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CHAPTER 4-5

CUSTODY AND INVESTMENT OF STATE FUNDS

4-5-1      State treasurer not to profit from use of funds--Felony--Civil liability.
4-5-2      Incidental funds established for state institutions--Initial warrant.
4-5-3      Purposes for which institution incidental funds may be used.
4-5-4      Accounting for disbursements and reimbursement of institution incidental funds.
4-5-4.1      Limitation of warrants on institutions' funds--Diversion of other funds prohibited--Proration of income.
4-5-4.2      Repealed.
4-5-5      Investment of political subdivision funds--Funds subject to provisions.
4-5-6      Investment in securities of or guaranteed by United States, repurchase agreements, or shares of registered investment companies.
4-5-6.1      Investment of public funds not needed for current operating expenses--Conditions.
4-5-6.2      Investment in direct obligations of county, municipality, or school district or in bonds issued by state authority.
4-5-7      Superseded.
4-5-8      Investment policies for local funds determined by governing board.
4-5-9      Custody or deposit of investments--Exception--Credit of interest earned.
4-5-10      Application for redemption of securities.
4-5-11      Supplemental authority for investment of public funds.
4-5-12      State Investment Council continued.
4-5-12.1      Regulations and reports provided to state treasurer.
4-5-13      Appointment and terms of investment council members.
4-5-14      Qualifications of council members--Restrictions on business and political activities.
4-5-14.1      Exceptions to § 4-5-14.
4-5-15      Repealed.
4-5-16      Removal of council member from office--Filling of vacancies.
4-5-17      Election of chairman.
4-5-18      Division of investment continued--Immediate supervision.
4-5-18.1      Repealed.
4-5-19      Appointment of state investment officer--Removal--Qualifications.
4-5-20      Investment officer to devote full time--Salary.
4-5-21      State employees' blanket bond coverage--Premium.
4-5-22      Annual budget for division--Appointment of employees.
4-5-23      Public funds to be invested by investment officer--Functions transferred--Agreements with risk-sharing entities.
4-5-24      Omitted.
4-5-25      Monthly reports to investment officer of state transactions.
4-5-26      Classes of investments approved.
4-5-27      Prudent-man standard required in investments.
4-5-28      Policy regulations and restrictions formulated by council.
4-5-29      Investment officer authorized to make transactions--Duty to protect state interests.
4-5-29.1      Health care trust fund--Investment officer to calculate amount eligible for distribution--Transfer to state general fund.
4-5-29.2      Education enhancement trust fund--Calculation of amount eligible for distribution--Transfer to general fund--Postsecondary scholarship grant programs.
4-5-30      Pooling of cash accounts--Certification by Appropriations Committee--Prorating of income--Transfer of money to investment council expense account.
4-5-30.1      Repealed.


4-5-31      Physical custody of securities purchased--Deposit with fiscal agent.
4-5-32      Monthly report to investment council--Contents--Public inspection.
4-5-33      Meetings of investment council--Access to records--Inspection and review.
4-5-34      Proceedings to collect principal or interest on investments--Refunding of securities held.
4-5-35      Post-audit of investment transactions--Annual report of auditor-general.
4-5-36      Reports to Legislature by investment council.
4-5-37      Conflicts with other laws.
4-5-38      Severability of provisions.
4-5-39      Short title.
4-5-40      Agreement to purchase general obligation funding bonds--Certification and approval required--Bonds to bear interest, mature, etc.
4-5-41      School district eligibility--Determination and certification.
4-5-42      Prudent investment defined--Liability.
4-5-43      Obligation to purchase--Enforceability.
4-5-44      Cost of participation.
4-5-45, 4-5-46. Repealed.
4-5-47      Investment of trust fund containing proceeds from sale of state cement enterprises.
4-5-48      Definition of terms related to investments in companies liable under Iran Sanctions Act.
4-5-49      Identification of holdings in scrutinized companies.
4-5-50      List of scrutinized companies.
4-5-51      Updating scrutinized companies list.
4-5-52      Procedures with respect to companies on scrutinized companies list.
4-5-53      Divestiture of securities in companies with scrutinized business operations.
4-5-54      Acquisition of securities in companies with scrutinized business operations prohibited.
4-5-55      Exemption from divestiture requirements.
4-5-56      Inapplicability to certain investments.
4-5-57      Indirect holdings in actively managed investment funds.
4-5-58      Report to Legislative Research Council Executive Board.
4-5-59      Circumstances under which §§ 4-5-48 to 4-5-60, inclusive, become inoperative.
4-5-60      Construction with other state law.


     4-5-1.   State treasurer not to profit from use of funds--Felony--Civil liability. The making of profit, directly or indirectly, by the state treasurer, out of any money in the state treasury belonging to the state, with the custody of which the state treasurer is charged, by loaning or otherwise using it, or the removal by the state treasurer, or by his consent, of such money or any part thereof out of the vault or safe of the treasurer's department, or out of any legal depository of such money, except for the payment of the sums authorized by law to be paid, for the purpose of depositing the same, under the provisions of chapter 4-6, in banks which shall have qualified as depositories, is a Class 6 felony, and the treasurer shall be liable upon his official bond for all profits realized from such unlawful use of such funds.

Source: SL 1909, ch 229, § 10; SL 1911, ch 234, § 10; RC 1919, § 6881; SDC 1939, § 55.9917; SL 1980, ch 24, § 55.


     4-5-2.   Incidental funds established for state institutions--Initial warrant. A permanent incidental fund is hereby established at each of the institutions under the control of the State Board of Regents and of the executive branch. To provide the money for such fund, the state auditor may issue and deliver a warrant not in excess of five thousand dollars to the proper officer of each of the institutions, drawn on the local and endowment fund thereof, upon presentation of a properly executed voucher therefor.

