A South Dakota law professor on the Board of Pardons and Paroles by Supreme Court appointment is moving to a full-time law-school faculty role with full salary. Can he also accept the Board's $1,800 statutory compensation and reimbursement for board-meeting expenses?
Plain-English summary
A South Dakota lawyer appointed by the state Supreme Court to the Board of Pardons and Paroles was about to start a full-time professorship at the University of South Dakota Law School. Mr. Murphy asked AG William Janklow three questions: could the appointee accept both his law-school salary and the $1,800 Board compensation plus expenses; if not, could he waive the salary and just take expenses; and if that was also barred, could he waive everything and still serve?
Janklow's first task was to correct the premise. The question assumed SDCL 23-58-2 still provided $1,800 in compensation for Board members. That statute had been repealed in 1971 by SDCL 4-7-10.5, which wiped out all statutory salary and per-diem provisions for "appointed members of all boards, commissions, councils, committees, and all other statutory or executive created policy-making or advisory bodies of state government." After 1971 the legislature set board compensation biannually through the budget process, with the Code Commission publishing the resulting schedule.
The post-1971 schedule for the Board of Pardons and Paroles provided no per diem or salary, only expense reimbursement up to $1,800 per member per year. So question one was answered No, but for a different reason than the questioner had imagined: there was no statutory salary to accept or refuse; only expenses were available.
The Board appointee could receive board-meeting travel, lodging, and meal expenses up to the $1,800 annual cap, set by the Board of Finance under SDCL ch. 3-9. Both his law-school salary and his Board expense reimbursement were lawful. No waiver was needed.
The answer to question three (could he waive everything) was yes, but the waiver was unnecessary given that the entitlements did not conflict.
Currency note
This opinion was issued in 1975 during AG William Janklow's tenure. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The Board of Pardons and Paroles compensation structure has evolved since 1975; modern Board member compensation should be checked against current statutes, the legislative budget appropriation, and any administrative rules.
What the opinion meant at the time
For the specific appointee, the answer was clean: keep the full-time law professor salary, receive Board expense reimbursement up to $1,800, do not bother with waivers. That was the whole package.
For Board members generally, the opinion clarified that the post-1971 system was an expense-only model. There was no honorarium or stipend. People served the Board for the public-service value of the work, plus reimbursement of out-of-pocket costs.
For other state-board appointees, the structural takeaway was important: SDCL 4-7-10.5's 1971 repeal had eliminated per-diem and salary statutes across the policy-board landscape. The compensation status of any state board needed to be checked against the current biannual schedule (under SDCL 4-7-10.4), not against the old statutory provisions.
Common questions
Q: Did the legislature change the Board's expense cap after 1975?
A: This opinion captured the 1975 state of the schedule. The biannual budget process allows the legislature to adjust the cap. Modern figures should be checked against the current schedule.
Q: Could the Board member submit expenses above $1,800?
A: The opinion said the schedule authorized expenses "up to $1,800 per member per year." Expenses above that figure would not be reimbursable absent a different legislative authorization.
Q: Was there a conflict-of-interest issue with the appointee also working as a state law-school professor?
A: The opinion did not address conflict of interest. The questioner had assumed there was a compensation overlap issue (state salary plus state board salary). The AG resolved that by noting there was no board salary. Separate conflict-of-interest analyses (e.g., dual-office holding doctrine, conflict statutes) were not raised.
Q: Could a Board member be barred from receiving expenses if they were a full-time state employee?
A: The opinion held no. Board service was a separate function from the law-school faculty role. Travel and meal expenses for Board meetings were reimbursable regardless of the appointee's other state employment, as long as they were within the $1,800 annual cap and incurred for Board business.
Q: What was SDCL 4-7-10.5 trying to accomplish?
A: It centralized board-compensation decisions in the legislative budget process. Before 1971, individual boards had compensation set by their organic statutes, leading to inconsistent treatment. The 1971 sweep let the legislature set salaries and per diems board-by-board through one schedule, biannually, with the Code Commission publishing the result.
Background and statutory framework
The 1971 statutory cleanup at SDCL 4-7-10.4 and 4-7-10.5 was a structural realignment of how South Dakota paid its policy-board members. Pre-1971, dozens of statutes scattered through the code each set their own per-diem and reimbursement rules. The legislature consolidated authority over those rates into the budget process, which let it adjust schedules as needed without amending the individual organic statutes.
