February 25, 1975
Mr. James A. Van Loan
State Economic Opportunity Office
State Capitol Building
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 75-36
Reimbursement of moving expenses
Dear Mr. Van Loan:
You have requested an official opinion as to the operation of SDCL 3-9-12 relating to reimbursement of your employees for professional moving expense. Your request involves a determination of whether or not the Board of Finance rules 5:01:02:35 to 38 are effective to implement the provisions of SDCL 3-9-12.
SDCL 3-9-12 provides:
For the purpose of assisting in the recruitment of professional staff, it is declared to be the policy of the state of South Dakota that such persons may be reimbursed for moving expenses to the assigned headquarter duty station in South Dakota from such individual's residence, but in no event shall such reimbursement be in excess of one month's salary.
Rules 5:01:02:35 to 38 of the State Board of Finance cite SDCL 3-9-11 as general authority and SDCL 3-9-9 and 3-9-12 as the laws being implemented. However, in SDCL 3-9-11, the Board of Finance is specifically limited to pass rules relating to SDCL 3-9-9, and 3-9-10, which deal with household moving allowances for state employees. It is my opinion that SDCL 3-9-11 is authority only for a limited scope in which the Board of Finance can pass rules and that SDCL 3-9-12 is not included within that scope. Taking the above rules on their face, they are not in my view a legal exercise of the authority of the Board of Finance to pass rules. This I realize is an important decision, but the result is in my view mandated by the statutes and rules involved. SDCL 3-9-11 does not give the Board of Finance authority to pass rules relating to SDCL 3-9-12.
This being the result, SDCL 3-9-12 stands alone as the specific authorization for allowance of professional staff moving allowances. The question thus arises, how is this statute administered?
SDCL 3-9-12 provides that professional staff recruitments may be reimbursed for their moving expenses. This reimbursement would of course come from the agency's funds who had hired such person. Consequently, the agency who hires a professional would first have to approve all reimbursements under SDCL 3-9-12 before they could be legitimately paid.
In addition to the approval of the agency involved, SDCL 3-9-8 sets forth requirements which the Auditor may demand of all claims for money.
SDCL 3-9-8 provides:
No warrant shall be issued by the state auditor for the payment of any expense or expenses paid out by any department officer or employee of the state, until such department officer or employee shall have presented to the state auditor an itemized statement and account of such expenses duly verified under oath as to the authenticity of such expenses. Such claims shall be filed in the office of the state auditor, together with receipt or receipts from the person or persons to whom such payments shall have been made; provided, however, that receipts shall be required only upon rule or regulation of the state board of finance. No such receipt shall be required, of the governor for any amount of expenditure, and no receipt or itemized statement shall be required in any case where a fixed sum per month is or has been granted by law to any officer or officers for expenses. (Emphasis added.)
Pursuant to SDCL 3-9-8 and 4-9-3 the State Auditor may require an itemized statement and account of moving expenses and require that such statement be verified under oath as to authenticity of these expenses. The case of Sawyer v. Mayhew, 10 S.D. 18,71 N.W. 141 (1897), is also applicable here in that it authorized the State Auditor to require receipts or other evidence of expense before paying claimed expenses, even if other state officers have certified the claim as just and correct. In the factual situation this would mean that before paying claims of your employees, the State Auditor may require itemized statements, that such statements be verified (see SDCL 4-9-4) and that there may be receipts for such claimed expenses. If these are present and available, the claim of your employees under SDCL 3-9-12 should be paid if approved by you.
Respectfully submitted,
WILLIAM J. JANKLOW
ATTORNEY GENERAL
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