Source: SL 1953, ch 315; SL 1955, ch 257; SDC Supp 1960, § 55.2205-1; SL 1965, ch 242, § 1; SL 1989, ch 20, § 47.


     4-5-3.   Purposes for which institution incidental funds may be used. Such permanent incidental fund shall be kept and used by the proper officer of the respective institutions, for the advanced payment of freight, express, periodicals, books, postage, gate money, all United States postal supplies and refund of tuition and student fees, utility bills, farm produce purchased on the open market, compensation and wages of emergency or temporary help in any amount, and such other minor bills and incidental expenses which are not in excess of fifty dollars each as shall require immediate payment, pending the issuance of the state auditor's warrant upon the state treasurer therefor, and for no other purpose whatsoever.

Source: SL 1953, ch 315; SL 1955, ch 257; SDC Supp 1960, § 55.2205-1; SL 1965, ch 242, § 1; SL 1977, ch 38; SL 1980, ch 37.


     4-5-4.   Accounting for disbursements and reimbursement of institution incidental funds. In each case, where such a payment is made, the amount thereof shall be returned to said permanent incidental fund immediately upon receipt of the state auditor's warrant drawn on the proper fund or appropriation covering the bill for which said payment was advanced and for that purpose a detailed account of the expenses so paid shall, at regular intervals, be presented with verified vouchers, itemized and supported by receipted bills, or other information as may be required by the state auditor and auditor-general as evidence of payment, which shall be subject to audit and approval as other state claim vouchers. No payments shall be made in advance of the proper presentation of claim vouchers to the state auditor and the issuance of a state warrant on the state treasury by any of the institutions covered by §§ 4-5-2 to 4-5-4, inclusive, except as authorized herein.

Source: SL 1953, ch 315; SL 1955, ch 257; SDC Supp 1960, § 55.2205-1; SL 1965, ch 242, § 1.


     4-5-4.1.   Limitation of warrants on institutions' funds--Diversion of other funds prohibited--Proration of income. No warrants shall be drawn in excess of the funds made available in the institutions' funds by the Board of Regents and at no time shall any money from other funds be diverted to the use of the institutions' funds. The state investment officer shall prorate all income to the institutions as required by § 4-5-30.

Source: SL 1977, ch 37, § 1; SL 1985, ch 33, § 34.


     4-5-4.2.   Repealed by SL 1985, ch 33, § 35.


     4-5-5.   Investment of political subdivision funds--Funds subject to provisions. "Public funds" in §§ 4-5-6 to 4-5-11, inclusive, shall include all general, special, and other funds, regardless of source or purpose, that may now or hereafter be owned, held, or administered by any political subdivision of this state, including counties, municipalities, townships, and school districts, or by any officer, commission, board, bureau, or agency of the political subdivision.

Source: SL 1945, ch 359, § 1; SDC Supp 1960, § 48.0507; SL 1961, ch 258, § 1; SL 1967, ch 237, § 1.


     4-5-6.   Investment in securities of or guaranteed by United States, repurchase agreements, or shares of registered investment companies. Any public funds which will not be needed for current operating expenses may be invested in: (a) securities of the United States and securities guaranteed by the United States government either directly or indirectly including, without limitation, United States treasury bills, notes, bonds, and other obligations issued or directly or indirectly guaranteed by the United States government, or otherwise directly or indirectly backed by the full faith and credit of the United States government; provided that, for other than permanent, trust, retirement, building, and depreciation reserve funds, such securities shall either mature within eighteen months from the date of purchase or be redeemable at the option of the holder within eighteen months from the date of purchase; or (b) repurchase agreements fully collateralized by securities described in (a) and meeting the requirements of § 4-5-9, if the repurchase agreements are entered into only with those primary reporting dealers that report to the Federal Reserve Bank of New York and with the one hundred largest United States commercial banks, as measured by domestic deposits; or (c) in shares of an open-end, no-load fund administered by an investment company registered under the Federal Investment Company Act of 1940, whose shares are registered under the Federal Securities Act of 1933 and whose only investments are in securities described in (a) and repurchase agreements described in (b).

Source: SL 1945, ch 359, § 1; SDC Supp 1960, § 48.0507; SL 1961, ch 258, § 1; SL 1967, ch 237, § 1; SL 1988, ch 44, § 1; SL 1995, ch 27.


     4-5-6.1.   Investment of public funds not needed for current operating expenses--Conditions. In lieu of or in addition to other statutory authorization for the investment of public funds, any public funds that are not needed for current operating expenses may be invested in accordance with the following conditions:
             (1)      The public funds shall initially be placed by the public funds depositor in a bank located in this state which offers Federal Deposit Insurance Corporation insurance on its deposits;
             (2)      The selected bank shall arrange for the deposit of the public funds in one or more federally insured financial institutions wherever located in the United States, for the account of the public funds depositor;
             (3)      On the same date that the public funds are deposited pursuant to subdivision (2) of this section, the selected bank shall receive an amount of deposits from customers of other federally insured financial institutions equal to the amount of the public funds initially placed by the public funds depositor;
             (4)      Each such deposit shall be insured by the Federal Deposit Insurance Corporation;
             (5)      The selected bank shall act as custodian for the public funds depositor with respect to the deposits placed in the depositor's account.

Source: SL 2004, ch 61, § 1; SL 2012, ch 31, § 1.


