STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

October 21, 1974

Dr. Donald Barnhart
State Superintendent of Public Instruction
Division of Elementary and Secondary Education
State Capitol Building
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 74-44

Administrative relationship of the Secretary of the Department of Education and Cultural Affairs to the Divisions

Dear Dr. Barnhart:

You have requested an opinion on the following:

There is considerable misunderstanding over the meaning and intent of the executive order which establishes the Department of Education and Cultural Affairs.

It was our understanding that in light of the executive order that the Division of Elementary and Secondary Education consists of the former Department of Public Instruction and is headed by the State Board of Education and the State Superintendent of Public Instruction. This, in my opinion, establishes the State Board's and my adminstrative authority over the Division of Elementary and Secondary Education.

In contacting various agencies of the state government, for example the Bureau of Personnel, relative to the reclassification of two professional employees, we were informed that this was not a matter to be taken up directly with them as they referred our request to the Secretary of Education and Cultural Affairs for review and recommendation.

It is our understanding that the Secretary of Education and Cultural Affairs is to (1) encourage the coordination of activities and to undertake planning for comprehensive education and cultural affairs-more specifically the Secretary is responsible for reviewing the budget requests from each Division and make a budget recommendation for the Department for the Governor and, if requested, to the Legislature to issue procedural guidelines for the respective divisions or subdivisions; (2) utilize in developing and implementing comprehensive educational and cultural affairs plan; (3) developing recommendations to the Commission for comprehensive education and cultural affairs plans based on the Division plans, and (4) encouraging coordination among the various Divisions and among the subunits of the Division of Cultural Affairs.

To clarify the relationship relative to the administration of the Division of Elementary and Secondary Education, I specifically request you clarify my authority for its administration. In addition, I would appreciate your spelling out the limitations of the Secretary of Education and Cultural Affairs in the administration of the Division of Elementary and Secondary Education.

SDCL 1-45-1, as created by Executive Order 73-1, reads as follows:

There is hereby created a department of education and cultural affairs.

SDCL 1-45-4, as created by Executive Order 73-1, reads as follows:

The department of education and cultural affairs shall consist of the divisions of elementary and secondary education, vocational education, higher education and cultural affairs which are hereby created and such other divisions and agencies as may be created by law, executive order or administrative action and placed within the department. Each division shall perform its prescribed functions, subject to the provisions:

(1) That the secretary of the department shall review and make recommendations concerning the annual budget request of each division, and in the instance of the division of cultural affairs, each section thereof, and

(2) That the education and cultural affairs planning commission established by this chapter shall have the authority to approve comprehensive education and cultural affairs plans for the department.

SDCL 1-45-6, as created by Executive Order #73-1, reads as follows:

The head of the division of elementary and secondary education shall be the board of education, which, in addition to its prescribed statutory functions prior to July 1, 1973, shall exercise the administrative functions of the division. (emphasis supplied)

SDCL 13-1-2.1, as created by Executive Order #73-1, reads as follows:

The board of education shall have the authority to appoint the superintendent of public instruction, who shall be responsible to the board.

SDCL 1-45-33, as created by Executive Order #73-1, reads as follows:

(l) Review and make recommendations concerning the budget requests of the divisions and sections under the department of education and cultural affairs;

(2) Make recommendations concerning comprehensive plans to be considered by the education and cultural affairs planning commission;

(3) Encourage and foster coordination among the divisions and sections of the department; and

(4) Perform any central services functions for the department as may be assigned to his office. The secretary shall, however, perform administrative functions only with respect to his immediate office and not with respect to any division or section of the department. (emphasis supplied)

Subsection 12 of SDCL 1-32-1, as created by Executive Order #73-1, reads as follows:

"Administrative function," means any management function to include planning, developing, and implementing programs; organizing the internal structure of a department or agency; selecting, appointing, promoting, removing, and managing personnel; directing, administering, reviewing, and coordinating activities and programs assigned to a department, agency or organizational subunit; reporting; and budgeting and expending funds, including, unless excepted, special budgetary functions.

It is my opinion that it was the intent of the Executive Order that the state Board of Education would be responsible for the "administrative function" of the Division of Elementary and Secondary Education as set forth in SDCL 1-32-1(12), and that the Secretary of the Department of Education and Cultural Affairs would be responsible for the "administrative function" of his immediate office.

Respectfully submitted,

Kermit A. Sande
Attorney General

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