STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

September 26, 1975

Miss Alice Kundert
State Auditor
State Capitol Building
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 75-168

Interpretation of SDCL 3-9-7

Dear Miss Kundert:

You have requested an official opinion from this office based on the following facts:

More and more state departments and agencies are requesting that their expenses and those of their employees be paid for setting up booths or exhibits at the State Fair and for manning the same. These requests extend to reimbursement of expenses for meetings or state business in the cities at the time that the Corn Palace, State Fair, Inaugural, state basketball games and other like public meetings and events are being held in these cities. The various departments and agencies claim that

(1) they must be at this time and place to conduct state business

(2) scheduling has placed them inadvertently in this area on state business at the date of the public meeting or event

(3) that their business is so related to the event in progress that they must be present and demand that they be compensated by having their expenses paid by the state.

Based on the above facts you ask:

1. In the interpretation of SDCL 3-9-7, are any exceptions allowable other than that of SDCL 1-21-11 which allows the Department of Agriculture to be present and compensated as so referenced in that statute?

2. When state employees or officials are in the same city at the same time as the public meeting or event, actually conducting state business, is compensation of expenses then legal?

3. What constitutes a "like" public meeting? Are state basketball tournaments and other state wide activities included? Also, are county fairs and local activities considered "like" meetings?

SDCL 3-9-7 provides:

Except as provided in § 1-21-11, the state auditor is prohibited from issuing any warrant for the payment of expense incurred by any state officer, employee, or member of any state board, in attending any political meeting, state fair, corn palace, inaugural, or other public meeting of like character.

SDCL 1-21-11 provides:

The state fair board shall have authority, for the proper protection of the public buildings at the state fair ground and all livestock there exhibited, to require the presence of the secretary of agriculture, the state veterinarian, and any necessary deputies thereof, at the annual state fair, and the actual and necessary expenses thereof shall be paid by the state in the usual manner.

The above statutes clearly indicate that with certain specified exceptions there is a prohibition against paying expenses incurred by state officers or employees in attending any of the meetings specified or referred to in SDCL 3-9-7. A question which is integral to the matters you raise relates to just what is meant by the term "attending" any of the proscribed meetings. Although the statute is somewhat vague in this regard, it is my opinion that in interpreting SDCL 3-9-7 one must distinguish between state officers or employees who "attend" these meetings from those officers or employees who because of the nature of their work, are required to be at these meetings to carry out the responsibilities and duties they are charged by statute to perform.

In determining whether or not a state officer or employee is for example "required" to be at the State Fair to fulfill the duties imposed upon him, it is my opinion that it is not a sufficient "requirement" if the individual is at the fair merely for purposes of personal or state agency public relations and public information. Officers and employees of the state who are involved in necessary law enforcement, health regulation, and collection and auditing of certain tax and revenue matters, are examples of officers and employees in my judgment which can be seen as an exception to the provisions of SDCL 3-9-7, if indeed, such officers and employees are performing their official duties at such meetings. I do not mean to imply, however, that the above examples are the only possible officers or employees that can meet the test. If other employees or officers demonstrate that their statutory duties require them to be at the meeting referred to in SDCL 3-9-7, and if such requirement is clearly not in the nature of being present for publicity, public information, or personal politics, the payments of their expenses would not be in violation of SDCL 3-9-7.

It must be presumed that when the Legislature passed SDCL 3-9-7, they intended a reasonable result. Since there clearly is a necessity for certain state officers and employees to be "on the job" at public meetings such as the State Fair, it is not reasonable to conclude that the provisions for payment of expenses provided in SDCL 3-9-1 and 3-9-2, for example, should be withheld from a state officer or employee in the pursuance of his duty, merely because he is performing that duty at the State Fair. SDCL 3-9-7 appears to me to be directed at the situation where state officers, employees, or members of any state board, travel to any such meetings covered by SDCL 3-9-7 under the guise of official duty and for essentially personal reasons or reasons unrelated to the necessary performance of their official duty.

In regard to your second question, in my opinion the prohibition of SDCL 3-9-7 would also apply to the meetings of various state boards and commissions which, for example, unnecessarily plan a meeting to be held in Huron during State Fair week. With respect to state officers and employees who find it necessary for the performance of their duties to be, for example, in Huron during State Fair week but not for a purpose related to the fair, it seems illogical to say that they can not be paid their expenses. Even SDCL 3-9-7 refers to attending the various public meetings. SDCL 3-9-7 should not be interpreted to prohibit payment of expenses for official business to Huron just because the fair is on. Such expenses should be paid, however, only after you are satisfied that in the individual situation the expenses for duties performed were a necessary part of an officer's or employee's official duties and that the employee did not in fact attend the fair or similar meeting covered by § 3-9-7. Any other interpretation here would defeat either the intent of SDCL 3-9-1 and 2 or 3-9-7. This conclusion may seem to be harsh, but it appears to me that this is what the law requires.

With respect to the third question you ask, it appears to me that the phrase "or other public meeting of like character" must be interpreted in view of the "like character" of the meetings enumerated. Certainly, political meetings can be local as well as statewide. In my opinion, the state basketball tournaments are clearly a "public meeting of like character" covered by SDCL 3-9-7. Obviously, it is impossible to list all of the possible public meetings that would be covered by this provision. It is my opinion, however, that inasmuch as the provisions of SDCL 3-9-7 refer to any political meeting which I believe to include local as well as statewide political meetings, the attendance of state officers or employees at county fairs would also be within the purview of SDCL 3-9-7. Once again, this conclusion may seem harsh, but if the Legislature does not intend this result, SDCL 3-9-7 should be amended.

Since there has been considerable uncertainty and confusion in the past over the proper interpretation of SDCL 3-9-7, it is my judgment that this opinion should not be construed in a retroactive manner so as to adversely affect the payment of expenses incurred by state officers or employees which have been allowed in the past.

Respectfully submitted,

William Janklow
Attorney General

WJJ:DOC:rw