     4-5-6.2.   Investment in direct obligations of county, municipality, or school district or in bonds issued by state authority. In addition to the investments permitted by § 4-5-6, any public funds which are not needed for current operating expenses may be invested in:
             (1)      Direct obligations of any county, municipality, or school district in the state; and
             (2)      Bonds issued by the South Dakota Housing Development Authority, the South Dakota Health and Educational Facilities Authority, or the South Dakota Building Authority.
     The investments shall be registered in the name of the political subdivision or authority or held under a custodial agreement at a bank. The investments shall be rated at the time of purchase within the two highest general classifications established by a rating service of nationally recognized expertise in rating bonds of states and their political subdivisions. Other than permanent, trust, retirement, building, and depreciation reserve funds, such securities as provided in subdivisions (1) and (2) shall mature with eighteen months from the date of purchase or be redeemable at par at the option of the holder within eighteen months from the date of purchase.
     Moneys in any bond redemption fund may be invested only in the types of investments listed in § 4-5-6. The investments shall be due and payable on or before the date when the bonds for the payment of which the bond redemption fund was created become due and payable, except bonds of the United States redeemable at par.
     No restriction in this section limits the investment authority otherwise granted under the laws of this state.

Source: SL 2011, ch 26, § 1; SL 2012, ch 32, § 1.


     4-5-7.   Superseded.


     4-5-8.   Investment policies for local funds determined by governing board. Investments of public funds as defined in § 4-5-5 shall be made only after the adoption of a proper resolution by the governing board of such county, municipality, township, or school district. Such resolution shall state the investment policies to be followed by the treasurer thereof.

Source: SL 1945, ch 359, § 2; SDC Supp 1960, § 48.0507; SL 1961, ch 258, § 1; SL 1967, ch 237, § 1; SL 1972, ch 25.


     4-5-9.   Custody or deposit of investments--Exception--Credit of interest earned. Except for investments authorized by subdivision 4-5-6(c), all investments made pursuant to §§ 4-5-5, 4-5-6, 4-5-8, 4-5-23, and 4-5-28 shall be in the physical custody of the political subdivision or may be deposited in a safekeeping account with any bank or trust company designated by the political subdivision as its fiscal agent. The interest earned shall be credited to the respective fund or the general fund.

Source: SL 1945, ch 359, § 3; SDC Supp 1960, § 48.0507; SL 1961, ch 258, § 1; SL 1967, ch 237, § 1; SL 1988, ch 44, § 2.


     4-5-10.   Application for redemption of securities. The governing bodies of such counties, municipalities, townships, and school districts shall, either at the time of purchase or at any other time, direct the time and manner of making application for redemption of such securities.

Source: SL 1945, ch 359, § 2; SDC Supp 1960, § 48.0507; SL 1961, ch 258, § 1; SL 1967, ch 237, § 1.


     4-5-11.   Supplemental authority for investment of public funds. Sections 4-5-5 to 4-5-10, inclusive, are supplemental to any other laws relating to the investment, deposit, or administration of the public funds therein specified, and shall supersede the provisions thereof only to the extent that such other laws may restrict or prohibit investments in accordance with the provisions thereof.

Source: SL 1945, ch 359, § 3; SDC Supp 1960, § 48.0507; SL 1961, ch 258, § 1; SL 1967, ch 237, § 1.


     4-5-12.   State Investment Council continued. The State Investment Council is hereby continued.

Source: SL 1971, ch 27, § 1; SL 1974, ch 38, § 1.


     4-5-12.1.   Regulations and reports provided to state treasurer. For the purposes of S.D. Const., Art. IV, § 8, the State Investment Council and Division of Investment are allocated to the Office of the State Treasurer for reporting purposes only. For the purposes of this section, reporting purposes shall mean that the State Investment Council shall provide to the state treasurer a report of the investment policy regulations adopted pursuant to § 4-5-28 and the monthly report of the state investment officer submitted to it in compliance with § 4-5-32.

Source: SL 1973, ch 2, §§ 5, 17; SL 1974, ch 38, § 3.


     4-5-13.   Appointment and terms of investment council members. The State Investment Council shall consist of eight voting members. Five members of the council shall be appointed by the Executive Board of the Legislative Research Council and the executive board may appoint persons holding public office, appointive or elective, provided that no more than three members of the State Investment Council, at any one time, shall hold public office. Action shall be by majority vote. Each of the members of the State Investment Council shall be appointed for a term of five years. No more than four appointed members may be members of the same political party. In addition to those members appointed by the executive board, the state treasurer, the commissioner of school and public lands, and the executive director of the South Dakota Retirement System shall serve as ex officio voting members.

Source: SL 1971, ch 27, §§ 2, 3; SL 1976, ch 49; SL 1977, ch 35, § 2; SL 1981, ch 28, § 1; SL 1986, ch 42, § 1; SL 2016, ch 35, § 1.


     4-5-14.   Qualifications of council members--Restrictions on business and political activities. The members of the State Investment Council shall be qualified by training and experience in the field of investment or finance. During tenure as a member of the State Investment Council, no member of the council nor the firm of any member may engage in the sale of marketable or public securities to the state or to any fund thereof. Nor may any member benefit directly or indirectly from any transaction made by the state investment officer. Nor may any member hold any office, position, or employment in any political party. Except as provided in § 4-5-14.1, the council may not enter into any contract or transaction with any firm or business in which a council member serves as a principal, shareholder, trustee, director, officer, employee, agent, or independent contractor.

Source: SL 1971, ch 27, § 4; SL 2003, ch 28, § 1.


