March 6, 1975
Gordon Lovell
Representative
Capitol Building
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 75-45
Validity of Statehouse Cafe
Dear Representative Lovell:
You have asked whether the arrangement between the state and the operators of the cafe located in the basement of the state capitol is valid.
Apparently, there has been a food concession in the capitol for many years. A few years ago, the basement was remodeled, and the cafe was moved from the rotunda to its present location.
In 1967, the Board of Finance entered into a five year lease with the late Robert L. Page. He was also granted an option to renew for an additonal five years. On May 31, 1972, Robert L. Page assigned his lease to Joyce and Rollin Page. The assignment was approved by the Board of Finance. However, there is no indication that the lease was ever renewed. There is no lease, and the minutes of the Board of Finance are silent as to any renewal. The only evidence of any lease is a document entitled "amendment to lease" which sets the rent at 3%. It is signed by-the Pages and Governor Kneip on behalf of the Board of Finance.
The Board of Finance had no authority to lease space in the capitol for food concessions prior to July 1, 1974. SDCL 1-14-12 (7) now provides:
The bureau of administration shall be administered by the commissioner of administration and it shall be his duty, and he is hereby vested with power:
. . .
(7) To contract for, with the approval of the board of finance, a lease or leases not to exceed three years to provide food services, candy, beverage, and tobacco concessions in the capitol building, capitol annex, state office building number two, soldiers and sailors memorial building, insurance building, department of transportation building, department of public safety building, and the law enforcement training center and to supervise the fulfillment of the provisions of any such lease or leases. The issuance of such contracts shall conform, as nearly as possible, with the requirements of chapters 5-18, 5-19 and 5-20.
It is clear that the Board of Finance now has the authority to enter into concessions for leases. However, no agreement or lease has been executed pursuant to this authority.
SDCL 1-14-12 (7) requires the Bureau of Administration to enter into agreements with the approval of the Board of Finance and in compliance with SDCL 5-18, 5-19 and 5-20, as nearly as possible. SDCL 5-18-18 exempts the Bureau of Administration from the bid requirements of SDCL 5-18. However, SDCL 1-14-12 (17) has the effect of bringing the Bureau of Administration back under the bid provisions of SDCL 5-18 when letting the cafe concession.
The lease cannot be for a period in excess of three years. No option for renewal may be granted.
I recognize that it is difficult to obtain quality food service because of the imposition of the short term on the lease. However, the statutory restrictions do exist. It is not my job to comment on the wisdom of legislation or to remake the law.
Therefore, it is my opinion that the Bureau of Administration has the authority to lease space in the capitol complex to provide concessions. Such lease must be let pursuant to chapters 5-18, 5-19 and 5-20.
Respectfully submitted,
WILLIAM J. JANKLOW
ATTORNEY GENERAL
WJJ:MAG:dh
