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?
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's answer turned on the precise text of SDCL 3-8-4. The statute bars a person receiving a salary or per diem "payable out of the state treasury or from the funds of any state institution or department" from also receiving "any other salary or per diem from the state or any institution or department thereof." Teacher salaries are paid by local school districts, not by the state treasury. The legislator's per diem comes from the state. The two streams are not both state-treasury sources, so the dual-compensation bar does not catch this combination.
Mydland also cited a long line of prior AG opinions (1947-48 AGR 215; 1953-54 AGR 112; 1957-58 AGR 61; 1967-68 AGR 171) 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 pointed to SDCL 13-16-25: a taxpayer may recover school district money "unlawfully expended" from the officer who expended it. Because the salary payments were lawful, no recovery was available. Board members were not personally exposed.
Mydland also confirmed that a school board could adopt a new policy granting continued employment and leave-of-absence-without-pay for legislative service, even when the district had no prior policy on the subject. The legislature had placed the running of schools in the hands of individual school boards, and that included the authority to craft personnel policies for elected service.
Currency note
This opinion was issued during AG Gordon Mydland's tenure (1969-1975). 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, and modern school-district employment, leave-of-absence, and dual-compensation rules should be checked against current statute, current AG opinions, and any applicable South Dakota Department of Education guidance before reliance.
What the opinion meant at the time
For school districts whose teachers held legislative seats, the practical answer was simple: keep paying the teacher's contract salary during the session. No statute prohibited it, and no taxpayer-recovery action against board members could succeed because the spending was lawful.
For school boards uncomfortable with paying for time the teacher was not actually in the classroom, the opinion confirmed an alternative: adopt a policy granting leave-without-pay for legislative service. Either approach was legally defensible. The choice was a policy call, not a legal one.
For taxpayers raising concerns, the answer pushed back on the premise. The dual-compensation statute had a narrow target (state-treasury double-dipping) and did not extend to teachers whose salaries came from local school district funds.
Common questions
Q: What did SDCL 3-8-4 actually prohibit?
A: It prohibited a person already receiving a salary or per diem paid from the state treasury from drawing a second salary or per diem from the state or any state institution or department. The textual emphasis was on the state-treasury funding source, not on holding two roles generally.
Q: Why didn't a teacher-legislator combination trigger the statute?
A: Because teacher salaries are paid by the local school district, not from the state treasury. The legislator's per diem comes from the state. Only one of the two payments is from the state treasury, so the statute is not implicated.
Q: Could a school board be sued by a taxpayer for paying the teacher during the session?
A: No. SDCL 13-16-25 lets a taxpayer recover money "unlawfully expended." Because Mydland's reading made the expenditure lawful, no recovery was possible. Board members were not personally exposed.
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 treated the question as one of legal authority to pay, not of policy wisdom or accountability. A board that paid the teacher in full might want internal expectations about session communication, lesson planning for substitutes, and other operational details, but those were separate from the dual-compensation question.
Q: What about other state employees serving in the Legislature?
A: SDCL 3-8-4 would catch a state agency employee whose salary came from the state treasury and who then took the legislator per diem. Local public employees (county, city, school district) are not in the same posture because their salaries are not state-treasury funds. The opinion did not analyze borderline cases in detail.
Background and statutory framework
South Dakota's dual-compensation statute, SDCL 3-8-4, addresses the narrow problem of a state employee drawing two state-treasury paychecks at once. It does not bar holding two public roles, and it does not bar combinations where only one of the two compensation streams is state-treasury-sourced. The 1973 Mydland opinion sat in a line of consistent AG opinions stretching back to the 1940s holding the same way.
SDCL 13-16-25 supplies the enforcement mechanism for unlawful school district spending. A taxpayer may recover the money personally from the officer who authorized the expense. The statute is potent against genuinely unlawful spending, but it does not apply when the spending falls within statutory authority. Mydland's holding that the salary payments were lawful was therefore also the holding that taxpayer-recovery actions had no traction.
The school-board authority to adopt personnel policies derives from the broader grant that places running schools in the hands of local boards. Leave-of-absence policy for elected service is a permissible exercise of that authority. The opinion noted that boards "may enact one" where none previously existed, signaling that the absence of a written policy did not foreclose action.
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:
- 1947-48 AGR 215
- 1953-54 AGR 112
- 1957-58 AGR 61
- 1967-68 AGR 171
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