     4-5-14.1.   Exceptions to § 4-5-14. The provisions of §§ 4-5-14 and 4-5-14.1, inclusive, do not prohibit a transaction that:
             (1)      Affects the public generally, and the council member's personal interest is only affected by virtue of being a member of the general public; or
             (2)      Affects participants in the South Dakota Retirement System generally, and the council member's personal interest is only affected by virtue of being a participant in the South Dakota Retirement System; or
             (3)      Involves the acceptance of deposits under a statewide certificate of deposit program made generally available to South Dakota financial institutions or the sale of interests in the South Dakota Higher Education Savings Program authorized pursuant to chapter 13-63 even though the council member has an interest as a principal, shareholder, trustee, director, officer, employee, independent contractor, or advisor of a financial institution or firm that would accept such deposits or sell such interests, if the council member has disclosed such interest in such financial institution or firm to the council.

Source: SL 2003, ch 28, § 2.


     4-5-15.   Repealed by SL 1971, ch 23, § 2.


     4-5-16.   Removal of council member from office--Filling of vacancies. A member of the State Investment Council appointed by the Executive Board of the Legislative Research Council may be removed from office by the Executive Board of the Legislative Research Council, for cause, upon notice and opportunity to be heard at a public hearing. Any vacancy in the membership of the council occurring other than by expiration of term shall be filled in the same manner as the original appointment, but for the unexpired term only.

Source: SL 1971, ch 27, § 5; SL 1981, ch 28, § 2.


     4-5-17.   Election of chairman. The chairman and presiding officer of the State Investment Council shall be elected by majority vote of the council.

Source: SL 1971, ch 27, § 6.


     4-5-18.   Division of investment continued--Immediate supervision. The division of investment is hereby continued, to conduct the daily operations of the State Investment Council and the division shall be under the immediate supervision and direction of a person who shall be designated the "state investment officer."

Source: SL 1971, ch 27, § 8; SL 1974, ch 38, § 2.


     4-5-18.1.   Repealed by SL 1974, ch 38, § 4.


     4-5-19.   Appointment of state investment officer--Removal--Qualifications. The state investment officer shall be appointed by the State Investment Council upon a majority vote and shall serve without term, but he may be removed from office upon a majority vote of the State Investment Council. He shall be a person qualified, by training and investment experience, to direct the work of the Division of Investment.

Source: SL 1971, ch 27, §§ 9, 10; SL 1986, ch 42, § 2.


     4-5-20.   Investment officer to devote full time--Salary. The state investment officer shall devote his entire time and attention to the duties of his office, shall not be engaged in any other occupation or profession, nor shall he hold any other public office, appointive or elective. The salary of the state investment officer shall be set by the Executive Board of the Legislative Research Council.

Source: SL 1971, ch 27, § 9.


     4-5-21.   State employees' blanket bond coverage--Premium. Before the state investment officer, or other responsible employee of the Division of Investment shall enter upon his duties, he shall be included under the state employees' blanket bond, for an amount and for coverage as deemed best to protect the state's interest. The premium thereon shall not be chargeable to the officer or employee.

Source: SL 1971, ch 27, § 11.


     4-5-22.   Annual budget for division--Appointment of employees. The state investment officer shall annually prepare a budget which shall be reviewed and approved by the State Investment Council and the Executive Board of the Legislative Research Council, prior to submission to the Bureau of Finance and Management. Subject to the appropriate rules and regulations regarding state employment, the state investment officer shall appoint all employees of the Division of Investment.

Source: SL 1971, ch 27, § 12; SL 1987, ch 44, § 2.


     4-5-23.   Public funds to be invested by investment officer--Functions transferred--Agreements with risk-sharing entities. The state investment officer is responsible for the investment of the state public funds as defined in chapter 4-4. All functions, powers, and duties presently vested by law in any officer, official, employee, agency, or commission which relates to the investment of the state public funds and accounts enumerated in this section are transferred to the state investment officer. In addition, the state investment officer may enter into agreements for the investment of cash accounts, reserves, and surplus funds with public entities created for the purpose of risk sharing pursuant to chapter 1-24. These entities' investments shall be restricted as provided in § 4-5-26. The agreements shall provide for the transfer of money from the public entities investment pool to the investment council expense account as provided in § 4-5-30.

Source: SL 1971, ch 27, § 13; SL 1984, ch 30, § 2; SL 1997, ch 37, § 1; SL 1999, ch 20, § 2.


     4-5-24.   Omitted.


     4-5-25.   Monthly reports to investment officer of state transactions. It shall be the duty of the state treasurer and the state auditor to report monthly, or more often as determined by the state investment officer, to the state investment officer as to receipts, expenditures, and warrants paid, so that the state investment officer may be informed as to what moneys will be available for the purposes of §§ 4-5-12 to 4-5-39, inclusive.

Source: SL 1971, ch 27, § 22.


     4-5-26.   Classes of investments approved. Money made available for investment may be invested in the following classes of securities and investments and, except as provided by § 3-12-117, chapter 3-13, chapter 13-63, the permanent trust fund containing the net proceeds from the sale of state cement enterprises, the health care trust fund as provided in S.D. Const., Art. XII, § 5, and the education enhancement trust fund as provided in S.D. Const., Art. XII, § 6, not otherwise:
             (1)      Direct and indirect obligations of the United States government;
             (2)      Agencies and instrumentalities of the United States government;
             (3)      Direct obligations of the State of South Dakota and any of its political subdivisions;
             (4)      Obligations consisting of notes, bonds, debentures, and certificates which are direct obligations of a solvent corporation or trust existing under the laws of the United States or any state thereof, if such investments are rated in the four highest classifications established by at least two standard rating services at the time of purchase;
             (5)      Savings accounts, share accounts, certificates of deposit of banks, savings and loan associations, building and loan associations, and bankers' acceptances; or
             (6)      In addition to the investments authorized by subdivisions (1) to (5) of this section, inclusive, the investment council may also allocate a sum certain of state public funds for investment in the accounts and certificates of South Dakota banks and associations. This sum shall initially be offered to South Dakota banks and associations, and if not initially fully subscribed, the investment officer shall immediately reoffer the unsubscribed sum to other qualified public depositories defined by subdivision 4-6A-1(7).

