December 18, 1989

Terry C. Anderson, Director
Legislative Research Council
State Capitol
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 89-34

Votes required for the Legislative Research Council Executive Board to act

Dear Mr. Anderson:

You have requested my official opinion on the following factual situation:

FACTS:

At a recent meeting of the Executive Board of the Legislative Research Council, a question arose concerning the number of votes needed for the Board to act upon the matters before it. Some members of the Board are of the opinion that the vote required for the Board to act is a majority of the members elect, but other Board members believe that only a majority of the members present is sufficient for the Board to act.

Based upon the above factual situation you have asked the following question:

QUESTION:

Does SDCL 2-9-5 require a majority of the members-elect or a majority of the members present to act on matters within the Board's duties, powers and authority, assuming a quorum is present?

IN RE QUESTION:

As you note, SDCL 2-9-5 contains certain parliamentary procedural guidance for meetings of the Executive Board of the Legislative Research Council. That statute reads as follows:

The executive board shall meet as often as may be necessary to perform its duties; provided that in any event, it shall meet at least four times each year. All regular meetings shall be held at the state capitol. A majority of the members shall constitute a quorum, and a majority thereof shall have authority to act on any matter falling within the scope of said executive board's duties, powers, and authority. The board shall make its own rules and regulations, keep complete minutes of its meetings, and make an annual report to the Legislature.

The focus of your question is on lines six through eight of the statute. It is undisputed that a simple majority of the members of the Executive Board need be present to constitute a quorum of that body. The heart of the question is whether the word "thereof" refers back to "quorum" or to the membership of the Board in total.

The South Dakota Supreme Court has recognized a rule of grammatical and statutory construction that applies to this situation. Earlier this year, the Court stated:

We find these divergent interpretations of [the statute in question] to be clearly resolved by the rule of statutory construction known as the Doctrine of the Last Antecedent. The doctrine was long ago adopted by this court in Lewis v. Annie Creek Mining Co., 74 S.D. 26, 48 N.W.2d 815 (1951). In Lewis this court stated, `[i]t is the general rule of statutory as well as grammatical construction that a modifying clause is confined to the last antecedent unless there is something in the subject matter for dominant purpose which requires a different interpretation.' Lewis, 74 S.D. at 33, 48 N.W.2d at 819.

Kaberna v. School Board of Lead-Deadwood, 438 N.W.2d 542, 543 (S.D. 1989).

In the matter at hand, the second half of the sentence (everything after the comma) becomes the "modifying clause" and the word "quorum" is, of course, the "last antecedent." Thus, "majority thereof" refers back to "quorum," thereby allowing a majority of a quorum to act on behalf of the Executive Board.

In Official Opinion No. 87-18, I opined that SDCL 2-14-15 applies to SDCL 14-1-55, a statute dealing with the State Library Board. I stated that SDCL 2-14-15 requires not only that a majority of a governmental board is necessary to constitute a quorum, but also that a majority of such board, as opposed to a majority of the quorum, must agree in order to take official action on behalf of that board. The last sentence of that opinion stated, "In the absence of any specific statutory language to the contrary the same result should apply to any board or commission established under the code." In this case, SDCL 2-9-5 does contain specific language to the contrary.

Based on the foregoing, it is my opinion that SDCL 2-9-5 requires only a simple majority of Legislative Research Council Executive Board members to conduct business and, further, that only a simple majority of such quorum is required to act officially on behalf of the Board.

Respectfully submitted,

ROGER A. TELLINGHUISEN
ATTORNEY GENERAL

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