November 25, 1980

Mr. Craig D. Grotenhouse 
146 Hudson, Box 626 
Spearfish, South Dakota 57783

Official Opinion No. 80-70

State's Attorney's Responsibility in Enforcing SDCL 13-8-3 and  -4

Dear Mr. Grotenhouse:

You have requested an official opinion from this office in regard to the following factual situation:

FACTS: 

On October 8, 1980, the Lead-Deadwood School Board met in executive session with the superintendent.  This executive session resulted in the resignation of the superintendent from any further responsibilities.  He was thereupon paid the sum of $20,000 by check.  The contract for the superintendent for the current school year was for the sum of $30,000.  I have been further advised that the superintendent was under a twelve-month contract similar to other teaching contracts.  Apparently he was in his second month of the new school year.  There have been no reasons given by the school board for the resignation of the superintendent and the payment of $20,000 appears to have been intended as severance pay.  The school board has subsequently modified the contracts of two other employees in the Lead-Deadwood school district to take over some of the responsibilities of the superintendent.  These have apparently required further expenditures in the amount of $850 per month.

Based on the above facts, you have asked the following questions:

QUESTIONS: 

1.  Does a state's attorney have a legal responsibility to initiate action under the provisions of SDCL 13-8-3 and -4, at the request of taxpayers of the county, when no audit has been performed on the school board? 

2.  If the answer to question number 1 is in the affirmative, does a state's attorney have a responsibility to seek to collect the amount of funds unlawfully paid by way of a separate civil action? 

3.  If the answer to question number 2 is in the affirmative, can a state's attorney request compensation for his fees in connection with such a civil action?

IN RE QUESTION NO. 1:

SDCL 13-18-3 provides: 

No check or warrant shall be drawn by the business manager except for indebtedness incurred prior to its issue and upon the presentation of an itemized invoice, duly verified; and the same shall be retained by the business manager and placed on file in his office.

SDCL 13-18-4 provides: 

Any person who issues, signs or authorizes the issuance of checks or warrants in excess of the legal check or warrant issuing capacity of a school district shall be guilty of a misdemeanor, and upon conviction thereof shall be fined not more than one hundred dollars, and in addition thereto shall be liable for the amount of such checks or warrants so issued.  It shall be the duty of the state's attorney of the county wherein such checks or warrants  were issued to prosecute such offenders when they are called to his attention by an audit.  It shall be the duty of anyone who audits the accounts of a school district and finds that checks or warrants have been illegally issued to present a copy of the audit to the state's attorney of the county in which the school district is located.

In answer to your first question, let me first of all state my opinion that on the facts which you have presented, there has been no clear violation of SDCL 13-18-3 or 13-8-4.

With respect to § 13-18-3, it can be argued that the $20,000 payment was  'indebtedness incurred prior to its issue' because the new agreement was in effect a modified contract for which the school district received forbearance from lawsuit, among other things, from the departing superintendent. Moreover, § 13‑18‑-3 was arguably not violated because the requirement 'of an itemized invoice, duly verified' is not generally required in South Dakota with respect to salary payments.  See Official Opinion No. 75-187.

With respect to § 13-18-4, it seems clear that at the present time the check or warrant issuing capacity of the school district has not been exceeded insofar as (1) $20,000 is less than $30,000 and (2) it is early in the year and is not probable that the school district's entire budget for salaries has been exceeded.  If, of course, the $850 a month payment to perform superintendent duties exceeds the difference between the $30,000 budgeted and the $20,000 paid  the departing superintendent plus any other salary paid the departing superintendent in this fiscal year prior to the $20,000 payment, § 13-18-3 would be violated.  However, that result can be prevented between now and its occurrence by the school district's supplementing its budget pursuant to SDCL 13-11-3.2.

IN RE QUESTIONS NO. 2 & 3:

In view of my response to Question No. 1, it is unnecessary to answer Questions No. 2 and 3.

Respectfully submitted,

Mark V. Meierhenry
Attorney General