October 31, 1977

Mr. Harld J. Sliper, Executive Secretary 
South Dakota State Board of Engineering
  and Architectural Examiners 
2040 West Main 
Rapid City, South Dakota 57701

Official Opinion No. 77-89

Whether SDCL 36-18-37.2 applies to person who files and accepts plats, plans and specifications

Dear Mr. Sliper:

You have requested an opinion from this office based upon the following factual situation:

FACTS: 

The State Board of Engineering and Architectural Examiners has questions in regard to the interpretation of the term “public officer” in SDCL 36-18- 37.2.  The issue has arisen as to whether an employee of a city or county who is charged with the responsibility of issuing building permits or filing plans, specifications and plats to approve them for building, is a “public officer” under that statute.
    
It is the position of the board in this matter that SDCL 36-18-37.2 requires any individual who has the responsibility of issuing a building permit or filing plans, regardless of his classification, to meet the requirements of SDCL 36-18-37.2.

Based upon the above facts, you ask the following questions:

QUESTIONS: 

1.  Is an employee of a city or county who is charged with the responsibility of issuing building permits or filing plans, specifications and plats, to approve them for building, a “public officer” within the purview of SDCL 36-18-37.2?
    
2.  Is a “public official” subject to civil or criminal penalties if he violates the provisions of § 36-18-37.2?

IN RE QUESTION NO. 1:

SDCL 36-18-37.2 provides: 
    
No public officer charged with the responsibility of accepting plans, specifications, and plats shall accept or approve such plans, specifications and plats, which have been prepared in violation of this chapter.

South Dakota case law has long recognized the distinction between an “officer” and an “employee.”  In the case of Griggs v. Harding County, 68 S.D. 429, 3 N.W.2d 485 (1942), the South Dakota Supreme Court said in part: 
    
A public office as distinguished from mere employment involves a delegation to the person filling the office of some part of the functions of government to be exercised by him for the benefit of the public.  The distinction is clearly stated in 52 ALR 595:  “It may be stated, as a general rule deductible from the cases discussing the question, that a position is a public office when it is created by law, with duties cast on the incumbent which involve an exercise of some portion of the severeign power and in the performance of which the public is concerned, and which also are continuing in their nature and not occasional or intermittent; while a public employment, on the other hand, is a position which lacks one or more of the foregoing elements.”

On the basis of the facts presented, wherein you describe the individual involved as being a person who is charged with the responsibility of issuing building permits or filing plans, specifications and plats and to approve them for building, it appears to me that a position of public office exists rather than a position of public employment.  Any final determination, however, of whether or not any particular individual is a public employee or public officer is by definition a factual determination, which I am sure you understand, is something this office cannot readily determine by opinion.

Although the above discussion with respect to public officials versus public employees does have relevance with respect to this issue, it appears to me that the distinction between a public officer and a public employee in regard to the provisions of SDCL 36-18-37.2 is not as significant as it may be in other contexts. The language of SDCL 36-18-37.2 indicates to me that the Legislature intended that no plats, plans or specifications shall be accepted or approved by someone holding a public position, unless such plans, specifications and plats shall have been prepared in accordance with Chapter 36-18.  To me, it is the nature of the act performed which is determinative, not whether or not the person doing it happens to be a public officer as opposed to a public employee.  What would be the reasonable grounds for saying that if a public officer did the act, he was required to comply with SDCL 36-18-37.2, but if a public employee did exactly the same act, he would not be required to comply with that statutory provision?  There is absolutely no reasonable basis for making such a distinction in the reading of the impact of SDCL 36-18-37.2.

Accordingly, the answer to your first question is that the duties of the individual involved appear to fit within the purview of SDCL 36-18-37.2, and further, the individual, on the basis of the information available to me, does appear to be a public official as opposed to a public employee.

IN RE QUESTION NO. 2:

With respect to your second question, I would refer you to SDCL 22-6-2, wherein the Legislature has provided that when the performance of an act is prohibited by a statute, and no penalty for the violation of such statute is otherwise imposed by law, the doing of such act is a Class 2 misdemeanor.  The provisions of SDCL 36-18-37.2 prohibit the performance of certain acts without providing for a penalty therefor.  Consequently, it appears to me that the provisions of SDCL 22-6-2 are applicable.

In addition, I would refer you to the provisions of SDCL 36-18-39, wherein the Legislature has also provided that the board may proceed by injunction to restrain violations of the provisions of the chapter.  That statute further provides that the commencement of an injunction proceeding or a criminal proceeding constitutes an election of remedies and does not then make the other remedy available.

Respectfully submitted,

William J. Janklow
Attorney General

WJJ:DOC:jo