STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

December 18, 1968

John E. Madigan, Director
Commission of Mental Health
and Mental Retardation
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 68-50

Control of the Division of Prevention of Alcoholism by the Commission of Mental Health

Dear Mr. Madigan:

You have asked for an official opinion on the following questions:

"1. Is the Division of Prevention of Alcoholism and Treatment of Alcoholics responsible to the Commission of Mental Health and Mental Retardation, or is it a separate entity?

"2. Which agency is responsible for the implementation of Chapter 127 of the Session Laws of 1967?

"3. If the Division is a separate State Agency, is the Commission in any way responsible and/or accountable for actions taken by the Division?"

To simplify this opinion, the two entities will be referred to as "the Division" and "the Commission."

The Division was created by the] 967 Legislature (Ch. 281, 1967 S.L.). The formal enactment clause stated:

"There is hereby created a Division of Prevention of Alcoholism and Treatment of Alcoholics of the State Commission of Mental Health and Mental Retardation "

Using the ordinary guides to legislative construction, it seems clear that the intention was to make the division a part of the Commission and not a separate unit of government. However, the Act also outlined the duties of the Division and put the administration of these duties into the hands of a five member board, appointed by the Governor. There is no provision in the Act for any control over the Division by the Commission, or for any form of cooperation between the two.

So while the Division is technically a part of the Commission, it is autonomous insofar as the performance of its duties is concerned. I also note that the Division has a separate appropriation and approves its own vouchers. The answer to your first question is, therefore, NO. The Division is not responsible to the Commission for the performance of its duties.

The answer to your second question is, "the Division." This statute is clear and unambiguous. It states:

"Any person committed to the State Hospital under the provisions of this Act shall upon release be subject to the direct supervision and control of the State Division of Prevention of Alcoholism and Treatment of Alcoholics.. . ."

The Commission is not responsible for the actions of the Division which are taken by the Division to implement its duties, for the reasons stated in the answer to Question No. 1. This should answer your third question.

Respectfully submitted,

Frank L. Farrar
Attorney General