Can South Dakota county officials use county funds to cover their travel, food, and lodging while lobbying the Legislature on county issues?
Plain-English summary
A county auditor (Mr. Groff) asked the AG whether county commissioners, sheriffs, auditors, and other county officials could be reimbursed for personal expenses they incurred while lobbying state legislators in Pierre on bills affecting county government. The question came up because a 1937-1938 AG opinion had concluded there was no statutory authority for such reimbursement, and the law had clearly evolved since then.
AG Roger Tellinghuisen issued a comprehensive response that overruled the 1937-1938 opinion and reframed the analysis around the modernized SDCL Chapter 7-7 provisions.
Question 1: Can county officials be reimbursed for lobbying expenses?
The AG started from the basic principle that counties have only the powers expressly conferred by statute or reasonably implied from express grants (Pearson v. Johnson, 1931). Lobbying isn't expressly identified as a county official duty in SD statutes, but the AG concluded the statutes reasonably imply that providing legislative testimony, information, and instruction on county matters falls within official duties.
SDCL 7-7-3 authorizes per diem or monthly salary for county commissioners plus mileage for official-duty travel. SDCL 7-7-4 specifies that travel to meetings in SD "for the purposes of instructing or exchange of information pertaining to county officers and government" is mileage in the discharge of official duties. The AG reasoned that the Legislature itself is "a democratic forum" that "requires instruction and the exchange of information," and that county officials testifying on county matters are discharging official duties. He borrowed reasoning from Stanson v. Mott (Cal. 1976): "public agency lobbying, within the limits authorized by statute, in no way undermines or distorts the legislative process."
SDCL 7-7-25 expressly authorizes county commissioners, sheriffs, auditors, treasurers, and other officials to attend "educational conferences, meetings, and conventions" pertaining to the "betterment and advancement of county government," with prior commissioner approval. SDCL 7-7-26 authorizes reimbursement for the actual and necessary expenses of attending. The AG read legislative meetings on county-related topics as falling within this language.
Net result: county officials may be reimbursed, subject to prior commissioner authorization. The 1937-1938 AG opinion to the contrary was overruled because the statutes had been modernized in the interim.
Question 2: May the county budget pay for lobbying directly or indirectly?
Directly, no. There is no statutory authority for a county to hire a private lobbying firm for county purposes.
Indirectly, yes. SDCL 7-7-28 authorizes counties to belong to an association of county commissioners "for the purpose of securing concerted action among the counties in behalf of such matters, measures and county affairs as the association shall deem to be beneficial." Annual dues paid to the association are an authorized county expenditure. The association may then use those funds for collective lobbying. That's how SD counties get their collective legislative voice into the Capitol.
Question 3: Does SDCL 7-7-4 limit mileage reimbursement to official duties, and is attending educational conferences considered official duty?
Yes to both. Mileage reimbursement is for official-duty travel. Attendance at SDCL 7-7-25 educational conferences, meetings, and conventions (including legislative meetings on county matters) qualifies as official duty for mileage purposes.
Currency note
This opinion was issued in the late 1980s by AG Tellinghuisen. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. South Dakota's county expense reimbursement statutes in SDCL Chapter 7-7 have been amended since this opinion. Modern SD lobbying disclosure laws (under SDCL Title 2) may also impose registration and reporting requirements on county officials engaged in significant lobbying activity. Before relying on this opinion for current reimbursement decisions, check the current SDCL provisions and applicable lobbying disclosure requirements.
What the opinion meant at the time
For SD county officials in the late 1980s, the opinion settled a long-running question. The 1937-1938 AG opinion that flatly denied lobbying expense reimbursement was no longer good law. Officials who traveled to Pierre to testify on county issues could be reimbursed for their actual and necessary expenses, provided the county commissioners approved.
For county commissions writing expense policies, the opinion provided structure: require prior authorization, document the official-duty connection, reimburse actual and necessary expenses only. Personal political activity unrelated to county business remained outside the reimbursement framework.
For state legislators, the opinion confirmed the legitimacy of county-official testimony at hearings. County representatives appearing in committee were not engaged in some questionable side activity; they were performing recognized official functions on behalf of their counties.
For the county commissioners' association, the opinion provided a clear statutory anchor for member dues to be used for collective lobbying. Counties paying dues knew the dues were a legitimate expenditure.
Common questions
Q: Does this opinion mean any travel by a county official to Pierre is reimbursable?
A: No. The opinion is specifically about travel and expenses tied to legislative testimony, instruction, or exchange of information on matters affecting county government. Personal trips or political activity unrelated to county business is not reimbursable.
Q: Can a county hire a private lobbyist?
A: The opinion says no, not directly. The indirect path is paying annual dues to the county commissioners' association, which collectively can engage in lobbying activities.
Q: What's "actual and necessary expenses"?
A: The phrase appears in SDCL 7-7-26. It generally means real out-of-pocket costs for travel, lodging, meals, and registration fees that are reasonable for the official-duty activity. Lavish or excessive expenses wouldn't qualify; ordinary government rates would.
