September 27, 1989

Karen A. Johnson
Custer County State's Attorney
P.O. Box 749
Custer, SD 57730

OFFICIAL OPINION NO. 89-26

County funding of nonprofit or charitable organizations for distribution of food assistance to indigent or poor persons pursuant to SDCL ch. 28-13

Dear Ms. Johnson:

On behalf of Custer County, you have requested an official opinion.

You have submitted the following:

FACTS:

Custer County, under its Poor Relief Ordinance of 1986, provides food assistance to indigent residents. Such assistance becomes a lien on the individual's property. The Custer Food Pantry receives donations of food and money from various churches, organizations and individuals in the community. Custer County is considering incorporating the Custer Food Pantry into their county budget and referring indigent individuals in need of food to the Custer Food Pantry.

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

QUESTIONS:

1. May Custer County make the Custer Food Pantry part of its budget?

2. If Custer County can make the Custer Food Pantry a part of its budget, can it require that indigents who need food assistance get the assistance from the Custer Food Pantry?

3. Would food assistance received from the Custer Food Pantry be a lien against an indigent's property where the indigent was referred to the Custer Food Pantry for food assistance?

4. If Custer County may refer indigents in need of food assistance to the Custer Food Pantry, would Custer County and Custer Food Pantry be immune from damages resulting from the condition of distributed food?

In responding to the foregoing questions as submitted, it will be assumed that the Custer Food Pantry is a bona fide charitable or nonprofit organization pursuant to both the applicable laws of South Dakota and in accordance with the Internal Revenue Code of 1986.

IN RE QUESTION NO. 1:

SDCL ch. 7-21 sets forth the applicable law on county budgets and appropriations. Under SDCL ch. 28-13, each county is charged with the care and relief of indigent and poor persons residing therein and is, therefore, required to include budgetary funding for such care and relief.

SDCL 28-13-16 states in pertinent part:

The county commissioners in each county shall have the oversight and care of all poor persons in the county so long as those persons remain a county charge, and shall see that those persons are properly relieved and taken care of in the manner provided by law.

The South Dakota Supreme Court has further determined that while each county has a duty to administer relief and assistance to indigent or poor persons, they do have a choice as to the means by which such relief is provided.

Jerauld County v. St. Paul-Mercury Indem. Co., 76 S.D. 1, 71 N.W.2d 571 (1955). Hence, where the provision of food may be necessary to properly care for a county's indigent or poor and the commissioners of that county determine a food pantry program to be an appropriate means, SDCL 28-13-16 would seemingly authorize a county to fund such a program. However, food distributed by a food pantry organization, funded in part or in whole by a county, does not relieve the county of its duty to determine eligibility pursuant to SDCL ch. 28-13.

In order for a county to administer assistance, the individual in need of assistance must 1) make application to the county for relief or assistance, and 2) based upon the contents of the application, be determined to be an indigent or poor person, as defined by SDCL 28-13-1.1, as well as a resident of the county in which relief is sought, pursuant to SDCL 28-13-3. Accordingly, a community food pantry program in receipt of county funding would be required to maintain and utilize such funds exclusively for the administration and distribution of food to indigent or poor persons determined to be eligible pursuant to SDCL ch. 28-13.

IN RE QUESTION NO. 2:

As previously discussed, county commissioners are charged with the proper care of indigent or poor persons who meet statutory standards as set forth in SDCL ch. 28-13. In addition, the Court in Jerauld County v. St. Paul-Mercury Indem. Co., supra, established that selection of the means by which relief and assistance shall be provided is within the purview of authority granted county commissioners. Therefore, requiring indigent and poor persons qualifying for relief and assistance, pursuant to SDCL ch. 28-13, to obtain necessary food from a county funded food pantry program is authorized by statute and supported by case law. As a result, the answer to your second question is "yes."

IN RE QUESTION NO. 3:

SDCL 28-13-20 authorizes counties to enter into contracts with qualified indigent or poor persons for the repayment of funds expended by the county for assistance or relief, stating:

Whenever financial assistance is requested under the provisions of this chapter, the board of county commissioners may require the applicant to perform labor or other services of a public nature commensurate with the amount of aid desired or granted. In addition, the board may require the recipient of assistance to enter into a contract for the repayment of all or part of the assistance he receives.

The plain language of the statute specifies that a county may seek reimbursement for "assistance" received, but makes no reference to the administrative cost associated with such assistance. Therefore, administrative costs may not be assessed against an indigent or poor person otherwise qualifying for assistance under SDCL ch. 28-13. Those costs should be borne by the county.

The foregoing, however, does not foreclose the possibility that a food pantry program may employ county funding to purchase food items for distribution to authorized recipients, in which case a lien in the amount of the actual cost of such food items may be assessed against the recipient.

IN RE QUESTION NO. 4:

SDCL 39-4-22 provides:

The good-faith donor of any perishable food, apparently fit for human consumption, to a bona fide charitable or nonprofit organization for free distribution, or a gleaner of any perishable food apparently fit for human consumption, is not subject to criminal penalty or civil damages arising from the condition of the food, unless an injury is caused by the gross negligence, recklessness or intentional conduct of the donor or gleaner.

SDCL 39-4-23 further provides:

A bona fide charitable or nonprofit organization which in good faith receives food, apparently fit for human consumption, and distributes it at no charge, is not subject to criminal penalty or civil damages resulting from the condition of the food unless an injury results from the gross negligence, recklessness or intentional conduct of the organization.

My predecessor in office opined that SDCL 39-4-23 presumes to exempt "a bona fide charitable or nonprofit organization" from "criminal penalty or civil damages." See Official Opinion No. 84-15. Hence, where a food pantry program could be organized as a bona fide charitable or non-profit organization, and recipients receive food items free of charge therefrom, liability would appear to be limited by statute.

Whether the county either takes over operation of the food pantry through county funding for the purchase of food items or simply bears the administrative costs associated with determining eligibility of indigents who will make use of the food pantry, the liability question hinges on whether the food pantry will be considered "a bona fide charitable or nonprofit organization" under the applicable statutes.

In my opinion the proposed county food pantry could be considered a bona fide nonprofit organization as that term is defined by statute. SDCL 34-18-1(8) specifically provides that a nonprofit organization is:

[A]ny governmental organization, church, fraternal, social, school, youth or other similar organization that is organized and operated for a common good and not for the specific monetary gain of any person or persons.

The foregoing definition would apply to SDCL  39-4-22 and 39-4-23 through the principle of statutory construction which provides that whenever the meaning of a word or phrase is defined in any statute, such definition is applicable to the same word or phrase whenever it occurs in statute. SDCL 2-14-4.

Under the facts presented herein, it is evident that the proposed Custer County Food Pantry would be a quasi governmental organization that would, in fact, be operated for the common good and not for the specific monetary gain of any person. As a result, it would be my opinion that the statutory liability limitation within SDCL 39-4-22 and 39-4-23 would apply under these facts to limit the liability exposure of the county for tainted food items distributed under this program.

Respectfully submitted,

ROGER A. TELLINGHUISEN
ATTORNEY GENERAL

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