Source: SL 1971, ch 27, § 20; SL 1977, ch 36; SL 1986, ch 43; SL 1993, ch 49; SL 2000, ch 27, § 3; SL 2001, ch 24, § 1; SL 2001, ch 25, § 2; SL 2001, ch 26, § 2; SL 2002, ch 26, §§ 2, 4; SL 2015, ch 34, § 1.


     4-5-27.   Prudent-man standard required in investments. Any investments under the provisions of §§ 4-5-12 to 4-5-39, inclusive, shall be made with the exercise of that degree of judgment and care, under circumstances then prevailing, which persons of prudence, discretion, and intelligence exercise in the management of their own affairs, not for speculation but for investment, considering the probable safety of their capital as well as the probable income to be derived.

Source: SL 1971, ch 27, § 21; SL 1985, ch 15, § 18.


     4-5-28.   Policy regulations and restrictions formulated by council. The State Investment Council shall formulate investment policy regulations pertaining to the kind or nature of investment of any of the moneys, and any restrictions upon the methods for investment, which shall govern the state investment officer.

Source: SL 1971, ch 27, § 17.


     4-5-29.   Investment officer authorized to make transactions--Duty to protect state interests. Subject to any limitations, conditions, and restrictions contained in policy making regulations approved by the State Investment Council or contained in state law or the State Constitution, the state investment officer may make purchases, sales, exchanges, and investments, for or on behalf of any of the funds referred to in § 4-5-23. The state investment officer shall see that moneys invested under the provisions of §§ 4-5-12 to 4-5-39, inclusive, are at all times handled in the best interests of the state.

Source: SL 1971, ch 27, § 15; SL 2015, ch 35, § 1.


     4-5-29.1.   Health care trust fund--Investment officer to calculate amount eligible for distribution--Transfer to state general fund. Pursuant to S.D. Const., Art. XII, § 5, the state investment officer shall determine the market value of the health care trust fund as of December 31, 2003, and each calendar year thereafter less the investment expenses transferred pursuant to § 4-5-30. The state investment officer shall calculate an amount equal to four percent of that market value, without invading principal, as eligible for distribution. For the purpose of this section, the term, principal, means the sum of all contributions to the fund. Beginning with the distribution in fiscal year 2008, the market value shall be determined by adding the market value of the trust fund at the end of the sixteen most recent calendar quarters as of December thirty-first, and dividing the sum by sixteen. Upon notice of that amount by the state investment officer, the state treasurer shall transfer the amount from the health care trust fund to the state general fund as soon as practicable after July first of the next fiscal year.

Source: SL 2002, ch 26, § 3; SL 2004, ch 62, § 1; SL 2006, ch 23, § 1.


     4-5-29.2.   Education enhancement trust fund--Calculation of amount eligible for distribution--Transfer to general fund--Postsecondary scholarship grant programs. Pursuant to S.D. Const., Art. XII, § 6, the state investment officer shall determine the market value of the education enhancement trust fund as of December 31, 2003, and each calendar year thereafter less the investment expenses transferred pursuant to § 4-5-30. The state investment officer shall calculate an amount equal to four percent of that market value, without invading principal, as eligible for distribution. For the purpose of this section, the term, principal, means the sum of all contributions to the fund. Beginning with the distribution in fiscal year 2008, the market value shall be determined by adding the market value of the trust fund at the end of the sixteen most recent calendar quarters as of December thirty-first, and dividing the sum by sixteen. Upon notice of that amount by the state investment officer, the state treasurer shall transfer the amount from the education enhancement trust fund to the state general fund as soon as practicable after July first of the next fiscal year. For fiscal year 2017, the portion of the transfer to the general fund for the postsecondary scholarship grant programs shall be $126,707.35. Beginning in fiscal year 2018, the portion of the transfer to the general fund for the postsecondary scholarship grant programs, shall be calculated by the state investment officer based on the relative share of the contributions made to the postsecondary scholarship grant fund created pursuant to § 13-55A-14 to the most recently calculated total fair value of the education enhancement fund including the contribution. The calculation shall be updated monthly to reflect any additional contributions to the education enhancement trust fund and the portion of the transfer to the general fund for the postsecondary scholarship grant programs shall be based on the average of the monthly calculation as of December thirty-first, using the months available for the first forty-eight months and then the most recent forty-eight calendar months thereafter.

Source: SL 2002, ch 26, § 4; SL 2004, ch 62, § 2, eff. Mar. 3, 2004; SL 2006, ch 23, § 2, eff. Mar. 10, 2006; SL 2013, ch 91, § 11, eff. Mar. 20, 2013; SL 2013, ch 92, § 13, eff. Mar. 12, 2013; SL 2016, ch 101, § 2, eff. Mar. 22, 2016.


