STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

November 30, 1973

Gerald Andrews
Commissioner of the Bureau of Administration
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 73-41

Lease for food service space within state government buildings.

Dear Mr. Andrews:

You have asked for an official opinion on the following question:

Which agency or officer of state government has the responsibility of negotiating and executing leases for space within the Capitol Building, and other governmental offices, for food services and concessions, such as cigarette, pop and candy machines?

Unfortunately, the Legislature has never considered this problem, and it is herein strongly recommended that the Legislature take steps to clarify the authority of the various agencies to enter into leases and contracts. Therefore, the answer to your question involves the construction of several statutes.

The Capitol Building, as well as the Soldiers and Sailors Memorial Building, State Office Building No.1, and State Office Building No.2, also known as the old highway building, are subject to the "control and supervision" of the Bureau of Administration. See SDCL 5-15-25 as amended by §1-14-1. Words used in statutes are to be understood in their ordinary sense. SDCL 2-14-1. It is therefore my opinion that §5-15-25 gives the Bureau of Administration, pursuant to its "control and supervision" of these buildings, the authority to execute and negotiate leases for a centralized food service operation as well as for vending machines.

SDCL 5-15-17 gives the Capitol Grounds Enlargement and Beautification Commission the following authority:

The commission shall have the power to lease, manage, control and maintain any of the property heretofore or hereafter acquired by it, and to execute lease, or rental agreements therefor as it may deem advisable not exceeding terms of two years, Which shall be executed by the chairman and secretary.

The specific existing buildings which this statute covers are located in the Capitol Grounds Addition to the City of Pierre. See SDCL 5-15-14. This addition is located to the north of the Capitol Building in the area known as Hilger's Gulch. The present buildings located within this addition are the insurance building, also known as the old Mormon Church, the Falk House and the new Highway Building. The office building which is scheduled to be built during 1974 will also be located in this addition. Leases for space for food service and vending machines in the above 'buildings will have to be negotiated and executed by the Buildings and Grounds Commission, pursuant to SDCL 5·15·17.

Other buildings or other office space owned or leased by the State of South Dakota, either in the Pierre area or elsewhere in the State are under the control of the executive officer of the state agency which is housed in the space provided. Where two or more agencies are located in the same building, each agency would have control over that portion of the building assigned to it. This control is part of the agencies' inherent powers to carry out their legislative functions. In the absence of any other legislation, such as above, an agency has the authtrity to purchase or rent space, equipment, or services necessary to carry out its assigned functions.

Under modern personnel policy, it is almost mandatory that employees receive rest periods, known as coffee breaks. It is part of an agency's duty to make provisions for its employees to implement such policies, unless such facilities are otherwise provided.

Any proposed contract for the lease of space or furnishing of services for such purposes, whether by the Bureau of Administration, the Capitol Grounds Commission, or any other agency or officer must be submitted to the Attorney General for review prior to the advertising for bids on it. SDCL Ch. 1-11.

Respectfully submitted,

Kermit A. Sande
Attorney General