STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL
October 28, 1975
Representative Linda Lea Miller
4100 West Mesa Pass
Sioux Falls, South Dakota 57106
OFFICIAL OPINION NO. 75-183
Registration of lobbyists
Dear Representative Miller:
You have requested our official opinion based on the following factual situation:
During the last legislative session, there were some questions raised relative to the registration of lobbyists and who must register. Several voluntary organizations who had not registered were challenged on various occasions for not being registered.
SDCL 2-12-1 specifically refers to "employment" of a person and to promoting or opposing legislation affecting the "pecuniary interests" of the association.
Based on the above factual situation you ask:
Does "employment" in SDCL 2-12-1 mean a salaried position as opposed to payment of expenses of one speaking on behalf of an association? Further, does "pecuniary interests" mean a direct financial benefit?
SDCL 2-12-1 provides:
Every person, corporation, or association which employs any person to act as counselor agent to promote or oppose in any manner the passage by the Legislature of any legislation affecting the pecuniary interests of any individual, association, or corporation, as distinct from those of the whole people of the state, or to act in any manner as a legislative counselor agent in connection with any such legislation, shall, within one week after the date of such employment, cause the name of the person so employed or agreed to be employed, to be entered upon a legislative docket as hereinafter provided. It shall also be the duty of the person so employed to enter or cause to be entered his name upon such docket. Upon the termination of such employment, such fact may be entered opposite the name of any person so employed, either by the employer or employee.
The fact that wages are paid does tend to indicate an employment relationship, Davis v. Julian, 152 Kansas 749, 107 P. 2d 745; however, the presence of wages is not an essential element to a finding of an employment relationship. Lunt v. Fidelity & Casualty Company of New York, 28 A. 2d 736, 739,740.
It is my opinion, that "employment" within the purview of SDCL 2-12-1 does not necessarily require that an individual be in a salaried position. It appears to me, that an individual can be in the "employment" of a person or association, and merely be reimbursed for expenses incurred while speaking on behalf of the person or association. The provisions of SDCL 2-12-5 clearly indicate that the Legislature intended to cover indirect as well as direct employment. SDCL 2-12-5 provides:
No person, corporation, or association shall, directly or indirectly, employ any person as legislative counselor agent in respect to any legislation coming within the terms of this chapter, unless the name of such person is duly entered on the legislative docket as provided by this chapter.
With respect to the proper interpretation of "pecuniary interests," it is my opinion that the statutory language of SDCL 2-12-1 would cover indirect as well as direct pecuniary interests if the focus of such pecuniary interest was the individual, association, or corporation as distinct from the interests of all the people of the state of South Dakota. The question of whether a given situation involves pecuniary interests of the individual association or corporation as distinct from the interests of the people of the state, must of necessity be reviewed on an individual basis.
Respectfully submitted,
William Janklow
Attorney General
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