January 27, 1975
Miss Alice Kundert
State Auditor
Capitol Building
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 75-10
Concurrent salary and position of Lieutenant Governor
Dear Miss Kundert:
You have requested an official opinion from this office based on the following factual situation:
Governor Kneip has recently appointed Mr. Harvey Wollman as Secretary of Agriculture. Mr. Wollman was elected Lieutenant Governor in the November, 1974, election. He does not plan on leaving this elected position, but, instead, has indicated that he will attempt to perform the functions of both offices simultaneously. Mr. Wollman has indicated that he would accept the salary provided for the Secretary of Agriculture as his sole compensation for performing the functions of both offices. The salary set by statute for Lieutenant Governor is $4,500 per legislative session. SDCL 2-4-2. The Secretary of Agriculture's salary is set by the Governor. SDCL 4-7-10.1.
You have asked the following specific question:
Assuming Mr. Wollman performs the functions of both offices, whether his annual salary should be solely that provided by statute for Lieutenant Governor, solely that established by the Governor for the Secretary of Agriculture, or a combination thereof:
I have concluded that his annual salary must be limited to that set by statute for Lieutenant Governor, (i.e., $4,500, SDCL 2-4-2).
The South Dakota Constitution states that the Lieutenant Governor is an elected official. S.D. Const., Art. IV, §2. In addition to presiding over the senate, the Lieutenant Governor, "shall perform the duties and exercise the powers that may be delegated to him by the Governor." S.D. Const., Art. IV, §5.
Therefore, unless otherwise prohibited, the governor may delegate the duties of the secretary of agriculture to the lieutenant governor. However, the lieutenant governor would under no circumstances be entitled to the salary of the secretary of agriculture. The lieutenant governor would be prohibited from drawing both his salary and the secretary of agriculture's salary by SDCL 3-8-4. Since Mr. Wollman would be in charge of the agriculture department solely by virtue of being the lieutenant governor, then that is the only salary to which he is entitled. Giving up the lieutenant governor's salary would only result in the lieutenant governor receiving no salary at all. The lieutenant governor would be limited to the salary provided by SDCL 2-4-2 under any delegation of powers-whether he be made secretary of agriculture, public safety, health, game, fish and parks, or any other department.
It is also arguable that the lieutenant governor could be appointed secretary of agriculture pursuant to section 9 of article IV of the South Dakota Constitution and SDCL 1-32-3. If the lieutenant governor becomes the secretary of agriculture under these provisions, SDCL 38-1-15 contains the following prohibition:
The secretary of agriculture and all executive assistants and directors shall devote their entire time to the duties of the office and shall hold no other office or position of profit under the state government, but any of them may hold and administer any other office to which they may be appointed by the Governor, or head of their department with the consent of the Governor, but without additional compensation.
Therefore, it is clear that the secretary of agriculture cannot also be the lieutenant governor.
SDCL 38-1-15 was not repealed or otherwise affected by executive order 73-1 (chapter 2 of the 1973 Session Laws) which reorganized the executive branch of state government. The old existing departments were not automatically destroyed by this executive order 73-1. Instead, a system of transfers was established which created four methods of implementing the change.
The department of agriculture existing at the time of the transfer underwent a type two change, meaning that "all its functions, records, personnel, property, unexpended balances of appropriations, allocations or other funds" were assigned to the new department. Chapter 2, §§ 3(b) and 131, 1973 Session Laws. Section 131 reads:
The Department of Agriculture created by Chapter 115, S.L. 1925 as amended, being SDCL 38-1-1 et seq., is transferred by a type two transfer to the department of agriculture. The transfer shall not include the inspection functions transferred by Section 54 to the department of commerce and consumer affairs.
It must be emphasized that Section 131 transferred SDCL "38-1-1 et seq." Black's Law Dictionary defines the phrase "p. 1, et seq." as requiring "page first and the following pages." In the context of executive order 73-1 this would mean section 38-1-1 and the following sections. It is therefore clear from section 131 of chapter 2 of the 1973 Session Laws that the Governor intended to leave all of the sections of chapter 38-1 intact, including 38-1-15.
Since the secretary of agriculture is prohibited by SDCL 38-1-15 from being the lieutenant governor, Harvey Wollman cannot be appointed secretary of agriculture under section 9 of article IV of the South Dakota Constitution and SDCL 1-32-3 unless he resigns as lieutenant governor.
Respectfully submitted,
WILLIAM J. JANKLOW
ATTORNEY GENERAL
WJJ: GV: MAG/dh