Q: Does the SDCL 7-7-25 list of officials include every county officer?
A: It specifically names county commissioners, county highway superintendents, county auditors, county treasurers, registers of deeds, state's attorneys, sheriffs, county assessing officers, and county coroners. Other county officials not on the list may have different authority bases.
Q: Why did the 1937-1938 opinion say no?
A: The 1937-1938 opinion was based on §§ 5876 and 5878 of the 1929 Compiled Laws. Those provisions were narrower than the modern SDCL Chapter 7-7. The expanded language in the modern statutes is what supports the current opinion's conclusion.
Q: Does this opinion still apply today?
A: The general framework probably does, since the chapter 7-7 structure has been stable. But specific amendments may have refined the rules, and modern lobbying disclosure laws under SDCL Title 2 may add reporting requirements not addressed in this 1980s opinion. Check current law before relying.
Q: Can a sheriff or auditor be reimbursed under this rule, or only commissioners?
A: SDCL 7-7-25 lists multiple officials beyond commissioners. The AG's analysis treats them all similarly: attendance at meetings pertaining to the betterment and advancement of county government is official duty, with prior commissioner authorization required.
Background and statutory framework
South Dakota counties are creatures of state law with limited powers. The constitutional and statutory framework determines what counties can do with public funds. Lobbying-expense reimbursement is one of many practical questions that the statutory framework has had to grow into over time.
The early 20th century AG opinion (1937-1938) reflected a narrower view of county powers and a more restrictive reading of expense reimbursement. The modernized SDCL Chapter 7-7 expanded both the explicit and implied authority of county officials, including travel for educational conferences and meetings on county-related topics.
The 1980s opinion's overruling of the 1937-1938 opinion is significant in itself. AG opinions are typically followed unless and until a later opinion or court decision changes the analysis. The Tellinghuisen opinion is a clean example of an AG using a comprehensive expense-reimbursement question to update a long-standing but outdated prior opinion.
The opinion's reliance on Stanson v. Mott (Cal. 1976) is also notable. Stanson is a foundational California decision on the limits of public-agency political activity. The SD AG borrowed its framing: public-agency lobbying within statutory limits is part of the legislative process, not a corruption of it.
Citations and references
Statutes:
- SDCL Chapter 7-7 (county officer compensation and reimbursement)
- SDCL 7-7-3, 7-7-4, 7-7-5 (county commissioner allowances)
- SDCL 7-7-25, 7-7-26 (attendance at conferences; reimbursement)
- SDCL 7-7-28 (county commissioners association dues)
Cases:
- Pearson v. Johnson, 59 S.D. 163, 238 N.W. 644 (1931)
- Stanson v. Mott, 551 P.2d 1 (Cal. 1976)
Prior AG opinions overruled:
- Attorney General's Report (1937-1938, p. 538)
Source
Original opinion text
Reimbursement of lobbying expenses by county officials
Dear Mr. Groff:
You have requested an Official Opinion from this office regarding the following factual situation:
FACTS:
A county official, such as a commissioner, sheriff, auditor, etc. does lobbying in Pierre regarding legislative bills that may affect county government. As a result, the county official has incurred personal expenses for food, travel, and lodging.
Based on the foregoing facts, you have asked the following questions:
QUESTIONS:
-
Whether county officials may be reimbursed for expenses associated with lobbying?
-
Whether the county commissioners may expend any part of the budget for lobbying, either directly or indirectly?
-
Whether SDCL 7-7-4 explicitly limits reimbursement to instances where travel is for the discharge of official duties; and if so, is attendance at educational conferences, meetings, and conventions, as contemplated in SDCL 7-7-25, considered as the discharge of official duties for which mileage is reimbursable?
IN RE QUESTION NO. 1:
A county is vested with only such powers as are expressly conferred by statute, or which may be reasonably implied from the powers expressly granted. Pearson v. Johnson, 59 S.D. 163, 238 N.W. 644 (1931).
My review of the South Dakota statutes has revealed no express provision which identifies "lobbying" as an official duty of county officials. In my opinion, however, the statutes reasonably imply that "lobbying", in the form of providing legislative committees with instruction, information, or testimony pertaining to the betterment and advancement of county government, is among the official duties of county officials. Thus, any actual and necessary expenses they incur may be reimbursed provided the county commissioners have given their prior authorization and approval.
SDCL 7-7-3 states that county commissioners may receive allowances either in per diem or monthly salary (in accordance with the limitations prescribed in § 7-7-5), but in either instance may, in addition, receive mileage for the distances actually traveled when engaged in their official duties.
For example, SDCL 7-7-4 provides:
The county commissioners shall be paid traveling expenses for each mile traveled in the discharge of their official duties of not more than the state rate. For the purpose of this section, traveling expense incurred by county commissioners to attend meetings in the state of South Dakota, called for the purposes of instructing or exchange of information pertaining to county officers and government, are miles traveled in the discharge of their official duties. (Emphasis added.)