     4-5-30.   Pooling of cash accounts--Certification by Appropriations Committee--Prorating of income--Transfer of money to investment council expense account. The state investment officer, utilizing the facilities of the state budgetary accounting system, shall pool cash accounts within the funds enumerated in § 4-5-23. The Appropriations Committee of the Legislature, upon recommendations from the commissioner of finance and management, shall certify those funds which are to participate in the interest income of the pooled investments. The state investment officer shall credit the gain or interest due as a result of investments made pursuant to § 4-5-29 on a pro rata basis to the participating funds in the same ratio as the average daily cash balance of each fund bears to the total average cash balance of all funds.
     If requested by the state investment officer during each fiscal year, the state treasurer shall transfer money from the South Dakota retirement fund, health care trust fund, education enhancement trust fund, the trust fund derived from the sale of state cement enterprises, the general fund portion of the pooled income account for the permanent school and other educational fund provided for in S.D. Const., Art. VIII, and any other specific fund approved by the Bureau of Finance and Management, other than the state pooled fund, to the investment council expense account in an amount not to exceed the ratio of the average assets in each fund for the previous fiscal year to the total average assets managed by the investment council, other than the state pooled fund, for the previous fiscal year multiplied by the difference between the budget of the investment council for each fiscal year and the total of the current fiscal year beginning cash balance in the investment council expense account plus two hundredths of a percent of the prior fiscal year's average assets in the state pooled fund. If requested by the state investment officer during each fiscal year, the state treasurer shall transfer money from the pooled income account to the investment council expense account in an amount not to exceed two hundredths of a percent of the prior fiscal year's average assets in the state pooled fund. The state investment officer may make multiple transfer requests during the fiscal year, with each request being proportionate among the funds, provided that the total transfers do not exceed the amounts provided by this section.

Source: SL 1971, ch 27, § 16; SL 1976, ch 50; SL 1977, ch 35, § 1; SL 1978, ch 36, § 1; SL 1986, ch 49; SL 1987, ch 44, § 1; SL 1998, ch 25, § 1; SL 2002, ch 26, § 1; SL 2015, ch 36, § 1.


     4-5-30.1.   Repealed by SL 2015, ch 37, § 1, eff. Mar. 13, 2015.


     4-5-31.   Physical custody of securities purchased--Deposit with fiscal agent. All securities purchased shall be in the physical custody of the state treasurer who may, with the approval of the State Investment Council, deposit with a fiscal agent the securities as he shall consider advisable to be held in safekeeping by said agent for collection of principal and interest.

Source: SL 1971, ch 27, § 23.


     4-5-32.   Monthly report to investment council--Contents--Public inspection. Not later than fifteen days after the close of each month, the state investment officer shall submit to the State Investment Council a report of the operations of the Division of Investments during the month. Each report shall include a detailed summary of investment, reinvestment, purchase, sale, and exchange transactions, setting forth, among other things, the investments bought, sold, and exchanged, the dates thereof, the prices paid and obtained, the names of the brokers involved, and a statement of the funds or accounts referred to herein. The reports shall be open for inspection to the public.

Source: SL 1971, ch 27, § 24.


     4-5-33.   Meetings of investment council--Access to records--Inspection and review. The State Investment Council shall meet at times as it shall deem necessary to carry out the provisions of §§ 4-5-12 to 4-5-39, inclusive, but at least quarterly during the year, to consult with the state investment officer with respect to the work of the Division of Investment. It shall have access to all files and records of the division and may require any officer or employee therein to provide information as it may deem necessary in the performance of its functions. The State Investment Council shall inspect and review the respective funds and accounts administered through the division.

Source: SL 1971, ch 27, § 18.


     4-5-34.   Proceedings to collect principal or interest on investments--Refunding of securities held. In the event of default in the payment of principal of, or interest on, any investment made, the investment council is authorized to institute the proper proceedings to collect the matured principal or interest and may accept for exchange purposes refunding bonds or other evidences of indebtedness at interest rates to be agreed upon with the obligor.

Source: SL 1971, ch 27, § 19.


     4-5-35.   Post-audit of investment transactions--Annual report of auditor-general. The state auditor-general shall be responsible for conducting a continuous post-audit of the investment transactions of the state, and shall submit annually a special report on his findings to the State Investment Council and to the appropriate legislative committee.

Source: SL 1971, ch 27, § 25.


     4-5-36.   Reports to Legislature by investment council. On or before February first of each year, and at other times as it may deem in the public interest, the State Investment Council shall report to the Legislature with respect to its review of the work of the Division of Investment.

Source: SL 1971, ch 27, § 26.


     4-5-37.   Conflicts with other laws. To the extent that the provisions of §§ 4-5-12 to 4-5-39, inclusive, are inconsistent with the provisions of any other law, the provisions of said sections shall be controlling.

Source: SL 1971, ch 27, § 27.


     4-5-38.   Severability of provisions. If any part of §§ 4-5-12 to 4-5-39, inclusive, is invalid, all valid parts that are severable from the invalid part remain in effect. If a part of said sections is invalid in one or more of its applications, the part remains in effect in all valid applications that are severable from the invalid applications.

Source: SL 1971, ch 27, § 28.


     4-5-39.   Short title. Sections 4-5-12 to 4-5-39, inclusive, may be cited as the "Investment of State Funds Law."

Source: SL 1971, ch 27, § 29.


     4-5-40.   Agreement to purchase general obligation funding bonds--Certification and approval required--Bonds to bear interest, mature, etc.. Notwithstanding the provisions of §§ 4-5-23, 4-5-29, and 4-5-37, upon receipt of the certification of the Health and Educational Facilities Authority as described in § 4-5-41 and receipt of evidence that the Governor has not disapproved of the investment as contemplated by Article VIII, § 12 of the Constitution, the State Investment Council, acting by and through the state investment officer, shall enter into a contingent purchase agreement, bond purchase agreement, or similar instrument or arrangement pursuant to which the State Investment Council shall be obligated to purchase, as an investment of the permanent school and other education funds of the State of South Dakota established pursuant to Article VIII, § 11 of the Constitution, general obligation funding bonds to be issued by any eligible school district participating in a tax anticipation note program established by the Health and Educational Facilities Authority under § 1-16A-75. Such bonds shall bear interest, mature, and contain such other terms and conditions as shall be approved by the Health and Educational Facilities Authority and as otherwise authorized by state law.

Source: SL 1998, ch 24, § 1.


