STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

October 4, 1974

Mr. Henry James Decker
Commissioner
Bureau of Finance and Mangement

OFFICIAL OPINION NO. 74-42

Withholdings for advance travel payments

Dear Mr. Decker:

You have submitted the following fact situation for analysis and answer:

The rules and regulations regarding advanced travel payments, as promulgated by the Bureau of Finance and Management and filed with the Secretary of State, contain in Rule 39:01:02:02 the following:

Advance Approval: A voucher for a travel advance must be approved by the authorizing agent and signed by the traveler. The voucher will contain an agreement that the traveler will repay any amount of the advance not expended on travel and will allow the State Auditor to withhold from his paycheck any amount owed but not repaid, within fifteen calendar days from the date of his actual expense voucher.

SDCL 3-9-17 states:

The State Auditor is authorized to withhold an amount not to exceed the total amount of travel expense advances from any person who fails to comply with §3-9-15 or §3-9-16.

SDCL 3-9-15 and 3-9-16 provide that each person receiving a travel advance shall, within twenty days of said travel, submit an itemized statement of expenses and if the advance exceeds the actual expense the difference must be repaid within fifteen days and immediately upon termination of employment.

In regard to the above fact situation the following question is presented:

What portion of an employee's paycheck may the State Auditor withhold when the individual has failed to comply with §3-9-15 or §3-9-16?

A statute is open to construction only where the language used therein requires interpretation or may be reasonably considered ambiguous. Thus, where no ambiguity appears, it is presumed that the clear and explicit terms of a statute express the legislative intention. A plain and unambiguous statute is to be applied without interpretation since such a statute speaks for itself and any attempt to make it clearer is a vain labor and tends only to obscurity.

The statutes involved in your question are clear and comport with the plain meaning doctrine. Construing SDCL 3-9-15 together with 3-9-17, it is the opinion of this office that the State Auditor may not withhold from the paycheck of one who has received advance travel expenses more than that portion actually due the State of South Dakota.

Clearly, the actual travel expense is a debt which must ultimately be borne by the State of South Dakota and the difference by which that advance exceeds the actual expense is owed to the State by the employee to whom the money was advanced. Applying this rationale it is clear that the State Auditor may withhold from the employee's paycheck only that amount actually due the State of South Dakota.

If the situation should arise in which an employee fails to comply with the mandates enunciated in §3-9-15 and §3-9-16, the State Auditor is authorized to withhold from the employee's paycheck the entire amount advanced for travel. This applies following the theory that since no itemization of actual expense was filed there is no debt ultimately payable by the State and the amount advanced is a debt between the State and the employee to whom the sum was advanced.

Therefore, in answer to your question, the State Auditor may withhold the entire amount actually advanced under the statute and regulation when the employee fails to comply with the requirements of §3-9-15 and §3-9-16.

Respectfully submitted,

Kermit A. Sande
Attorney General

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