STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

January 2, 1973

Don Barnhart
State Superintendent of Public Instruction
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 73-01

State Department may not contribute funds to another department without legislative consent

Dear Mr. Barnhart:

You have asked for an official opinion on the following factual situation:

The South Dakota Professional Practices Commission, a body created to insure professional competence in the teaching profession, would like to employ a full-time executive secretary and pay one half of the salary from funds made available to the South Dakota Professional Practices Commission and one half of the salary from funds made available to the Department of Public Instruction.

In connection with this factual situation, you have asked the following question:

Would the Department of Public Instruction be authorized to pay one half of the salary of a full-time executive secretary for the South Dakota Professional Practices Commission?

SDCL 13-43-23 reads as follows:

All expenses incurred by the professional practices commission in administering the provisions of §§13·43·16 and 13-43-30, inclusive, shall be paid from the state institute fund created by §§13-43-5 and 13-44-5, provided however, that such annual expenses shall be limited to an amount not to exceed two-thirds of the annual amount collected for teacher certification fees. (Emphasis added)

SDCL 13-42-5 provides that the state institute fund shall be established from fees collected from applicants for teachers' certificates.

SDCL 13-44-5 provides that moneys in the fund shall not revert and shall be used:

(O)nly for the purpose of employment of qualified lecturers and instructors at teacher institutes held by the county superintendent of schools with the approval of the superintendent of public instruction as provided by law, and for the purpose of employment of competent persons for writing and publishing bulletins and courses of study materials essential to the public school system of this state . . . . (Emphasis added)

Although SDCL 13-44-5 seems restrictive, it must be interpreted in pari materia with 13-43-23. In reading these two statutes together, it is my opinion that the Commission may hire an executive secretary to administer the provisions of the Professional Practices law as well as to lecture and instruct at teachers' institutes, and to write and publish bulletins and courses of study materials.

I am aware of SDCL 13-43-25.1 which reads as follows:

The state board of education, attorney general, and the state superintendent of public instruction shall co-operate with and assist the commission when requested to do so by the commission.

I cannot construe this statute to include financial assistance. The Professional Practices Commission is an agency of the state government. As such, it can spend no money except that which is appropriated to it by the State Legislature. See SDCL 4-8-3. This prohibits the Professional Practices Commission from expending Department of Public Instruction funds. Nor can the Department of Public Instruction expend its appropriation for purposes not authoriezd by the Legislature. See SDCL 4-8-2. I am unable to find any general or specific law authorizing the D.P.I. to expend money to hire personnel for the Professional Practices Commission. Nor would SDCL Ch. 1-24, "Joint exercise of Governmental Powers," apply. This chapter authorizes state agencies to perform jointly anything which they have the power to do separately. As the Department of Public Instruction cannot administer the Professional Practices Law by itself, it cannot assume the authority to administer it jointly.

A close examination of SDCL 13-43-23 confirms this opinion. This section states "all expenses ... in administering the (law) shall be paid from the state institute fund ... "

Respectfully submitted,

Kermit A. Sande
Attorney General