November 29, 1984

Dr. Gordon Foster
Executive Director 
South Dakota Board of Regents 
Kneip Building 
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 84-47

University/museum joint powers agreement

Dear Dr. Foster:

On behalf of the South Dakota Board of Regents you have requested my official opinion on the following matters:

FACTS: 

The Museum of Natural History, now known as W. H. Over State Museum, was originally initiated and organized as part of the activities and service at the University of South Dakota.  The Museum was both located in the old Carnegie Library building on the Vermillion campus and operated under the auspices of the University for many years.  In 1973, the direct supervision and control of the W. H. Over Museum was transferred to the Board of Cultural Preservation.  The Board of Regents and the Board of Cultural Preservation now propose to enter into a joint powers agreement pursuant to SDCL 1-24 whereby the Board of Cultural Preservation shall have the use of approximately three (3) acres on the campus of the University of South Dakota for a period of ninety-nine (99) years for the construction and operation of a new facility for the W. H. Over State Museum.

Based upon the foregoing facts you have asked the following questions:

QUESTIONS: 

1.  May the Board of Regents and the Board of Cultural Preservation enter into a ninety-nine (99) year land use agreement for the aforesaid purposes? 

2.  May the Board of Regents continue to provide utility and maintenance services to the new facility on a cost reimbursable basis from the Board of Cultural Preservation?

IN RE QUESTION NO. 1:

SDCL 1-24-3 provides: 

1-24-3.  Any two or more public agencies may enter into agreements with one another for joint or cooperative action pursuant to the provisions of § §  1-24-2 to 1-24-9, inclusive.  Appropriate action by ordinance, resolution or otherwise pursuant to law of the governing bodies of the participating public agencies shall be necessary before any such agreement may enter into force.

Since the Board of Regents have general corporate powers to 'manage' the property belonging to the educational institutions under its control, SDCL 13-49-11 and -13, and the Board of Cultural Preservation has the authority to perform all 'functions' of the Museum at the University of South Dakota, SDCL 1-45-23(1) and SDCL 13-57-6.1, it is my opinion that if the Board of Regents determines that existence of the Museum on University property constitutes an educational use of the property complimentary to the educational program at the University, there is no impediment to enter into the joint powers agreement contemplated.

The five-year restriction on leases entered into by the Board of Regents imposed by SDCL 5-2-2.4 does not alter this opinion, since the joint powers agreement described is not a lease but is rather an agreement between public agencies for use of property held by one for purposes authorized by law.  This opinion is reinforced by the observation that all statutory references to the Museum indicate that it is located at the University of South Dakota, accordingly, it must have been within the contemplation of the Legislature that the Board of Regents cooperate with the Board of Cultural Preservation to provide space on the campus of the University for the Museum.

Finally, if the Board of Regents itself were constructing this building, legislative authorization would be required due to the provisions of SDCL 13-51-1; however, under the facts as you present them the Board of Cultural Preservation will construct the facility.  Since SDCL ch. 1-24 requires provision in a joint powers agreement for ultimate disposition of property used in the agreement, the Board of Regents and the Board of Cultural Preservation must address this matter in the joint powers agreement.  If title to the facility will ultimately reside in the Board of Regents legislative approval of the acquisition must be obtained prior to the termination of the agreement.  My answer to Question No. 1 is YES.

IN RE QUESTION NO. 2

Question No. 2 implies that the Board of Regents has in the past provided utility and maintenance services to the Museum on a cost reimbursable basis. In view of the fact that SDCL 13-51-1 appears to preclude maintenance of the building at a cost to the Board of Regents, it would be my opinion that this arrangement must continue.  I refer you to SDCL 13-59-12, et seq., wherein is contained legislative authorization for an exchange of maintenance for use of the Museum facility at Dakota State College as a model for the Boards to consider when addressing the aspects of the joint powers agreement relating to maintenance of the facility.  Since the underlying rationale allowing the Board of Regents to provide land for erection of the facility touches upon the educational use of the facility by the University, the joint powers agreement should make clear provision for such educational use of the Museum facility by the University students, faculty, and staff.  My answer to Question No. 2 is YES.

Respectfully submitted,

Mark V. Meierhenry
Attorney General