STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

August 25, 1975

Mr. James Guffey, Secretary
Commerce & Consumer Affairs
Capitol Building
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 75-147

Registration of management consultants, as corporation and/or individually

Dear Mr. Guffey:

You have requested an official opinion based upon the following facts:

A management consultant corporation registers as a management consultant with the Department of Commerce and Consumer Affairs. Employees of this corporation who do the work also meet the definition of management consultant.

Based on these facts, you ask:

1. When a corporation has registered, does each employee of the corporation who acts on behalf of the corporation as a management consultant have to register separately?

2. If the employee is required to register, must the employee remit the registration fee as well?

SDCL 37-11A-l contains the following definition of management consultant:

"Management Consultant." Any person, firm or corporation offering to sell or selling business management advice to individuals, business entities or units of government. Specifically excluded from this definition are any person, partnership, firm or corporation, including the officers and employees thereof, who is licensed or registered to conduct a profession or operate a business or educational institution in the State of South Dakota and who, incidental to that business or profession, provides business management advices.

SDCL 37-11A-3 provides:

The registration pursuant to Section 37-11A-2 shall require the applicant to furnish the name of the applicant; permanent address of the applicant; whether he is affiliated with the management consultant company; if he is so affiliated, the name and address of the company; past consulting or business experience; and such other information as the secretary may reasonably require.

The above-cited statutory provisions lead one to conflicting views with respect to the first question you ask. If one were to adopt the interpretation that each employee of a corporation must register separately, it is difficult to see what effect, if any, can be given to the statutory definition of "management consultant" being "any person, firm, or corporation." On the other hand, if a corporation can register and thereby have all of its agents registered, without being individually registered, the provisions of SDCL 37-11A-3, which refer to the registration requiring information as to whether or not the applicant is affiliated with a management consultant company, seems to be inconsistent and out of place.

It appears to me, that the conflicts apparent in SDCL 37-11A would be best clarified by additional legislation. Until such time as the Legislature does act to clarify these questions, it is my opinion that the law presently provides that when a corporation has registered, each employee of such corporation does not have to register separately. In view of the provisions of SDCL 37-11A-4 which provides for adopting rules and regulations, the Secretary could provide, by rule, that such corporations list on their registration, the names of the individuals who will be authorized to act on behalf of the registered corporation. In this way, the Department could regulate, to some degree, the potential for abuse inherent in allowing just the corporation or firm to register.

In view of the answer to question number one above, no answer to your second question is necessary.

Respectfully submitted,

William Janklow
Attorney General

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