The intent behind SDCL §§ 7-7-3 and 7-7-4 is obviously to enable county commissioners to attend those meetings that touch upon their county's concerns. Thus, if one is in the discharge of his official duties while traveling to meetings pertaining to county officers and government, the reasonable implication is that the person is also discharging official duties while attending the meeting. As such, county commissioners may be reimbursed for instructing or exchanging information at meetings of the Legislature provided these are "meetings" within the meaning of the statute. I conclude that they are.
As a democratic forum, the Legislature requires instruction and the exchange of information to evaluate the merits of its proposed enactments. Since counties are creatures of law, among the proposed enactments necessarily considered by the Legislature are matters "pertaining to county officers and government." Consequently, my interpretation is that legislative meetings are most pertinent, and the Legislature most certainly intended for county commissioners to attend them as part of their official duties. As stated in Stanson v. Mott, 551 P.2d 1, 9 (Cal. 1976):
(O)ne of the primary functions of elected and appointed officials is, of course, to devise legislative proposals to attempt to implement the current administration's policies. Since the legislative process contemplates that interested parties will attend legislative hearings to explain the potential benefits or detriments of proposed legislation, public agency lobbying, within the limits authorized by statute, in no way undermines or distorts the legislative process. (Emphasis supplied.)
While the Legislature does not meet solely to consider issues "pertaining to county officers and government," to the extent it does consider such matters, legislative meetings are logically within the scope of SDCL 7-7-4. The county commissioners' accompanying actual and necessary expenses accordingly fall within the purview of SDCL 7-7-3 and thus may be reimbursed.
This construction is reinforced by the even broader statutory provisions in SDCL 7-7-25. It provides that:
County commissioners, county highway superintendents, county auditors, county treasurers, registers of deeds, state's attorneys, sheriffs, county assessing officers and county coroners are hereby authorized to attend educational conferences, meetings, and conventions held and conducted within or without the state of South Dakota pertaining to the betterment and advancement of county government as authorized by resolution of the board of county commissioners. (Emphasis added.)
SDCL 7-7-26 gives counties the right to reimburse the actual and necessary expenses incurred by the county officers designated in SDCL 7-7-25 who attend meetings pertaining to the betterment and advancement of county government. This, however, is subject to prior authorization and approval by the county commissioners.
By enacting SDCL 7-7-25, the Legislature has acknowledged that as public servants, these officials must not be impeded from bettering and advancing their county's interests. I am, therefore, of the opinion that these officials' attendance at meetings of state legislators addressing concerns or causes pertaining to the "betterment and advancement of county government" may be viewed as within the discharge of their official duties.
Attorney General's Report (1937-1938, p. 538) is hereby overruled because the statutes have changed. That opinion was based upon §§ 5876 and 5878 of the 1929 Compiled Laws and held that there was no statutory authority to permit reimbursement of a county commissioner's lobbying expenses, even if incurred in good faith. Ample authority now exists to support my present conclusion because modern statutes have expanded the express and implied powers of county officials.
The answer to your first question is "YES."
IN RE QUESTION NO. 2:
You next inquire more generally whether county monies may be expended either directly or indirectly for lobbying activities.
Consistent with the foregoing, and in recognition of the limitations, county funds may be used to reimburse county officials for their actual and necessary expenses incurred in furtherance of lobbying activities. Whether, however, county funds may be expended to directly finance the employment of a private individual or firm solely for county lobbying purposes is another matter. There does not appear, in my opinion, to be authority under statute for such action.
Funds may, however, be expended indirectly for such services under SDCL 7-7-28 through the contribution of annual dues to the county commissioner's association. SDCL 7-7-28 provides:
The county commissioners of any county are also authorized to join with the commissioners of other counties in formation of an association of county commissioners of this state for the purpose of securing concerted action among the counties in behalf of such matters, measures and county affairs as the association shall deem to be beneficial to and in the common interest of said counties. Such association shall have power and authority to hold meetings for the discussion and consideration of matters as affect the welfare of the counties.
The board of county commissioners is hereby authorized and empowered to annually appropriate funds for the payment of reasonable annual dues in said association.
To the extent that dues paid to the county commissioners association are used to fund lobbying efforts on the part of the association they are expended by the counties, albeit indirectly, for lobbying expenses.
IN RE QUESTION NO. 3:
Since reimbursement for expenses incurred by county officials ultimately finds its source in tax revenue, it is my opinion that miles traveled to further a personal end is not a proper charge against the county. Thus, I conclude that SDCL 7-7-4 explicitly limits mileage reimbursement to instances where travel is for the discharge of official duties.
Additionally, since miles traveled to attend SDCL 7-7-4 meetings are in the discharge of official duties, it is reasonable to conclude that attendance at SDCL 7-7-25 educational conferences, meetings, and conventions (including legislative meetings) is in the discharge of official duties. Therefore, I conclude that mileage expenses incurred as a result thereof are within the ambit of the actual and necessary expenses which may be reimbursed pursuant to SDCL 7-7-26.
The answer to your third question is "YES."
Respectfully submitted,
Roger A. Tellinghuisen
Attorney General