If a binding-arbitration ruling under South Dakota's public-employee grievance statute says a school board violated its own evaluation policy by under-evaluating a probationary teacher, can the arbitrator order the board to hire that teacher for another year? And when exactly does a probationary teacher gain continuing-contract protection?

Plain-English summary

Mr. Deam posed a hypothetical about a probationary teacher who had not been rehired for the next year. The hypothetical assumed that the teacher filed a grievance because board policy required two annual evaluations by the superintendent but the teacher had received only one. It also assumed that, in binding arbitration, the Commissioner of Labor and Management Relations found a policy violation and ordered the board to hire the teacher for another year.

The administrator asked AG Kermit Sande three things: could the commissioner order the rehire, did that rehire put the teacher into protected continuing-contract status, and at what point in employment does a probationary teacher gain that protection.

Sande split the answers along a sharp line. The grievance statutes (SDCL 3-18 series) gave the commissioner authority to resolve grievances about how policy was applied. They did not grant the commissioner authority over employment decisions themselves. SDCL 13-8-39 and SDCL 13-10-2 vested employment power exclusively in the school board. So the commissioner could rule on the policy violation, but not order the rehire as a remedy. The answer to questions one and two was No.

The third question, the timing of continuing-contract protection, had a more complicated answer. SDCL 13-43-10 says a teacher employed by a school district "for at least two successive years" must be given written notice by April 1 of the current year if the board does not intend to renew. The earlier AG view (1957-58 AGR 163) read this to mean the teacher had to complete two consecutive years and gained protection in year three. But the SD Supreme Court in Blood v. Spring Creek Common School District held that a teacher in her second year of employment had to be given the April 1 notice; failure to give that notice in year two meant the teacher was entitled to the third-year contract by operation of law. So Sande followed the Supreme Court: written notice of non-renewal must come during the teacher's second successive year, not the third.

Currency note

This opinion was issued in the late 1970s during AG Kermit Sande'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. SDCL chapter 13-43 and the grievance procedure statutes may have been amended since 1978, and the continuing-contract framework and its deadlines should be checked against present law.

What the opinion meant at the time

For school boards, a labor arbitration ruling on a policy-application grievance could not override the board's hiring authority. Sande said the commissioner could decide the specific point raised in a grievance, but could not decide whether to employ a probationary teacher. The opinion did not identify other available remedies.

For probationary teachers, the hypothetical arbitration order could not require reemployment. The continuing-contract question turned on whether the school board followed the statutory notices and procedures in the teacher's second successive year.

For school administrators, the timing rule mattered: do not wait to issue non-renewal notices. By April 1 of the teacher's second year of work, written notice must be in the teacher's hands.

Common questions

Q: Could the arbitrator do anything as a remedy short of ordering rehire?
A: The opinion did not specify another remedy. Sande limited the commissioner's authority to the specific point raised in the grievance and said it could not make a decision affecting employment of a probationary teacher.

Q: What is "two successive years" exactly?
A: A 1957-58 AG opinion read the phrase to require completion of two years. Sande explained that the South Dakota Supreme Court in Blood v. Spring Creek held differently: the board had to give the statutory written notice by April 1 during the teacher's second year if it did not intend to renew the contract for the third year.

Q: Does this opinion apply if the school board had no written evaluation policy?
A: The hypothetical involved an existing evaluation policy. SDCL 3-18-1.1, quoted in the opinion, defines a grievance in terms of an existing agreement, contract, ordinance, policy, rule, or regulation. The opinion did not decide a case without an evaluation policy.

Q: Was the teacher entitled to any review beyond the arbitration?
A: The opinion did not address that. It resolved only the questions asked about the commissioner's authority and the continuing-contract timing; other avenues of review were beyond its scope.

Q: Did the court disagree with the earlier AG interpretation?
A: Yes, on the timing of protection. The SD Supreme Court held the school board's failure to give April 1, 1955 notice meant the teacher was entitled to the 1955-56 contract. That ruling directly contradicted the AGR 163 reading.

