October 31, 1977
The Honorable Lorna B. Herseth
Secretary of State
State Capitol
Pierre, South Dakota 57501
Official Opinion No. 77-91
Power and duties of State Ethics Commission
Dear Mrs. Herseth:
You have requested an official opinion from this office on the following questions.
QUESTIONS:
1. Which of the following types of elections are within the jurisdiction of the State Ethics Commission and which are not:
a. United States Senate
b. United States Representative
c. Governor and Lieutenant Governor
d. Constitutional officers
e. County (auditor, sheriff, etc.)
f. Township
g. School district
h. Municipalities
i. State Initiative and Referendum
j. County Initiative and Referendum
k. Municipal Initiative and Referendum
l. Conservancy sub-districts
m. Judicial
n. Power districts
o. Political parties (committeeman or committeewoman)
p. Legislative
q. Elections held by the ASCS (such as the Beef
Check-Off Referendum)
2. Which types of candidates or committees are required to use the disclaimer required in SDCL 12-25-4.1 and § 4:03:02:01:
a. Candidate for United States Senate, committee supporting candidate for United States Senate;
b. Candidate for United States House of Representatives, committee supporting candidate for United States House of Representatives;
c. Candidates for Governor and Lieutenant Governor, committee supporting candidate for Governor and Lieutenant Governor;
d. Candidate for constitutional office, committee supporting candidate for constitutional office;
e. Candidate for county office, committee supporting candidate for county office;
f. Candidate for township election, committee supporting candidate for township election;
g. Candidate for school district election, committee supporting candidate for school district election;
h. Candidate for municipal election, committee supporting candidate for municipal election;
i. Committee supporting or opposing a State Initiative or Referendum;
j. Committee supporting or opposing a County Initiative or Referendum;
k. Committee supporting or opposing a Municipal Initiative or Referendum;
l. Candidate for conservancy sub-district, committee supporting a candidate for conservancy sub-district;
m. Candidate for judicial office, committee supporting candidate for judicial office;
n. Candidate for power district office, committee supporting candidate for power district office;
o. Candidate for political party office, committee supporting candidate for political party office;
p. Candidate for legislative office, committee supporting candidate for legislative office;
q. Committee supporting or opposing elections held by the Federal Government such as the ASCS Beef Check-Off Referendum;
r. State association sponsoring an issue such as Wool Growers?
3. Do SDCL 12-25 and 12-25A apply to all the types of elections listed in question one?
4. Where are the candidates and committees listed in question two required to file their registration form and statement of organization and statement of receipts and expenditures?
IN RE QUESTION NO. 1:
SDCL 12-1-1 says that the provisions of this title shall apply to all elections for state, district and county officers and other officers except in cases where, from the context of any statute, a different intention plainly appears. SDCL 12-1-2 goes on to specifically include township, municipal and school district elections except when the election statutes in Titles 8, 9 and 13 specifically provide otherwise. Chapter 12-25A which creates the Ethics Commission is within Title 12 and there are no limiting sections in Chapter 12-25A as to the “jurisdiction” of the Ethics Commission. The Ethics Commission is given the responsibility of promulgating a South Dakota Fair Campaign Practices Code, SDCL 12-25-9, and § § 12-25A-18 and 19 authorize the Commission to investigate violations of the South Dakota Fair Campaign Practices Code. Also, the Commission must promulgate forms for reporting receipts and expenditures by candidates and committees, § § 12-25-14 and 18, and further, it must audit certain statements filed pursuant to § 12-25-13.
Therefore, all of the elections you have listed in question one, except “q,” could involve a violation of the South Dakota Fair Campaign Practices Code and said violation would be within the “jurisdiction” of the State Ethics Commission.
The reason for excluding an election held by the Agricultural Stabilization and Conservation Service (ASCS) is that such an election does not fit the criteria set forth in SDCL 12-1-1.
