STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL
July 1, 1975
Mr. David Vigen
Executive Director
Board of Charities and Corrections
217 East Dakota
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 75-123
The use of the prison industries revolving fund for salaries of prison industries employees.
Dear Mr. Vigen:
You have requested an official opinion based on the following facts:
Historically, prison industries funds have been used to pay salaries of superintendents of the various prison industries plants although at the present time there are only two, while the balance of those persons are being paid from general fund money. It is our plan to move all persons whose activities are connected solely with prison industries to that payroll, thereby affecting procedures whereby true costs can be allocated to the various operations.
The question you pose is:
Can prison industries funds be used for payment of salaries for those persons who are employed to work solely in the prison industries operations?
After reviewing the pertinent statutes, and the operation of the prison industries revolving fund, it is my opinion that the prison industries revolving fund can be used to pay the salaries of those persons who are employed to work in the prison industries plants.
Interpretation of the relevant statutory provisions indicates that the Legislature initially specified that the fund could only be used for the "operation of the various industries" (SDCL 24-7-7). In addition to that, exceptions were made for the warden's salary (SDCL 24-1-8), and to cover any temporary insufficiency in the penitentiary land sale and acquisition revolving fund. (SDCL 24-1-34). Because of the specificity of uses for the fund, it is clear that the legislative intent was to tightly control its expenditures by limiting it to these three areas.
SDCL 24-7-7 provides:
The prison industries revolving fund heretofore created shall henceforth be available for the operation of the various industries herein provided for and such other industries as may be hereafter established by the board. All provisions for the expenditure of such funds other than as in this chapter provided are hereby repealed. Provided, that the salary payable as provided by ยง 24-1-8 shall be paid out of the prison industries fund.
The section establishes "the operation of the various industries" as a valid use for the fund.
The board is then given the power to appoint plant employees (SDCL 24-7-5) using much the same language:
The board shall appoint a superintendent of industries who shall appoint the employees necessary in the operation of the various plants with all salaries to be fixed by the board. The warden of the penitentiary may act as superintendent of industries.
Because the employees of the prison industries are considered necessary for the operation of the plants under SDCL 24-75-5, their salaries seem to be payable from the fund under SDCL 24-7-7.
Slightly different language is used in SDCL 24-7-8:
Separate accounts shall be kept by the superintendent of industries for each separate plant and factory in such a manner that an audit will clearly show the condition of each. He shall, with the approval of the board, from time to time file with the state auditor requisitions for such funds as may be required in the course of the transaction of the business of the prison industries...
Despite the change in terminology, from "operation of the various plants" to "course of the transaction of the business," it is reasonable to interpret them as being synonymous.
I t is noteworthy to mention that the use of the prison industries revolving fund is very carefully limited to the salaries of prison industries employees, and not the salaries of any other prison employees. SDCL 24-1-8 draws such a distinction:
The warden of the penitentiary shall receive a salary to be fixed by the board, any part of which may be paid out of the prison industries revolving fund, and all other officers and employees such amounts as the board may from time to time determine.
In other words, the only employee unassociated with the prison industries plants that can be paid from the fund is the warden, regardless of whether he serves as superintendent of industries.
Further, it would seem logical to use the revolving fund in such a manner as to reflect the actual costs of the prison industries operations. Since a revolving fund was established, rather than any other financing mechanism, it implies that the Legislature intended the operations to be self-supporting, and the fund to be a true picture of net income.
It is, therefore, my conclusion that the salaries of those persons who are employed in the various prison industries clearly fall under the definition of "the operation of the various industries," so that their salaries may be paid from the prison industries revolving fund.
Respectfully submitted,
William Janklow
Attorney General
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