STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL
June 23, 1970
Miss Alma Larson
Secretary of State
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 70-26
Interpretation of Senate Bill No. 219, enacted in 1970, is improper at this time, as such provides the Attorney General perform certain discretionary duties
Dear Miss Larson:
Much interest has been expressed to this office in regard to the purpose and application of Senate Bill No. 219 enacted by the 1970 Legislature, that I am issuing this official opinion to you, for clarification of this enactment. Senate Bill 219, of the 1970 Legislature, approved on February 16, 1970 by the Governor, adds a new section to SDCL 3-5 which reads as follows:
The director of the division of purchasing and printing, with the approval and advice of the attorney general and state insurance commissioner, may provide for the purchase of a blanket bond or bonds, covering all state employees, officers, members of state boards and commissions, and appointees of the governor, required by law to give bonds and whose bonds are required by law to be paid from the state general fund. The terms of bonds authorized under this Act may be up to five years.
Before considering this 1970 enactment, we must look at the status of the law as it existed prior to such enactment, in order to determine what, if any, evil or vice the Legislature was concerned with when it enacted Senate Bill No. 219 in order to add a new section to Chapter 3-5 of our present code.
SDCL 3-1-5 and 3-5-1 require that official bonds must be given by all state officers, appointees of the Governor, or employees of the state, required by law to give bonds before entering upon the duties of office. SDCL 3-5-3 specifically requires the following state officers to give bonds in these designated amounts:
State Auditor-Ten Thousand Dollars
State Treasurer-Five Hundred Thousand Dollars
Secretary of State-Five Thousand Dollars
Superintendent of Public Instruction-Two Thousand Dollars
Commissioner of School and Public Lands-Twenty Thousand Dollars
Attorney General-Three Thousand Dollars
As we know the executive branch of state government has a proliferation of commissions, boards, departments and divisions. It is not surprising to discover that if any officer or employee under such legislative created departments in the executive branch of government is entrusted with public funds, the Legislature has wisely required that he post bond for the faithful performance of his duties. Thus, in addition to the listing of the public officers, as above given, we find, without citation of the statutory basis, that the following persons are required to post bonds as a condition of entering into public duties; Auditor General ($10,000) Members of the South Dakota Building Authority ($25,000), Deputy State Auditor (One half of the bond of his principal), State Engineer ($5,000), Deputy State Engineer ($2,500), Secretary of State Fair Board (not less than $5,000), Secretary of State Historical Society ($5,000), Secretary of Finance (not less than $10,000, as fixed by Governor), Directors of Divisions of the Finance Department, including the Assistant Director of Purchasing and Printing, (not less than $5,000 as set by Secretary of Finance). I could continue on with such list, but this seems redundant. SDCL 3-2-4 provides that except when otherwise provided, each officer required to give bonds, may require his deputy or assistant to give bond in a penal sum of not greater than one-half of the bond required of the principal.
It should be also noticed that our statutes do not limit such official bonds as given to corporate surety bonds. Such bonds, if desired, can be given by personal sureties. However, in such case, such must be given with at least two sureties for all state officers, except the state treasurer must give a bond with at least four sureties (SDCL 3-5-4). If corporate surety is given by a surety company legally authorized to transact business in this state, "the state or any of its departments" is authorized to pay the premium on such bond (SDCL 3-5-5).
It must be presumed that the Legislature was well acquainted with the various bonds they require to be given as a condition precedent to assuming public office. They must be presumed to know that such bonds range from two thousand five hundred dollars to five hundred thousand dollars in penal amounts and all other matters heretofore briefly summarized.
With this basic knowledge in mind, it is clear that the Legislature, by Senate Bill No. 219 of the 1970 Legislative Assembly, did not make it the mandatory duty to "purchase a blanket bond or bonds" covering such state employees, officers, members of state boards and commissions, and appointees of the Governor, required by law to give bonds (the premium of which is required by law to be paid from the state general fund)" but rather discretion is granted to the director of purchasing and printing to make such purchase of blanket bond or bonds, if the approval and advice of the Attorney General, and the State Insurance Commissioner to such a purchase is first obtained.
Likewise, it is apparent, that whether or not "approval and advice" of either of such named officers (the Attorney General and the State Insurance Commissioner) will be given depends upon the exercise of discretion by each of them, independent of the discretion of the other. There is no question that the "approval and advice" of one of such officers alone is insufficient. Each must give such "approval and advice," before the Director of Purchasing and Printing may provide for the purchase of a blanket bond or bonds for the listed public officials.
The term "blanket bond" or "blanket bonds," while never interpreted by a court of competent jurisdiction in the United States, insofar as my research has indicated, is nevertheless a term of common understanding in South Dakota. It is a bond that covers more than one person, within the expressed agreement of the parties thereto. Therefore, while a "single" bond, covering all state employees, officers, members of state boards and commissions and appointees of the Governor, required to furnish bond, might be covered by but a single "blanket" bond, the statute does not require such blanket bond to be limited to but a single bond.
The statute, as I have stated, requires the "approval and advice" of the Attorney General and the State Insurance Commissioner, as a condition precedent to the purchase of any such blanket bond. Because this statute places such duty on me, it would seem improper for me to discuss the propriety of a single blanket bond, as distinguished from more than one blanket bond at this time, other than to state that the statutory authorization does not limit such to but one blanket bond, but permits more than one blanket bond to be purchased.
Inasmuch as Senate Bill No. 219 does not become effective until July 1, 1970, and until sometime after that date when, and if, the Director of the Division of Purchasing and Printing, within his discretion, concludes such blanket bond or bonds should be sought, and therefore seeks the approval of myself, and the State Insurance Commissioner, in which event the Insurance Commissioner and the Attorney General, in the exercise of the discretion implied by the term "advice," must determine the form, number and procedure to obtain the blanket bond or bonds. Until this contingency occurs, it would be improper for me to make further comment on this law.
Respectfully submitted,
Gordon Mydland
Attorney General
