(dissenting).
[¶ 24.] The majority opinion states that “[i]t is undisputed that at the time O’Tooles requested a refund, the Board stood in a fiduciary relationship with them.” However, the majority opinion concludes that the O’Tooles do not have a claim for breach of fiduciary duty. The majority opinion states that “[n]either Board nor the circuit court can consider a claim of breach of fiduciary duty as a basis for granting a refund if granting that refund is prohibited by statute.”
[¶ 25.] The majority opinion misses the point. The question is not whether Board had the power to grant O’Tooles’ request for a refund, but whether, under the fiduciary duty imposed by SDCL 3-12-47(33), it had a duty to provide O’Tooles with notice of the change in the benefit distribution system.
[¶ 26.] SDCL 3-12-47(33) controls and provides as follows:
“Fiduciary,” any person who exercises any discretionary authority or control over the management of the system or the management or disposition of its assets, renders investment advice for a fee or other compensation, direct or indirect, or has any authority or responsibility to do so, or has any discretionary authority or responsibility in the administration of the system[.]
[¶ 27.] This Court has stated:
A fiduciary relationship is founded on a “peculiar confidence” and trust placed by one individual in the integrity and faithfulness of another. When such relationship exists, the fiduciary has a “duty to act primarily for the benefit” of the other. “Generally, in a fiduciary relationship, the property, interest or authority of the other is placed in the charge of the fiduciary.” South Dakota law reflects “the traditional view that fiduciary duties are not inherent in normal arm’s-length business relationships, and arise only when one undertakes to act primarily for another’s benefit. The law will imply such duties only where one party to a relationship is unable to fully protect its interests and the unprotected party has placed its trust and confidence in the other.” We recognize no “invariable rule” for ascertaining a fiduciary relationship, “but it is manifest in all the decisions that there must be not only confidence of the one in the other, but there must exist a certain inequality, dependence, weakness of age, of mental strength, business intelligence, knowledge of the facts involved, or other conditions, giving to one advantage over the other.”
Ward v. Lange, 1996 SD 113, ¶ 12, 553 N.W.2d 246, 250 (citing High Plains Genetics Research, Inc. v. JK Mill-Iron Ranch, 535 N.W.2d 839, 842 (S.D.1995)) (quoting Garrett v. BankWest, Inc., 459 N.W.2d 833, 839 (S.D.1990)) (additional citations omitted) (emphasis added).
[¶ 28.] “One who stands in a confidential or fiduciary relation to the other party to a transaction must disclose material facts.” Buxcel v. First Fidelity Bank, 1999 SD 126, ¶ 14, 601 N.W.2d 593, 596-97 (citation omitted) (emphasis added). Fiduciaries also have a duty to the other party of “utmost good faith, integrity and loyalty.” See, e.g., Dinsmore v. Piper Jaffray, Inc., 1999 SD 56, ¶ 18, 593 N.W.2d 41, 46 (holding that some parties, because of their superior knowledge and training in the area, owe a fiduciary duty to the other party of “utmost good faith, integrity and loyalty”); Hurney v. Locke, 308 N.W.2d 764, 768 (S.D.1981) (same).
[¶ 29.] In this case, Board had a duty, both under SDCL 3-12-47(33) and this Court’s caselaw, to disclose material facts regarding potential changes in benefit *349portability. Board had a duty to provide O’Tooles with enough information to allow them to make an informed decision.
[¶ 30.] Board began considering the portable retirement option in April 1997. By September 1997, Board was seriously deliberating the feasibility of the option. O’Tooles contacted SDRS in October 1997 and were informed they could receive a refund of only their contributions to the fund. They were not informed of any potential changes. O’Tooles received refund checks in November 1997, only nine days before Board voted to change the refund process.
[¶ 31.] Board admits that it was not SDRS policy to inform members of potential retirement benefit changes until after a Board vote. This Court’s caselaw, however, mandates disclosure of material facts. Buxcel, 1999 SD 126 at ¶ 14, 601 N.W.2d at 596-97. Under these circumstances, Board had superior knowledge of the facts. Had O’Tooles known of the proposed changes in the system, they would not have withdrawn their contributions from the system at that time. But because Board failed to disclose material facts about the potential change in portability, O’Tooles never had any option. Board failed in its “duty to act primarily for the benefit” of O’Tooles and other SDRS members.
[¶ 32.] Therefore, I would overturn the decision of the Board and trial court.
[¶ 33.] GORS, Acting Justice, joins this dissent.