May 12, 1980
Mr. Rodger Pearson, Acting Director
Department of Agriculture
Division of Conservation
Room 332
Anderson Building
Pierre, South Dakota 57501
Official Opinion No. 80-33
Amendment to SDCL 38-8A-12
Dear Mr. Pearson:
You have requested an official opinion from this office in regard to the following factual situation:
FACTS:
The 1980 Legislature passed House Bill 1285 to 'allow for revision of conservation district standards by initiative election.' A copy of the act, as it will be codified, is attached.
This act raises a number of questions of applicability and effect.
It is anticipated that the procedure allowed by the act will be used in at least one conservation district immediately after it goes into effect July 1.
Based upon the above facts you have asked the following questions:
QUESTIONS:
Section 1:
1. How is a determination made of the number of signatures required on a petition, particularly where supervisors were elected automatically as provided by SDCL 12-16-1.1?
2. What certification is needed to make this determination legally proper?
Section 2:
1. Does this section require the submission of the proposed revision to the electorate (as provided by Section 1), or does it require the submission of the entire district standard which has already been adopted by the supervisors?
2. If the entire district standard is to be voted on, and it is rejected by the electorate, what is the position of the conservation district? Must it proceed to again adopt conservation standards under SDCL 38-8A?
3. Is the required election to be held at the next general election, or is a special election required?
4. Is the petition to be delivered to the county auditor as provided by 7- 18A-11?
5. Who is responsible for conducting the required election, particularly in light of the provisions of Section 3?
6. Who is responsible for the costs of the election? If it is the conservation district, and it has no funds, who is then responsible?
Section 3:
1. Chapter 7-18A is written for county ordinances; what is the process for a determination of practicable applicability and who makes the determination?
2. How would the supervisors 'establish' procedures as provided; would this require formal rule-making procedures?
IN RE SECTION 1, QUESTION NO. 1:
Section 1 of the Act amends SDCL 38-8A-12 to read as follows:
Revision of the conservation standards may be proposed by a petition signed by a number of voters equal to ten percent of the voters in a district who voted in the last election for the district supervisor.
By SDCL 38-8-37, the State Conservation Commission is to promulgate regulations concerning the elections for district supervisors; the Division of Conservation is to supervise the conduct of the election, to determine the eligibility of the voters in the election, and to publish the results thereof. Therefore, the Division of Conservation is the body that must determine and verify what number of voters voted in the last election for the district supervisors; as is required by Chapter 269, 1980 Session Laws, ten percent of this is the number of voters required to be on a petition proposing a revision of the conservation standards.
If the supervisors were elected automatically as provided by SDCL 12-16-1.1 , the Division will have to certify that this was the case. Based on the fact that SDCL 38-8-89 requires that the nomination of an individual for the position of district supervisor be accomplished by a petition signed by twenty-five or more qualified voters in the district, I think it is reasonable for the Division to require ten percent of the number of voters who signed the nominating petition for the supervisor, to be the number of signatures required on a petition proposing revision of conservation standards.
IN RE SECTION 1, QUESTION NO. 2:
Based on the fact that the Division of Conservation supervises the conduct of the election and makes the determination of the eligibility of voters therein (SDCL 38-8-37), the Division itself should certify what number of signatures are required on a petition to revise the conservation standards of a district.
IN RE SECTION 2, QUESTION NO. 1:
I would refer you to line 2 of Section 2 of the Act, which states as follows:
The filing of a petition shall require the submission of the named conservation district standards to an election of the qualified voters of the district.
The use of the words 'named conservation district standards' implies that the standards which are presently adopted and in effect in a conservation district are the standards which are required to be submitted to an election.
IN RE SECTION 2, QUESTION NO. 2:
I would refer you to line 3 of Section 2 of the Act.
However, if the supervisors approve the proposed revision before the election, the election shall not proceed.
This language implies that a specific revision of the standards is to be proposed by the petition. Assuming that the election results in a rejection of the standards presently in effect (line 2 of Section 2 of the Act), the revision proposed by the petition becomes the district's starting point in repromulgating district standards. This process is a duty of the district by SDCL 38-8A-6, and all the requirements of law for the promulgation of the standards (such as the public hearings required by SDCL 38-8A-8) must be followed.
IN RE SECTION 2, QUESTION NO. 3:
As no specific provisions are made for a special election in this Act, the election on the standards is to be held at the next general election.
IN RE SECTION 2, QUESTION NO. 4:
You have asked whether the petition is to be delivered to the county auditor as provided by SDCL 7-18A-11. Based on SDCL 38‑8-37, which mandates that the Division of Conservation conduct the supervisor's election and generally perform the duties of the auditor in a county election, it seems more appropriate that the petition be delivered to the Division so that the Division may certify its legality and the district supervisors may then conduct the election on the petition, following the procedures provided in SDCL 7-18A as closely as possible (which is required by Section 3 of the Act).
IN RE SECTION 2, QUESTION NO. 5:
Section 3 of the Act requires that any election under the provisions of this Act generally follow the procedures provided in SDCL 7-18A. Chapter 7- 18A deals with county elections, and anticipates that the Board of County Commissioners conduct the required election. However, in light of the second sentence in Section 3, 'Wherever those procedures are not applicable, the district supervisors shall establish procedures for voting as closely to the procedures in Chapter 7-18 as practicable,' it would seem that the district supervisor would be the appropriate body to conduct the required election.
IN RE SECTION 2, QUESTION NO. 6:
The conservation district, as the entity conducting the election, is responsible for the cost of the election. Such costs must be put in the district's budget which by SDCL 38-8-49.1 is submitted to the county:
Funds for the operation and maintenance of the district shall be drawn from the general fund of the county or the counties comprising the district; provided, however, that if the general fund of any such county is insufficient to meet the approved budget, a levy of not to exceed one mill may be made on the assessed valuation of such county in addition to all other taxes allowed by law to be levied on such property. . . .
In effect this means that the county is responsible for the election costs, as the election is required by law to be held, and is not an item of the budget which the county may determine is not justified, and remove from the district's budget (SDCL 38-8-49.1).
IN RE SECTION 3, QUESTION NO. 1:
I assume you are referring to the second section of Section 3 of the bill which states as follows:
Wherever these procedures are not applicable, the district supervisor shall establish procedures for voting as closely to the procedures in Chapter 7-18A as practicable.
Obviously, the district supervisors are the body responsible for determining when the procedures outlined in SDCL 7-18A are not practicable or applicable. Upon this determination, the district supervisors must establish voting procedures which do follow along the lines laid out in Chapter 7-18A.
IN RE SECTION 3, QUESTION NO. 2:
A conservation district is not authorized to promulgate rules and regulations. Therefore, no formal rule-making procedures, as required by SDCL 1-26, are required when the district establishes voting procedures. However, the procedures that the supervisors establish must follow those outlined in SDCL 7-18A. Thus the supervisors actually do not have much discretion insofar as what election procedures they establish for an election on conservation district standards.
Respectfully submitted,
Mark V. Meierhenry
Attorney General