     4-5-41.   School district eligibility--Determination and certification. A school district is an eligible school district for the purposes of §§ 4-5-40 to 4-5-44, inclusive, if the Health and Educational Facilities Authority determines and certifies to the State Investment Council and the Governor that the school district is:
             (1)      Expected to have sufficient tax and other revenues in the applicable fiscal year sufficient to pay principal and interest when due on all promissory notes issued or to be issued by the school district in connection with any program established by the Health and Educational Facilities Authority pursuant to § 1-16A-75; and
             (2)      That the principal amount of any promissory notes issued by the school district in connection with such program does not exceed the principal amount of general obligation funding bonds that the district is, as of the date of certification, authorized to issue under § 13-19-7 and Article XIII, § 4 of the Constitution.

Source: SL 1998, ch 24, § 2.


     4-5-42.   Prudent investment defined--Liability. The state investment officer and the State Investment Council is entitled to conclusively rely, without any duty or obligation for further inquiry, diligence, or investigation, upon the certification of the Health and Educational Facilities Authority as described in § 4-5-41 and written evidence that the Governor has not disapproved the investment as described in § 4-5-40. Any agreement or other arrangement entered into by the State Investment Council and state investment officer pursuant to §§ 4-5-40 to 4-5-44 shall be deemed a prudent investment in full compliance with the requirements of the Constitution and all statutes and applicable common law, including, without limitation, §§ 4-5-27 and 4-5-29. No personal liability adheres to the state investment officer or the State Investment Council by reason of the agreement or arrangement.

Source: SL 1998, ch 24, § 3.


     4-5-43.   Obligation to purchase--Enforceability. The obligation of the State Investment Council to purchase any general obligation funding bonds pursuant to any agreement or arrangement described in § 4-5-40 is not enforceable to the extent that the principal amount of such general obligation funding bonds would cause an eligible participating school district to be in violation of the limitations on indebtedness of school districts provided for in Article XIII, § 4 of the Constitution.

Source: SL 1998, ch 24, § 4.


     4-5-44.   Cost of participation. The participation of the State Investment Council and the state investment officer in the tax anticipation note program of the Health and Educational Facilities Authority established under § 1-16A-75 is hereby determined to be in the public interest and for the benefit and maintenance of the public schools and for the equal benefit of and in the best interest of the people of the state and shall be at no cost to the school districts, the Health and Educational Facilities Authority or any other participant of the program.

Source: SL 1998, ch 24, § 5.


     4-5-45, 4-5-46.   Repealed by SL 2015, ch 39, §§ 3, 4.


     4-5-47.   Investment of trust fund containing proceeds from sale of state cement enterprises. The State Investment Council as provided in § 4-5-12 is responsible for the investment of the trust fund containing the net proceeds from the sale of state cement enterprises. The investment of such funds is not restricted by the provisions of § 4-5-26, but is governed by the provisions of § 4-5-27.

Source: SL 2001, ch 25, § 3; SDCL § 5-17-42; SL 2010, ch 32, § 8.


     4-5-48.   Definition of terms related to investments in companies liable under Iran Sanctions Act. Terms used in §§ 4-5-48 to 4-5-60, inclusive, mean:
             (1)      "Active business operations," all business operations that are not inactive business operations;
             (2)      "Company," any sole proprietorship, organization, association, corporation, partnership, joint venture, limited partnership, limited liability partnership, limited liability company, or other entity or business association, including all wholly owned subsidiaries, majority-owned subsidiaries, parent companies, or affiliates of such entities or business associations, that exists for profit-making purposes;
             (3)      "Direct holdings," all publicly traded debt and equity securities of a company that are held directly by the State Investment Council or held in an account or fund in which the State Investment Council owns all shares or interests;
             (4)      "Government of Iran," the government of the Islamic Republic of Iran or its instrumentalities or political subdivisions and companies owned or controlled by the Islamic Republic of Iran;
             (5)      "Inactive business operations," the continued holding or renewal of rights to property previously operated for the purpose of generating revenues but not presently deployed for such a purpose;
             (6)      "Indirect holdings," all investments held in an account or fund, including a mutual fund, a real estate fund, a private equity fund, or a commingled fund, managed by one or more persons who are not employed by the State Investment Council, in which the public funds own shares or interests together with other investors who are not subject to §§ 4-5-48 to 4-5-60, inclusive;
             (7)      "Scrutinized company," any company engaging in scrutinized business operations;
             (8)      "Scrutinized business operations," all active business operations that are subject or liable to sanctions under Public Law 104-172, as amended, the Iran Sanctions Act of 1996, and that involve the maintenance of a company's existing assets or investments in Iran, or the deployment of new investments to Iran that meet or exceed the twenty million dollar threshold referred to in Public Law 104-172, as amended, the Iran Sanctions Act of 1996. The term does not include the retail sale of gasoline and related products;
             (9)      "Substantial action specific to Iran," adopting, publicizing, and implementing a formal plan to cease scrutinized business operations within one year and to refrain from any such new business operations.

Source: SL 2010, ch 27, § 1.


     4-5-49.   Identification of holdings in scrutinized companies. Within ninety days following July 1, 2010, the State Investment Council shall make its best efforts to identify all scrutinized companies in which it has direct holdings. These efforts shall include, as appropriate:
             (1)      Reviewing and relying, as appropriate, on publicly available information regarding companies with business operations in Iran, including information provided by nonprofit organizations, research firms, international organizations, and government entities;
             (2)      Contacting asset managers contracting with the State Investment Council who invest in companies with business operations in Iran; and
             (3)      Contacting other institutional investors that have divested from or engaged with companies with business operations in Iran.

Source: SL 2010, ch 27, § 2.


