The 1973 Personnel Policy Board, created by Senate Bill 71, has authority to make 'non-conflicting rules' on sick leave, vacation leave, and other fringe benefits. May the Board pass rules letting state employees use sick leave for maternity, funeral leave, or to care for ill children or spouses?
Plain-English summary
In 1973, the South Dakota Legislature established a state-wide merit system of personnel management for most state employees, codified through Senate Bill 71. The new framework created a Personnel Policy Board with authority to make "non-conflicting rules on sick leave, vacation leave, and leave of absence for employees as stipulated in SDCL 3-6-6, 3-6-7, 3-6-9 and 3-6-10, and other fringe benefits."
Mr. Mullally asked AG Kermit Sande for guidance on the scope of that rulemaking authority. Specifically: could the Board adopt rules letting state employees use sick leave for maternity, funeral attendance, or care of ill children or spouses?
Sande's answer divided the question into parts.
First, on the structural authority. The Board's rulemaking power was bounded by the word "non-conflicting." The Board could fill gaps and add detail, but it could not pass rules that conflicted with the statutory text of SDCL 3-6-6, 3-6-7, 3-6-9, or 3-6-10. The Board's discretion was constrained by the underlying statutory framework.
Second, sick leave (SDCL 3-6-7). The statute provided fourteen days of leave per year for "sickness," accumulating up to six years of service, with proof of sickness for leaves over two consecutive days. The word "sickness" had been interpreted multiple times across the decades by prior AGs. In 1945-46 AGR 128, sickness had been defined as "any affection of the body which deprives it temporarily of its power to fulfill its usual functions," and a woman could use sick leave for child birth confinement. In 1951-52 AGR 417, the same office held that sick leave applied "only for the benefit of the state employee when he himself was sick." Sande followed both lines: maternity remained covered (it is sickness of the employee), but family care and funeral attendance did not, because they involve someone else's sickness or death, not the employee's.
The Board could not by rule expand sick leave beyond the statutorily-defined boundary. Doing so would be a "conflicting" rule. Sande's bright line: sick leave is for the employee's own sickness, with maternity confinement as a recognized example.
Third, vacation leave (SDCL 3-6-6). The statute was much more flexible. Vacation leave accrued monthly, cumulative to two years' worth, and the employee could use it at his or her discretion. Prior AG opinions had recognized employee discretion: 1933-34 AGR 500 and 1939-40 AGR 274 (use during active military or National Guard service), 1939-40 AGR 698 (use in two or more installments). So vacation leave could be used for funeral attendance, family care, or any other employee-chosen purpose. The Board's rules were not needed; employee discretion already covered the use.
Fourth, the "hours worked" workaround. While the Board could not redefine sick leave to include funeral attendance, the Board could adopt a rule defining what constitutes "hours worked." Section 15 of SB 71 gave the Board that authority. Under such a rule, the Board could specify that coffee breaks, travel between duty stations, or attendance at funerals of certain specified relatives or co-workers count as "hours worked." That treatment would not conflict with the leave statutes because it would not be drawing down a leave bank; it would be ordinary paid work time.
Sande's bottom line: stay within the statutory framework, use the "hours worked" mechanism for special leave situations, and let vacation discretion handle whatever the statutes did not.
Currency note
This opinion was issued in the 1970s. Subsequent statutory amendments, court decisions, or later AG opinions have substantially changed the analysis. Treat this page as historical context, not current legal advice. The most important later changes are federal: the Family and Medical Leave Act of 1993 (29 U.S.C. § 2601 et seq.) created federal-law leave entitlements for family care that did not exist in 1973. South Dakota statutes on state employee leave have also been amended many times since the 1970s. The 1973 SB 71 merit system has been substantially restructured. Modern questions about state employee leave should be verified against current SDCL chapter 3-6 statutes, current Bureau of Human Resources rules, and applicable federal FMLA provisions.
What the opinion meant at the time
For the Personnel Policy Board, the opinion drew a clear line. The Board could not by rule expand the categories of permissible sick leave use beyond the statutory boundary set in SDCL 3-6-7. Maternity was in (because the AG's office had said so since 1945-46), but other family situations were out. The Board's rule-making was real but bounded.
