STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

August 26, 1975

Mr. Jeremiah Murphy, Chairman
Board of Pardons and Paroles
Boyce Building
Sioux Falls, South Dakota 57102

OFFICIAL OPINION NO. 75-149

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:

1. 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?

2. 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?

3. 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 anyone 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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