     4-5-50.   List of scrutinized companies. At the first meeting of the State Investment Council after it has completed the requirements of § 4-5-49, the State Investment Council shall assemble a list of scrutinized companies in which it has direct holdings.

Source: SL 2010, ch 27, § 3.


     4-5-51.   Updating scrutinized companies list. The State Investment Council shall update the scrutinized companies list each quarter based on continuing information.

Source: SL 2010, ch 27, § 4.


     4-5-52.   Procedures with respect to companies on scrutinized companies list. The State Investment Council shall use the following procedures with respect to companies on the scrutinized companies list:
             (1)      For each company newly identified with scrutinized business operations, the State Investment Council shall, within ninety days following its assembly of the scrutinized companies list, send a written notice informing the company of its scrutinized company status and that it may become subject to divestment by the State Investment Council. The notice shall offer the company the opportunity to clarify its scrutinized business operations and shall encourage the company to cease, within ninety days of the date of the notice, its scrutinized business operations, or to convert them to inactive business operations in order to avoid divestment by the State Investment Council; and
             (2)      If, within ninety days following the State Investment Council's first engagement with a company, that company publicly announces its commitment to substantial action specific to Iran, that company shall be removed from the scrutinized companies list and the provisions of §§ 4-5-48 to 4-5-60, inclusive, cease to apply to it unless it resumes active business operations in Iran.

Source: SL 2010, ch 27, § 5.


     4-5-53.   Divestiture of securities in companies with scrutinized business operations. If, after ninety days following the State Investment Council's first engagement with a company pursuant to § 4-5-52, the company continues to have scrutinized business operations, and only while the company continues to have scrutinized business operations, the State Investment Council shall sell, redeem, divest, or withdraw all publicly traded securities of the company, according to the following schedule:
             (1)      At least fifty percent of the holdings in the company shall be removed from the State Investment Council's assets under management by nine months after the company's initial appearance on the scrutinized companies list; and
             (2)      One hundred percent of the holdings in the company shall be removed from the State Investment Council's assets under management within fifteen months after the company's initial appearance on the scrutinized companies list.
     If a company that ceased scrutinized business operations following engagement pursuant to § 4-5-52, resumes such operations, §§ 4-5-48 to 4-5-60, inclusive, immediately applies to the company and the State Investment Council shall send a written notice to the company. The company shall also be immediately reintroduced onto the scrutinized companies list.

Source: SL 2010, ch 27, § 6.


     4-5-54.   Acquisition of securities in companies with scrutinized business operations prohibited. The State Investment Council may not acquire securities of companies on the scrutinized companies list that have scrutinized business operations, except as provided in §§ 4-5-48 to 4-5-60, inclusive.

Source: SL 2010, ch 27, § 7.


     4-5-55.   Exemption from divestiture requirements. If the federal government excludes a company from its present or any future federal sanctions relating to Iran, that company is exempt from the divestment requirements and the investment prohibitions in §§ 4-5-48 to 4-5-60, inclusive.

Source: SL 2010, ch 27, § 8.


     4-5-56.   Inapplicability to certain investments. The provisions of §§ 4-5-48 to 4-5-60, inclusive, do not apply to any of the following:
             (1)      Investments in a company that is primarily engaged in supplying goods or services intended to relieve human suffering in Iran;
             (2)      Investments in a company that is primarily engaged in promoting health, education, or journalistic, religious, or welfare activities in Iran; and
             (3)      Investments in a United States company that is authorized by the federal government to have active business operations in Iran.

Source: SL 2010, ch 27, § 9.


     4-5-57.   Indirect holdings in actively managed investment funds. The provisions of §§ 4-5-48 to 4-5-60, inclusive, do not apply to indirect holdings in actively managed investment funds. The State Investment Council shall submit letters to the managers of investment funds containing companies with scrutinized active business operations requesting the managers to consider removing such companies from the fund or to create a similar actively managed fund with indirect holdings that do not include the companies. If a manager creates a similar fund, the State Investment Council shall promptly replace all applicable investments with investments in the similar fund consistent with prudent investing standards.

Source: SL 2010, ch 27, § 10.


     4-5-58.   Report to Legislative Research Council Executive Board. By January fifteenth of each calendar year, the State Investment Council shall submit a report to the Executive Board of the Legislative Research Council. The report shall include:
             (1)      A copy of the most recent list of scrutinized companies;
             (2)      A summary of correspondence with companies engaged by the State Investment Council pursuant to § 4-5-52;
             (3)      A list of all investments sold, redeemed, divested, or withdrawn in compliance with § 4-5-53;
             (4)      A list of all prohibited investments pursuant to § 4-5-54; and
             (5)      A description of any progress made pursuant to § 4-5-57.

Source: SL 2010, ch 27, § 11.


     4-5-59.   Circumstances under which §§ 4-5-48 to 4-5-60, inclusive, become inoperative. The provisions of §§ 4-5-48 to 4-5-60, inclusive, cease to be operative if either of the following occurs:
             (1)      Iran is removed from the United States Department of State's list of countries that have been determined to repeatedly provide support for acts of international terrorism; or
             (2)      The President of the United States determines and certifies that state legislation similar to §§ 4-5-48 to 4-5-60, inclusive, interferes with the conduct of United States foreign policy.

Source: SL 2010, ch 27, § 12.


     4-5-60.   Construction with other state law. The State Investment Council is exempt from any statutory or common law obligations that conflict with actions taken in compliance with §§ 4-5-48 to 4-5-59, inclusive, including all good faith determinations regarding companies as required by §§ 4-5-48 to 4-5-59, inclusive, including any obligations regarding the choice of asset managers, investment funds, or investments for the State Investment Council's securities portfolios.

Source: SL 2010, ch 27, § 13.


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