For state employees, the opinion meant that practical accommodation of family situations would have to come through vacation leave (which was discretionary) rather than sick leave. An employee whose child fell ill could take vacation days, not sick days. An employee attending a parent's funeral could take vacation days. Sick leave was for the employee's own sickness.
For state human resources administrators, the opinion clarified the documentation requirements. A sick leave claim had to be for the employee's own sickness, and after two consecutive days, a medical certificate was required. A vacation claim required only that the employee have accrued vacation available.
For the broader merit system reform, the opinion was a cautionary tale about the limits of Board authority. The Board had wide latitude in many areas (job classifications, hiring procedures, grievance procedures), but it could not amend the statutory text by rule. The Legislature would have to change the leave statutes themselves to expand permissible uses.
Common questions
Q: Why is maternity allowed but not family illness?
A: Because maternity is the female employee's own confinement. The AG opinions going back to 1945-46 had treated childbirth as "sickness" of the employee. A sick child or sick spouse is not the employee's sickness; it is someone else's. The statutory text and the line of prior opinions drew a personal-versus-other-person line at sickness of the employee.
Q: What is the "hours worked" workaround actually for?
A: SB 71 authorized the Board to define what counts as compensable working time. If the Board adopts a rule saying that funeral attendance for an immediate family member counts as "hours worked" up to (say) three days, the employee gets paid for that time without drawing on sick or vacation leave. That is not a conflict with the leave statutes; it is a different category of compensation.
Q: What is the difference between "non-conflicting" and "conflicting" rules?
A: A non-conflicting rule fills in a detail the statute left open or adds a procedure not addressed in the statute. A conflicting rule contradicts the statutory text. Letting an employee use sick leave for spouse's illness would conflict with SDCL 3-6-7 because the statute limits sick leave to the employee's sickness. Letting an employee carry over vacation across years up to two years' worth is non-conflicting because the statute expressly permits accrual up to two years.
Q: Could a labor contract change this?
A: At the time, state employee collective bargaining in South Dakota was limited (SDCL chapter 3-18 had been enacted but coverage was narrow). A union contract could not override a statute, but it could supplement what the statutes allowed. The vacation-discretion framing in the opinion was effectively the available supplemental mechanism.
Q: What about modern FMLA leave?
A: FMLA (1993) created federal entitlements to unpaid leave for the employee's own serious health condition, family member's serious health condition, birth or adoption of a child, and military family situations. South Dakota state employees who are FMLA-eligible can take FMLA leave for family illness even though state law sick leave does not cover it. FMLA did not exist in 1973 when this opinion was written.
Background and statutory framework
South Dakota's 1973 Senate Bill 71 was a major personnel-management reform. It established a state-wide merit system covering most state employees, created the Personnel Policy Board to govern it, and consolidated various leave and benefit provisions that had been scattered across earlier statutes.
The Board's rulemaking authority under SB 71 Section 15 was a layered grant. The Board could make "non-conflicting rules on sick leave, vacation leave, and leave of absence . . . and other fringe benefits." The "non-conflicting" qualifier was deliberate: the Legislature wanted Board flexibility but not Board override of statutory text.
The statutory sick leave system at SDCL 3-6-7 was relatively conservative by modern standards. Fourteen days per year, accrual capped at six years' worth, two-day documentation threshold, mandatory use of vacation before unpaid sick leave. The system was tied to the employee's own sickness, with maternity confinement recognized as falling within "sickness" by long-standing administrative interpretation.
The vacation leave system at SDCL 3-6-6 was more generous in its flexibility. The number-of-days blank in the statute as quoted in the opinion ("Every state employee shall be allowed____ days of absence for vacation with pay") was being filled in by other provisions or by separate rule. Accrual was capped at two years' worth; no advance grants permitted; payout on retirement, resignation, or layoff was mandatory.
Sande's opinion stitched the rule-making authority to the underlying statutory text. The Board ran the merit system but could not unilaterally expand sick leave beyond the statutory scope. Practical accommodation of family-care situations would happen through vacation leave or through the "hours worked" mechanism, not through redefinition of sick leave.