Background and statutory framework

The continuing-contract statute quoted by Sande required written notice by April 1 if a board did not intend to renew the contract of a teacher employed for at least two successive years. If the board failed to give that notice, the statute treated the failure as an offer to renew on the current terms.

The Blood v. Spring Creek decision rejected the earlier AG reading that required completion of two years before the notice rule applied. The court held that the notice obligation arose during year two; missing year-two notice entitled the teacher to the third-year contract.

The grievance statutes quoted by Sande defined grievances, required an employee grievance procedure, and allowed unresolved grievances to be appealed to the Department of Manpower Affairs for a binding order covering the points raised. Sande distinguished that process from the school board's statutory power to employ personnel.

Sande concluded that the school board alone had authority to employ or not employ personnel, while the commissioner could decide only the point raised in a grievance.

Citations and references

Statutes:

• SDCL 3-18-1.1, 3-18-15.1, 3-18-15.2 (grievance definitions and procedure)
• SDCL 60-5-11 (commissioner of labor duties)
• SDCL 13-8-39, 13-10-2 (school board powers)
• SDCL 13-43-4, 13-43-6 (teacher contract formalities)
• SDCL 13-43-9.1, 13-43-10, 13-43-10.1, 13-43-11 (continuing contract provisions)

Cases:

• Blood v. Spring Creek Common School District, 78 S.D. 580, 105 N.W.2d 545

Prior AG opinions:

• 1957-58 AGR 163 (superseded as to timing of continuing-contract protection)

Source

• Landing page: https://atg.sd.gov/OurOffice/OfficialOpinions/opinionhtml.aspx?id=300

Original opinion text

Probationary teacher, arbitration and continuing contracts statutes.

Dear Mr. Deam:

You have set forth the following situation:

Suppose that a probationary teacher who has not been reemployed for the next year files a grievance at the end of the first year of employment: and that such grievance is on the grounds that board policy requires two evaluations by the superintendent in each year of employment. The teacher cites the evidence that he has been evaluated only once during the past year. In binding arbitration the Commissioner of Labor and Management Relations says that the board has violated its policy and must hire the teacher for another year.

Based on the above situation, you have requested an opinion on the following questions:

1. Does the Commissioner have the authority to make decisions on employment or non-reemployment of personnel in his role of giving finding arbitration?

2. Can such a decision result in a probationary teacher being granted the protection of the continuing contract statute?

3. At what stage in employment is the probationary teacher given the protection of the continuing contract statute? Is it after the completion of two full years of employment with the district, or does it occur immediately after the teacher signs the second contract of employment with the district which would normally be in April of the first year of employment?

SDCL 3-18-1.1 reads as follows:

The word "grievance" as used in this chapter shall mean a complaint by a public employee or group of public employees based upon an alleged violation, misinterpretation, or inequitable application of any existing agreements, contracts, ordinances, policies, rules or regulations of the government of the State of South Dakota or the government of any one or more of the political subdivisions thereof, or of the public schools, or any authority, commission, or board, or any other branch of the public service, as they apply to the conditions of employment. Negotiations for, or a disagreement over, a nonexisting agreement, contract, ordinance, policy, rule, or regulation is not a "grievance" and is not subject to this section.

SDCL 3-18-15.1 reads as follows:

The governing officer or board of each governmental agency shall enact, by agreement, ordinance, regulation, rule or resolution, and make known to its employees a procedure which its employees may follow for prompt informal dispositions of their grievances.

SDCL 3-18-15.2 reads as follows:

If, after following the grievance procedure enacted by the governing body, the grievance remains unresolved, it may be appealed to the department of manpower affairs, which shall conduct an investigation and hearing and shall issue an order covering the points raised, which order shall be binding on the employees and the governmental agency.

SDCL 60-5-11 reads as follows:

All duties heretofore assigned to or performed by the commissioner of labor are hereby transferred to the department of manpower affairs. The department shall be responsible for the enforcement of all labor laws as found in chapters 60-1 to 60-5, chapters 60-8 to 60-13 and §§ 3-18-4 to 3-18-6.

