November 2, 1979

The Honorable Vernon L. Larson 
State Auditor 
State Capitol 
Pierre, South Dakota 57501

Official Opinion No. 79-40

Authority of Board of Environmental Protection to authorize per diems not previously approved by the Legislature

Dear Mr. Larson:

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

FACTS: 

On May 17, 1979, the Board of Environmental Protection adopted a resolution to pay its members per diem while on any type of business authorized by the Board.  This resolution included the authorization of per diem for Board members serving on other boards or advisory groups that are not authorized to pay per diem.  The Legislature, at Chapter 371 of the Session Laws of 1978 (as amended by section 32 of House Bill 1339, 1979 Legislature), acting pursuant to the provisions of SDCL 4-7-10.4, has identified those agencies entitled to per diem.

Based on the above facts, you ask the following question:

QUESTION: 

Does the State Board of Environmental Protection have the authority to direct that per diem be paid to its members for service on other boards or commissions when other members of such boards or commissions are not authorized to receive per diem?

The answer is no.

SDCL 4-7-10.4 reads in part as follows: 

. . . The appropriations committee of the Legislature shall review the recommendations and there shall be included in a separate section of the general appropriations act, the salary or per diem compensation and allowable expense reimbursement for each such body, which shall constitute the salaries or per diem compensation and allowable expense reimbursement increases for members of such bodies for the next two succeeding fiscal years.  (Emphasis supplied.)

It is my opinion the Legislature set out in SDCL 4-7-10.4 those state boards, councils, commissions, and advisory bodies whose members may be compensated with state funds.  If the entity is not mentioned in §  10.4 it would be improper to compensate a member of that commission, council, board or advisory body with state funding, absent other legislative authorization for such compensation.

Respectfully submitted,

Mark V. Meierhenry
Attorney General

MVM:RHW:esp