May 27, 1977
Mr. Robert T. Mullally
Commissioner of the Bureau
of Personnel
State Capitol
Pierre, South Dakota 57501
Official Opinion No. 77-42
Application of SDCL 3-6A to Board of Regents and Board of Charities and Corrections
Dear Mr. Mullally:
You have requested an official opinion from this office based on the following factual situation:
FACTS:
The 1973 Session of the South Dakota Legislature passed the Career Service Act, and on July 1, 1973, it took effect as Chapter 3-6A, SDCL. In SDCL 3-6A-12 the Board of Regents and the Board of Charities and Corrections are specifically named as being subject to the provisions of the Chapter.
However, since the effective date of this act, many have claimed that due to the constitutional status of the respective boards, they are not subject to the provisions of Chapter 3-6A.
Based on the above facts, you ask:
QUESTION:
Are the Board of Regents and the Board of Charities and Corrections subject to the provisions of Chapter 3-6A as stipulated in SDCL 3-6A-12?
The question you raise is a very interesting one and one which has several different facets of analysis. This is particularly true at this point in time since we are now in a position where there is not much applicable case law to guide our analysis. By this, I am referring to the effect of article IV, section 8 of our state constitution, the provisions of SDCL 3-6A (Chapter 23 of the Session Laws of 1973), and Executive Order 73-1, Sections 28 and 250 on previous cases in this area.
In my opinion, previous cases in this area such as Worzella v. Board of Regents, 77 S.D. 477, 93 N.W.2d 411 (1958), and Board of Regents v. Carter, 228 N.W.2d 621 (1975) are not controlling legal precedent in regard to the question you asked. Although Carter was decided in 1975, the source of the controversy in that case occurred prior to the executive reorganization of 1973 and the legislative implementation in 1973 of article IV, section 8 of the South Dakota Constitution. We must then look to what this new constitutional language provides in regard to your question.
Article IV, section 8 of the South Dakota Constitution provides:
All executive and administrative offices, boards, agencies, commissions and instrumentalities of the state government and their respective functions, powers and duties, except for the office of Governor, lieutenant governor, attorney general, secretary of state, auditor, treasurer, and commissioner of school and public lands, shall be allocated by law among and within not more than twenty-five principal departments, organized as far as practicable according to major purposes, by no later than July 1, 1974. Subsequently, all new powers or functions shall be assigned to administrative offices, agencies and instrumentalities in such manner as will tend to provide an orderly arrangement in the administrative organization of state government. Temporary commissions may be established by law and need not be allocated within a principal department.
Except as to elected constitutional officers, the Governor may make such changes in the organization of offices, boards, commissions, agencies and instrumentalities, and in allocation of their functions, powers and duties, as he considers necessary for efficient administration. If such changes affect existing law, they shall be set forth in executive orders, which shall be submitted to the Legislature within five legislative days after it convenes, and shall become effective, and shall have the force of law, within ninety days after submission, unless disapproved by a resolution of either house. (Emphasis added.)
The first paragraph of article IV, section 8 clearly authorizes a reorganization of the entire executive branch of state government, with certain exceptions specified which do not include either the Board of Regents or the Board of Charities and Corrections. It is also elementary that both the Board of Regents and the Board of Charities and Corrections are part of the executive branch of state government and are consequently subject to the provisions of article IV, section 8 (see SDCL 3-6A-12). Therefore, neither the Board of Regents nor the Board of Charities and Corrections is in an “exempt” position from these new constitutional provisions and cannot, in my opinion, now argue that cases decided prior to the implementation of article IV, section 8, are controlling precedent for saying that they are now not subject to these new constitutional provisions.
Article IV, section 8, paragraph 1 granted authority for functions, duties and powers of boards of the executive branch of state government to be “allocated by law among and within not more than twenty-five principal departments . . . by no later than July 1, 1974.” SDCL 3-6A was passed by the 1973 Legislature with an effective date of July 2, 1973. In my opinion, this law, together with article IV, section 8 of the constitution, has the effect of transferring certain personnel management functions of the Board of Regents and the Board of Charities and Corrections to the Bureau of Personnel. SDCL 3-6A-12 is but one statute in the chapter which clearly indicates that intent.
In addition, section 28 of Chapter 2 of the 1973 Session Laws, Executive Order 73-1, provides that the system of career service personnel management shall apply to all employees of the executive branch of state government, with certain exceptions. In the case of the Board of Regents, these exceptions are that the members of the Board are not subject to the act (Subdivision B), and that certain policy-making officials and teachers are also exempt (Subdivision F). Subdivision G of section 18 of Executive Order 73-1, as well as subdivisions 6 and 8 of SDCL 3-6A-13 indicate further exceptions here with regard to the Board of Charities and Corrections.
It is my opinion that both Executive Order 73-1, which became the law of the State of South Dakota, and Chapter 23 of the 1973 Session Laws, which also became law, in effect, provided for the transfer by law of certain personnel functions from the Board of Regents and the Board of Charities and Corrections to the Bureau of Personnel. This transfer, in my opinion, was authorized by article IV, section 8 of our constitution and is not in conflict with the constitutional language of article XIV, section 2 regarding the Board of Charities and Corrections or article XIV, section 3, regarding the Board of Regents.
The language of article IV, section 8, as approved, in my opinion is such clear and unambiguous language that it must be applied as it reads, Levasseur v. Wheeldon, 79 S.D. 442, 112 N.W.2d 894 (1962), and must be interpreted according to the ordinary and usual meaning of the words employed, Brandy v. Mickelson, 73 S.D. 485, 44 N.W.2d 341, 22 A.L.R.2d 1129 (1950). It is also recognized in South Dakota that even though a constitutional amendment does not expressly repeal another constitutional provision, if it rewrites and covers the same subject, it will supersede the former provisions and be deemed a substitute therefor. Kneip v. Herseth, 214 N.W.2d 93, 100 (1974).
By citing the Kneip v. Herseth case, I do not intend to imply that I believe article IV, section 8 actually repealed article XIV, section 2 or section 3. I only wish to point out in this regard that the language of article XIV, section 2 and section 3, as interpreted by the South Dakota Supreme Court in cases such as Worzella and Carter, does not appear to be controlling in regard to the question you raise. The language of article XIV, section 2 and section 3 also obviously recognizes that the “control” of the Regents and the Board of Charities and Corrections is subject to legislative restriction and regulation. This is inconsistent with article IV, section 8 in that the Legislature there also must approve any such reorganization affecting law before it would go into effect.
The answer to your question, therefore, is yes. Both the Board of Regents and the Board of Charities and Corrections are subject to the provisions of SDCL 3-6A, including SDCL 3-6A-12.
Respectfully submitted,
William J. Janklow
Attorney General
WJJ:DOC:mhb
