October 27, 1977

The Honorable Lorna B. Herseth 
Secretary of State 
State Capitol 
Pierre, South Dakota 57501

Official Opinion No. 77-90

Pertaining to notary seals for state employees

Dear Mrs. Herseth:

In connection with administration of the laws pertaining to notaries public in South Dakota, you have requested answers to the following questions:

QUESTIONS: 

1.  Are various departments or agencies of State government authorized to pay the fees for notary seal and bond for their employees to secure a notary commission? 
    
2.  Is a State employee entitled to charge the State fees prescribed by SDCL 18-1-9 
     
a.  If he paid for his own commission?
     
b.  If the State paid for his commission?
    
3.  If either question (a) or (b) is “yes,” could the individual submit a claim to the State for payment of fees charged by the notary (SDCL 18-1-9) on State business?

IN RE QUESTION NO. 1:

I am not aware of any statute which specifically addresses your question.  However, pursuant to the authority granted by SDCL 4-9-1.1 the State Auditor has adopted the following administrative rule: 
    
3:05:06:04. When an agency determines the need for a notary public within his agency for performance of state business, a claim shall be presented for the notary bond, the commission and the filing fees.  The notary seal or notary stamp is personalized property and as such is not reimbursable.

The effect of this rule is to allow submission of a claim for both the notary bond and the filing fee established by SDCL 1-8-10(5), but not for the notary seal or notary stamp required of the person seeking the notary commission.  The rule bases the distinction on the fact that the latter is a personalized item.

Since the rule was properly adopted pursuant to the Administrative Procedures Act (SDCL 1-26), the presumption is in favor of the validity of the rule and the distinction drawn therein.  Therefore, it is my opinion that an agency may request payment for the notary bond of an employee seeking a notary commission, but may not submit a claim for the notary seal or stamp.

IN RE QUESTION NO. 2:

In my opinion, the answer to your second question is no, regardless of how the fees for the commission were paid.  Employees of the State are to receive a fixed compensation based on the nature of the work they perform.  If one of the functions of a particular employee is to serve in a notarial capacity for an agency, the value of that service for purposes of the employee's compensation should be negotiated between employee and employer.  I cannot interpret the provisions of SDCL 3-8 regarding employees' compensation as an expression of intent to allow compensation, or a part thereof, on a fee basis.

IN RE QUESTION NO. 3:

Based on the answer to question number two, I find it unnecessary to consider this question.

Respectfully submitted,

William J. Janklow
Attorney General

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