IN RE QUESTION NO. 2:
The disclaimer found at § 12-25-4.1 would apply to the following candidates and committees; however, note that some candidates that you have listed are not included because of § 12-25-6.1 which exempts certain candidates from the provisions of Chapter 12-25:
a. Candidate for United States Senate, committee supporting candidate for United States Senate;
b. Candidate for United States House of Representatives, committee supporting candidate for United States House of Representatives;
c. Candidates for Governor and Lieutenant Governor, committee supporting candidate for Governor and Lieutenant Governor;
d. Candidate for constitutional office, committee supporting candidate for constitutional office;
e. Committee supporting candidate for county office;
f. Committee supporting candidate for township election;
g. Committee supporting candidate for school district election;
h. Committee supporting candidate for municipal election;
i. Committee supporting or opposing a State Initiative or Referendum;
j. Committee supporting or opposing a County Initiative or Referendum;
k. Committee supporting or opposing a Municipal Initiative or Referendum;
l. Committee supporting a candidate for conservancy subdistrict;
m. Committee supporting candidate for judicial office;
n. Committee supporting candidate for power district office;
o. Candidate for political party office, committee supporting candidate for political party office;
p. Candidate for legislative office, committee supporting candidate for legislative office.
The disclaimer found at ARSD 5:03:02:01 is merely an interpretative rule and as such applies to the same candidates and committees as listed above.
IN RE QUESTION NO. 3:
SDCL 12-25 applies to all elections. However, § 12-25-6.1 exempts some candidates from certain provisions of Chapter 12-25. SDCL 12-25-6.1 reads as follows:
The provisions of this chapter shall not apply to any candidate for judicial, municipal, school district or other governmental subdivision offices. (Emphasis added.)
Therefore, while all elections are covered by Chapter 12-25, candidates for judicial, municipal, school district and other governmental subdivision offices are not covered; however, their committees are. Also § 12-25-13 requires county candidates and candidates for district office or their committees to file statements of receipts and expenditures with the county auditor. Further, the provisions of § § 12-25-28, -29 and -30 require certain of the above- mentioned exempt candidates to file statements of financial interest.
As far as Chapter 12-25A applying to elections, I refer you back to my answer to question number one.
IN RE QUESTION NO. 4:
ARSD 5:03:03:01 reads as follows:
Within fifteen days after receiving contributions or making expenditures in the amount of one hundred dollars or more, all political committees and any person who is a candidate or a member of a political committee, that are required to file State campaign financing statements pursuant to SDCL 12-25-13, are required to file the registration form and statement of organization with the State Ethics Commission.
Although it is not clear from the above rule, it appears that the intent of the rule is to require any committee who received or spends one hundred dollars or more in any state or legislative race to file the registration form and statement of organization. I find it hard to believe that it was intended to require a committee supporting a county or district candidate to file with the State Ethics Commission when their § 12-25-13 reports need only be filed at the county level. People are confused enough about when, where and what they have to do and file. Therefore, the following would have to file the registration form and statement of organization:
a. Committee supporting candidate for United States Senate;
b. Committee supporting candidate for United States House of Representatives;
c. Committee supporting candidate for Governor and Lieutenant Governor;
d. Committee supporting candidate for constitutional office;
i. Committee supporting or opposing a State Initiative or Referendum;
m. Committee supporting candidate for judicial office;
p. Committee supporting candidate for legislative office.
The following candidates and committees file their statements of receipts and expenditures with the Secretary of State pursuant to § 12-25-13:
a. Candidate for United States Senate, committee supporting candidate for United States Senate;
b. Candidate for United States House of Representatives, committee supporting candidate for United States House of Representatives;
c. Candidate for Governor and Lieutenant Governor, committee supporting candidate for Governor and Lieutenant Governor;
d. Candidate for constitutional office, committee supporting candidate for constitutional office;
i. Committee supporting or opposing a State Initiative or Referendum;
m. Committee supporting candidate for judicial office;
p. Candidate for legislative office, committee supporting candidate for legislative office.
These candidates and committees file with the county auditor pursuant to § 12-25-13:
e. Candidate for county office, committee supporting candidate for county office;
g. Committee supporting candidate for school district election;
j. Committee supporting or opposing a County Initiative or Referendum only if the vote on the Initiative or Referendum is held on the primary or general election day;
l. Committee supporting a candidate for conservancy subdistrict;
n. Committee supporting candidate for power district office.
Respectfully submitted,
William J. Janklow
Attorney General
WJJ:RVJ:pk
