Several South Dakota school teachers are also serving in the Legislature. Can a school district continue to pay a teacher's regular salary during the legislative session, and can individual school board members be held personally liable if it does?
Apply this to your situation
This page answers the general question as of 1973. Ask about yours and see what current South Dakota law means for your facts, with citations you can check.
Plain-English summary
Several South Dakota school teachers had been elected to the Legislature. Public groups began suggesting that school boards paying these teachers their normal contract salaries during the legislative session might be running afoul of SDCL 3-8-4, the dual-compensation statute, and that individual board members might be personally liable for the payments. The Associated School Boards of South Dakota asked AG Gordon Mydland to clarify.
Mydland quoted SDCL 3-8-4's dual-compensation restriction. He did not parse its funding-source language or identify the sources of the two payments as the reason for his answer.
Mydland also cited a long line of prior AG opinions (1967-68 AGR 171; 1957-58 AGR 61; 1953-54 AGR 112; 1947-48 AGR 26; 1943-44 AGR 215) holding that employees may receive additional compensation for work outside their usual course of employment and outside their normal working hours. He concurred with his predecessors.
On personal liability, Mydland quoted SDCL 13-16-25: a taxpayer may recover district money "unlawfully expended" from the officer who expended it. He did not give a separate, explicit liability conclusion beyond directing the requester to that provision.
Mydland answered yes when asked whether a board without a prior policy could adopt one granting continued employment and leave without pay for legislative service. He referred to school boards' statutory duty to run schools.
Currency note
This opinion was issued in 1973. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. SDCL 3-8-4 and SDCL 13-16-25 may have been amended, so verify current law before relying on any specific rule mentioned here.
What the opinion meant at the time
For school districts whose teachers held legislative seats, the AG saw no statutory prohibition on paying all or part of a teacher's salary during legislative service. The opinion did not require a board to continue paying.
For a board considering leave without pay, the AG said it could adopt such a policy even if none existed before.
For taxpayers raising liability concerns, the opinion pointed to SDCL 13-16-25's remedy for district money unlawfully expended. It did not analyze a specific taxpayer claim.
Common questions
Q: What did SDCL 3-8-4 actually prohibit?
A: The AG quoted a prohibition on receiving another state salary or per diem during a period when a person received pay from the state treasury or funds of a state institution or department. He did not analyze how those funding terms applied to a teacher-legislator's two payments.
Q: Why didn't a teacher-legislator combination trigger the statute?
A: The AG concurred with earlier opinions allowing additional pay for work outside an employee's usual employment and working hours. He then said he saw nothing in the statutes prohibiting a board from paying all or part of a teacher's salary in the described situation. He did not give a funding-source analysis.
Q: Could a school board be sued by a taxpayer for paying the teacher during the session?
A: The AG did not decide a filed taxpayer case. In response to the liability question, he quoted SDCL 13-16-25, under which a taxpayer may recover district money unlawfully expended from the officer who expended it.
Q: What if the school board preferred not to pay during legislative service?
A: That was the board's call. Mydland confirmed boards had statutory authority to adopt a new policy granting leave-of-absence without pay for legislative service, even when the district had no prior policy.
Q: Did the AG address what the teacher should actually be doing during the session?
A: No. The opinion addressed the board's authority to pay all or part of the salary, potential recovery of unlawfully spent district money, and authority to adopt a leave-without-pay policy.
Q: What about other state employees serving in the Legislature?
A: The opinion did not decide how SDCL 3-8-4 would apply to other employees serving in the Legislature.
Background and statutory framework
The opinion quoted SDCL 3-8-4 and cited earlier AG opinions from 1943-44 through 1967-68. Mydland described those opinions as allowing additional compensation for work outside usual employment and working hours, then concurred with them.
SDCL 13-16-25 was the provision Mydland quoted in response to the liability question. Its quoted language allowed a taxpayer to recover district money unlawfully expended from the officer who expended it.
Mydland also relied on school boards' statutory duty to run schools to answer yes to adopting a leave-without-pay policy where none previously existed.
Citations and references
Statutes:
- SDCL 3-8-4 (dual compensation prohibition)
- SDCL 13-16-25 (taxpayer recovery of unlawfully expended school money)
Prior AG opinions:
- 1967-68 AGR 171
- 1957-58 AGR 61
- 1953-54 AGR 112
- 1947-48 AGR 26
- 1943-44 AGR 215
Source
Original opinion text
School Board may pay salaries to teachers serving as legislators.
Dear Mr. Nelson:
We have received from you a request for an opinion on behalf of the Associated School Boards of South Dakota, a state agency created by SDCL Ch. 3-9, based upon the following factual situation:
As in the past, several school teachers have been elected to the current Legislature. Several public groups have suggested that school board members may become personally liable for dual compensation of public employees, should they permit: these teachers to draw salaries at the same time they are drawing legislative pay. Also, several school districts involved, have received conflicting legal opinions regarding the payment of school district salary compensation for teachers who are serving in the State Legislature.
In connection with this factual situation, you have asked the following questions:
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Does the section on dual compensation in SDCL 3-8-4 prohibit a school district from paying to a legislator-teacher all or part of his contractual salary during the period of time he serves as a state legislator?
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Can an individual school board member be held personally and legally liable for the payment of such salary?
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Where no previous policy existed, may a school board adopt a policy granting continued employment and a leave of absence without pay for the time necessary to serve as a state legislator? institution or department thereof.
SDCL 3 8-4 provides:
DUAL COMPENSATION PROHIBITED.-No person receiving a salary or per diem payable out of the state treasury or from the funds of any state institution or department, shall, during the period for which such salary Or per diem has been or is to be paid, receive any other salary or per diem from the state or any institution or department thereof.
Prior Attorneys General have construed this section many times and have consistently held that employees who perform work outside of their usual course of employment that is not performed during their hours of employment, may collect additional compensation. See 1967-68 AGR 171, 1957-58 AGR 61, 1953-54 AGR 112, 1947-48 AGR 26 and 1943-44 AGR 215.
I concur with the opinions of my predecessors.
Members of a board may feel that the experience of serving in the Legislature is highly desirable and will increase the teacher's competency. Under present statutes, I can see nothing that would prohibit a school board from paying all or part of a teacher's salary in such cases.
In answer to your second question, I would like to draw your attention to SDCL 13-16-25 which provides (in part):
If any moneys belonging to any district is unlawfully expended ... Any taxpayer of the district: may recover such money from the officer so expending it.
The answer to your third question is, YES. The Legislature has placed the statutory duty of running the schools upon individual school boards. Where no policy regarding leave without pay has previously been in existence, school boards may enact one.
Respectfully submitted,
Gordon Mydland
Attorney General
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