SDCL 13-8-39 reads as follows:

As provided and limited by law, the school board shall have general charge, direction, and management of the schools of the district and control and care of all property belonging to it and shall have power to levy taxes, borrow money, employ any necessary personnel, to lease real and personal property, carry liability and other insurance, purchase all necessary books and equipment and purchase real property and erect necessary buildings for the operation of such schools.

SDCL 13-10-2 reads as follows:

Any school board shall have the power to employ clerks, superintendents, principals, teachers, janitors, caretakers, attorneys, architects, and any other personnel deemed necessary by the board, and to define the duties and fix the compensation of each.

SDCL 13-43-4 reads as follows:

A teacher shall be employed only upon written contract signed by the teacher and, in common school districts, by at least two members of the board, and in independent school districts by the president and clerk of the board.

SDCL 13-43-6 reads as follows:

The contract shall specify the date at or about which the school shall begin, the term of employment, the wages per month, and the time of payment thereof; such contract shall be signed in duplicate and one copy filed in the office of the clerk and the other retained by the teacher. Such contract may be issued covering any period of years over which a teacher holds a certificate which will remain valid without renewal.

There can be numerous reasons why a probationary teacher should not be reemployed and the school board's policy of evaluation of teachers may be minimally related to the basic reason or reasons for nonreemployment. It is my opinion based on the above cited statutes that the exclusive authority to employ or not to employ personnel lies with the duly constituted school board and that the Commissioner of Labor and Management Relations only has authority to make decisions under SDCL 3-18-15.2 covering the specific point raised in the grievance proceedings and does not have authority to make a decision which would affect the employment of probationary teachers. Therefore, the answer to your Question No. 1 is, NO.

It is my opinion that the granting of benefits under the continuing contract statutes is vested exclusively in the school board, and therefore, the answer to your Question No. 2 is, NO.

With reference to your Question No. 3, SDCL 13-43-10 reads as follows:

Any teacher who has been employed by any board of education of any school district in this state for at least two successive years shall be notified in writing by the board of education on or before the first day of April of the current year of the board's determination not to renew the teacher's contract for the ensuing school year, and failure to give such written notice on or before said date shall constitute an offer on the part of the board to renew the contract for the ensuing school year under the same terms and conditions as the contract for the then current year. Different terms and conditions may be mutually agreed upon by the board and teacher at any later time.

The phrase "at least two successive years" was determined in 1957-58 AGR 163 to mean that a teacher must have completed two consecutive (successive) years of employment and would then be eligible for the benefits of the continuing contract law during the third year of employment, however, our Supreme Court in Blood v. Spring Creek Common School District, 78 S.D. 580, 105 N.W.2d 545 held differently. In this case the teacher had a written contract for the school years 1953-54 and 1954-55. The teacher was not offered a new contract for the school year 1955-56 and was not notified in writing on or before the first day of April, 1955, of the school board's determination not to renew her contract for the ensuing school year. Based upon the 1957-58 AGR 163 Attorney General's Opinion, the teacher would not have acquired any rights under the continuing contract law and no notice in writing would have been necessary on or before April 1, 1955. On or before April 1, 1956 would have been the required date to give written notice of the school board's determination not to renew the teacher's contract. Our Supreme Court held, however, that the school board had not complied with the giving of the statutory notice on or before April 1, 1955, and, therefore, the teacher was entitled to the contract for the school year 1955-56. It appears, therefore, that based upon the Supreme Court decision, the written notices required by the continuing contract statutes must be given when the teacher is in the second year of employment if the school board does not wish such a teacher to acquire rights under the continuing contract statutes.

In answer to your specific Question No. 3, it is my opinion that a teacher acquires a right under the continuing contract statutes if proper written notices and procedures required by SDCL 13-43-9.1, 13-43-10, 13-43-10.1 and 13-43-11 are not pursued by the school board when a teacher is in his second successive year of employment.

Respectfully submitted,

Kermit A. Sande

Attorney General