Source
Original opinion text
Personnel Policy Board's authority to pass regulations
Dear Mr. Mullally:
You have asked for an opinion on the following factual situation:
During the last session of the Legislature, Senate Bill No. 71 was passed which established a state-wide merit system of personnel management for most state employees. Section 15, paragraph (5) of that Act empowers the Personnel Policy Board, as created by the Act, to make "Non-conflicting rules on sick leave, vacation leave, and leave of absence for employees as stipulated in SDCL 3-6-6, 3-6-7, 3-6-9 and 3-6-10, and other fringe benefits."
In connection with this situation, you have asked:
Under this section, is it legal for the Board to specify certain types of use of sick leave (SDCL 3-6-7) or vacation leave (SDCL 3-6-6) such as maternity leave, funeral leave, or parental sick leave to nurse ill children or spouses? Would these items qualify as "non-conflicting rules," would they come under "other fringe benefits," or are they specifically illegal?
SDCL 3-6-7 provides:
Sick leave - Accrual and accumulation - Proof of sickness - Vacation leave used for sickness. In addition to the leave of absence for vacation as provided in SDCL 3-6-6, each employee of the state shall be entitled to fourteen days leave of absence for sickness without loss of pay, exclusive of Saturdays, Sundays and holidays, for each year he is in the employment of the state. Leave of absence for sickness shall be accrued on a monthly basis and cumulative to the extent of that which may be earned in a period of time not exceeding six years of regular and continuous state employment. All leave of absence for sickness in excess of two consecutive days must be supported by a medical certificate. No employee shall be entitled to more than his accrued and earned leave of absence for sickness without first using up any and all of his accumulated and earned leave of absence for vacation.
SDCL 3-6-6 provides:
Vacation leave - Accrual and accumulation. Every state employee shall be allowed ____ days of absence for vacation with pay. Such leave of absence for vacation shall be accrued on a monthly basis and cumulative only to the extent of that which may be earned in a period of time not exceeding two years of regular and continuous state employment. No advanced leave of absence for vacation with pay may be granted at any time. Employees who retire, voluntarily resign, or are discharged due to lack of work shall receive payment for unused vacation time. (Extraneous material not relevant to this opinion has been deleted from this statute).
The discretion granted the Board to pass rules relating to sick leave and vacation leave, is not plenary. The Board can pass only those rules that are "non-conflicting" with existing statutes. For employees of the State of South Dakota, sick leave and vacation leave are statutory benefits, rather than discretionary by rule of the board. Therefore, the use of these benefits must be based upon interpretations of the statutes, rather than upon board rules.
The sick leave statute has been interpreted many times before. In 1945-46 AGR 128, it was held that sickness is "any affection of the body which deprives it temporarily of its power to fulfill its usual functions." In that opinion, it was held that a woman may use sick leave for confinement caused by child birth. In 1951-52 AGR 417, it was held that the plain meaning of the statute was that sick leave was to be used only for the benefit of the state employee when he himself was sick.
On the other hand, this office has held that vacation leave may be used at the discretion of the employee. For example, in 1933-34 AGR 500 and 1939-40 AGR 274, it was held that employees may use their vacation leave while they are actively employed in the military service or by the National Guard. Similarly, it was held in 1939-40 AGR 698 that an employee may take his vacation leave in two or more installments.
The answer to your first question is that sick leave may be used for child birth or pending child birth. Sick leave may not be used to attend funerals or to nurse ill children or spouses. Vacation leave may be used for any of these purposes with or without Board rules allowing such uses.
The purpose above, which are forbidden by statute, cannot be allowed by rules of the Board.
However, the Board does have the authority in Section 15 of the Act: to adopt a rule defining what constitutes "hours worked." If the Board wished, it could define such things as coffee breaks, travel to a different duty station, or attending a funeral of certain specified relatives or state officers and employees, to mention a few examples, as "hours worked." Such a rule would not be in conflict with the statutes regulating vacation leave or sick leave.
Respectfully submitted,
Kermit A. Sande
Attorney General