February 7, 1989

Dennis Groff
Pennington County State's Attorney
P.O. Box 2008
Rapid City, SD 57709

Official Opinion No. 88-56

Possible referendum involving Executive Resolution 

Dear Mr. Groff:

You have requested an official opinion from this Office regarding the following facts:

FACTS:

At the end of 1985 and 1986 budget years the Pennington County Board of County Commissioners transferred budget surpluses to an accumulated building fund set up to defray anticipated capital improvement expenses.  In November of 1987 the Board of Commissioners organized a committee to investigate the space needs of county government and the court system to make a recommendation as to whether an annex to the existing Courthouse should be constructed.  This committee recommended construction of an annex based on the existing space needs of the courts and county government.  The Board of Commissioners by resolution has accepted that recommendation and authorized bids to be let for the construction of the new annex.  The annex would house both county government offices and the court system.  The projected cost of the annex could be covered by the accumulated building fund without additional tax levies but funding for the construction was not specifically addressed in the resolution.  

Based upon the foregoing facts, you have asked the following questions:

QUESTIONS:

1.   Is the resolution to proceed with construction of the annex passed by the Board of County Commissioners not subject to referendum pursuant to SDCL 7-18-15 because it is necessary for the support of county government and its existing public institutions?

2.   Is the resolution to proceed with the construction of the annex passed by the Board of County Commissioners not subject to referendum pursuant to SDCL 7-18A-15.1 because it is an administrative decision?  

It appears from the factual situation that there is little question with regard to the reason for the August 9, 1988, Executive Resolution of the Pennington County Commissioners.  It would seem to me that the resolution was passed in order to provide county government with the necessary space to house both county government offices and the court system.  The county is, of course, obligated to provide the court system with such office space.  Space within which to conduct government business is as vital as the funding necessary to conduct such governmental business.  The Pennington County Board of County Commissioner's decision to proceed with construction of an annex to the existing courthouse in Rapid City therefore appears to be a resolution for the support of county government and its existing public institutions.  See SDCL 7-18A-15, Gravning v. Zellmer, 291 N.W.2d 751 (S.D. 1980).  This resolution appears to be an administrative decision which is not subject to the referendum process.  See SDCL 7-18A-15.1.

Accordingly, my answer to your first question is NO.  The resolution to proceed with the construction of the annex passed by the Board of County Commissioners is not subject to referendum.

Your second question primarily inquires whether the resolution to proceed with the construction of the annex is an administrative decision thereby exempting it from the referendum process.  As discussed above, it appears that there is little doubt that such a resolution is necessary for the support of county government and its existing public institutions since it is required to provide space to the court.  A study of such space requirements by the county since September of 1987 apparently suggests that the space is badly needed.  More importantly, such a resolution can reasonably be seen as executing a plan which was already adopted by the Pennington County Board of County Commissioners.

Consequently, it is my opinion that the authorities support that this type of resolution proposing the construction of an annex to the existing courthouse is not subject to the referendum process.  See also, Attorney General Opinion No. 88-27.  

Accordingly, my answer to your second question is YES.  The resolution to proceed with the construction of the annex is not subject to referendum.

Sincerely,

Roger A. Tellinghuisen
Attorney General