The Code Commission's role in publishing the resulting schedule (in 1972 and 1974 supplements to Volume 2 of the South Dakota Compiled Laws) was administrative: capture the legislatively adopted rates and put them in a place users could find. The schedule was the operative source on what each board paid; the original organic statute (like the repealed SDCL 23-58-2) was no longer current law.
For the Board of Pardons and Paroles specifically, the post-1971 framework recognized that members were generally professionals with their own livelihoods. Some appointees were judges, some lawyers, some non-lawyers selected for diverse perspectives. Expense-only compensation made sense for a part-time, advisory-style role.
Citations and references
Statutes:
- SDCL 23-58-2 (Board of Pardons salary, repealed 1971)
- SDCL 4-7-10.4 (legislative biannual salary-setting)
- SDCL 4-7-10.5 (1971 repeal of per-diem statutes)
- SDCL 3-9 (state travel allowance regime)
Source
Original opinion text
Compensation for a member of the Board of Pardons and Paroles who is also a full-time faculty member
Dear Mr. Murphy:
You have requested an opinion based on this fact situation:
One of the members of the Board of Pardons and Paroles, a lawyer appointed by the Supreme Court will become a full-time professor of law at the Law School at the University of South Dakota on or about August 15, 1975, and will be compensated in such capacity.
Based on those facts, the following questions are posed:
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May he also accept the $1,800 compensation which is statutorily provided for a member of the Board of Pardons and Paroles appointed by the Supreme Court and the monies for his actual expenses in attending Board meetings?
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If the answer to either part of number one is 'no,' may he waive his salary of $1,800 as provided by statute as a member of the Board of Pardons and Paroles appointed by the Supreme Court and still receive payment for expenses actually incurred in performing his duties as a member of the Board of Pardons and Paroles?
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In the event the answer to both one and two is 'no,' may he waive both his compensation of $1,800 as provided by statute as an appointee of the Supreme Court and waive any and all actual expenses incurred in performing his duties as a member of the Board of Pardons and Paroles and still serve?
Before answering your questions specifically, it is necessary to straighten out a misunderstanding. Your request is based on the assumption that the compensation and expenses for Board members are statutorily provided.
However, a review of the relevant statutes indicated that there has been a repeal of SDCL 23-58-2.
In 1961, the South Dakota Legislature adopted SDCL 23-58-2, which authorized compensation and expenses for the Board of Pardons and Paroles:
.. The two electors appointed on the board shall receive for attending meetings of the board or performing duties under its direction such sums as may be determined by the board, provided that no such elector shall receive a total in excess of $1,800 in any one year. In addition to the compensation so provided, each member of the board shall be allowed mileage, which shall be figured at the same rate as allowed the state employees, and other necessary and actual expenses incurred in the performance of their duties as members of such board.
However, in 1971, the Legislature enacted SDCL 4-7-10.5, repealing SDCL 23-58-2:
All statutory provisions specifically establishing salaries or compensation on a per diem basis and reimbursement of expenses for appointed members of all boards, commissions, councils, committees, and all other statutory or executive created policy-making or advisory bodies of state government are hereby repealed.
The power for setting salaries or per diem compensation and expense reimbursement for such boards and commissions on a bi-annual basis was then placed in the hands of the Legislature, pursuant to a review of the recommendations in the Governor's budget. (SDCL 4-7-10.4.) Thus, compensation and expenses for such boards as the Board of Pardons and Paroles are no longer provided by statute.
Since 1971, the S.D. Code Commission has set out a schedule of allowances as adopted by the Legislature in the 1972 and 1974 supplements to Volume 2 of the South Dakota Compiled Laws, which specifies that the Board of Pardons and Paroles is not to receive per diem compensation, but is authorized to receive up to $1,800 per member per year in expenses. As it currently stands, therefore, the Legislature has provided that members of the Board of Pardons and Paroles may only receive reimbursement for expenses up to $1,800; there is no provision any longer for per diem or salary for Board members.
The answer to your first question therefore is NO. Since there is no longer lawful authorization for a per diem or salary for Board of Pardons and Paroles members the only lawful reimbursement available for the Board members are the expenses (up to $1,800 per member per year) allowed by the Board of Finance for travel, lodging and meals under SDCL 3-9.
The answer to your second question is apparent from the above conclusion. Obviously there is no need to reach the question of waiver since there is no "salary or per diem" to waive.
With respect to your third question the answer is Yes-the Board member may waive his right to be reimbursed for expenses if he so desires but it is not required since he is entitled to both his Law School professor's salary and travel expenses relating to the Board meetings.
Respectfully submitted,
William Janklow
Attorney General
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