. 3:
Within the general guidelines set forth by statute, the accounting procedures for counties are established by the State Auditor-General in the uniform accounting manual prepared by his office (SDCL 7-11-12). As SDCL 23-3-53 does not specifically prescribe the manner in which monies collected are to be handled by the county treasurer, it is my opinion that the Auditor-General has the authority to so prescribe. Upon discussing this matter with the Auditor-General, I am herein authorized to state that his office will direct, via the 1977 revision of the accounting manual, that counties establish a special fund for penalty assessment collections. This special “trust” fund should provide a convenient and practical means of accounting for collections which may be frequent and in small amounts. Likewise, transmittals to the State Treasurer from a specific fund should prove to be expedient.
The answer to your specific question is yes. A special fund should be established, pursuant to official action of the board of county commissioners, for penalty assessment monies.
IN RE QUESTION NO. 4:
Since SDCL 23-3-53 and 23-3-54 do not specifically answer your question, it is necessary to look to other statutes of possible applicability.
The remittance of fines, penalties and forfeitures, in general, is found at SDCL 16-2-30 and 16-2-36, inclusive. A portion of the monetary penalties resulting from violations of state law is remitted annually and pursuant to a pro rata cost formula determined by the Supreme Court (SDCL 16-2-36).
Similarly, a percentage of the penalties collected for violation of local ordinances is remitted on a quarterly basis (SDCL 16-2-34). In both instances, the monies are credited to the State General Fund.
On the other hand, penalties collected pursuant to SDCL 23-3-52 are to be remitted in their entirety and credited to a special fund which is subject to annual appropriation by the Legislature. Thus, it would not seem very practical to transmit these monies per either of the above methods.
SDCL 23-3-53 states that upon receipt of the county treasurer “such moneys shall then be transmitted to the state treasurer.” In the absence of a specific time frame it is my opinion that legislative intent could be interpreted as requiring transmittals within a reasonable time after receipt. Since the fund is subject to annual appropriation by the Legislature it is important that the Legislature have a current apprisal of the balance therein. SDCL 4-3-12 and 4-3-13 establish a procedure for monthly reporting and transmittal of certain fees, licenses and other monies collected at the county level for the state. Even though these provisions do not specifically mention penalty assessments, it would appear to me that such assessments collected pursuant to SDCL 23-3-53 et seq. could also be handled in this manner without imposing an additional burden on the county treasurer.
Therefore, until the Legislature establishes a definite time frame for transmittal it is my opinion that the collections should be transmitted on a monthly basis.
Respectfully submitted,
William J. Janklow
Attorney General
WJJ:LLV:jo
