March 10, 1977

The Honorable Wayne A. Hauschild 
South Dakota State Representative 
1028 Seventh Avenue 
Brookings, South Dakota 57006

Official Opinion No. 77-22

Whether a teacher is subject to automatic rehiring under SDCL 13-43-2

Dear Mr. Hauschild:

You have requested an official opinion in regard to the following factual situation:

FACTS: 

The specific instance that I have a question on involves a situation where a teacher has been employed for several years and is in fact a continuing contract teacher.  The teacher's brother was elected to the school board recently.  The teacher is subject to automatic rehiring to the continuing contract law.

Based on the above facts, you ask:

QUESTIONS: 

1.  Does SDCL 13-43-2 apply only to the first employment of a teacher?
    
2.  Also, does SDCL 13-43-2 apply to the automatic renewal of a teacher who is a continuing contract teacher pursuant to SDCL 13-43-9.1 through 13-43-10.1?

IN RE QUESTION NO. 1:

SDCL 13-43-2 provides: 
    
No teacher related by blood within the third degree to a member of the school board or the spouse of a member shall be employed in any school district except by unanimous vote of the board.

In my opinion, the provisions of SDCL 13-43-2 are intended to prevent nepotism from developing in a school system.  If a teacher is presently employed by the school district before a relative becomes a member of the board, I do not believe that the intent of the Legislature was to have SDCL 13-43-2 make this teacher leave employment in the school district if one member of the board votes against him.  In my judgment, SDCL 13-43-2 is intended to apply to a situation where the teacher's “relative” is already a member of the board at the time the teacher applies for a teaching position.

IN RE QUESTION NO. 2:

Your second question points out an additional problem with interpreting SDCL 13-43-2 to apply to a situation where a teacher has been employed for many years and a “relative” gets newly elected to the school board.  Are the continuing contract rights of that teacher jeopardized to the extent that if one member of the board votes against renewal, said teacher's continuing contract rights would be negated?

I do not believe it is the intent of the Legislature to provide such a limited contract right for a teacher with such a problem under SDCL 13-43- 2.  If the teacher is employed by the school board before the “relative” becomes a member of the board, the provisions of SDCL 13-43-2 would not seem to me to restrict the continuing contract rights of that teacher.  If, however, the teacher were employed by the school district after his “relative” became a member of the school board, it would be my judgment that SDCL 13-43-2 would apply as to the initial hiring and as to every year of renewal until that teacher developed a continuing contract right.  Once the continuing contract right was established, I believe that teacher's right would need to be controlled by the same standards and criteria as other teachers under the continuing contract law.

Respectfully submitted,

William J. Janklow
Attorney General

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