June 3, 1986
Ms. Maxine Rose
Sully County Register of Deeds
Post Office Box 109
Onida, South Dakota 57564
OFFICIAL OPINION NO. 86-20
County Officials/Jury Duties And Compensation
Dear Ms. Rose:
You have requested an official opinion from this office in regard to the following factual situation:
FACTS:
Several elected officials and county employees have from time to time been called for circuit court jury duty. The county has not developed a consistent policy on the matter of compensation of officials and employees while on jury duty.
Based upon the above factual situation, you have asked the following questions:
QUESTIONS:
1. When a county elected official is called to appear for circuit court jury duty, does he/she get paid his/her regular monthly salary plus jury fees?
2. When a hired county employee is called to appear for circuit court jury duty, does he/she get paid his/her regular monthly salary plus jury fees?
3. When a county employee who lives out of town, but works n the same town where circuit court is held, and is to appear for circuit court jury duty, but who is not seated on the jury, who then goes to work get paid mileage for appearing for jury duty?
4. If the county employee is paid only his/her salary for his/her day on the jury and his/her normal working day is from 8 a.m. to 4:30 p.m., does he/she get paid overtime if he/she sits on the jury until 10:30 p.m.? We understand that if this employee gets his/her salary plus jury fees, this question will not apply.
5. If a county elected official or a hired county employee is called to federal jury duty, does he/she get paid his/her regular wages plus jury fees and mileage?
STATUTORY BACKGROUND
In order to answer your questions, the relevant statutory provisions governing jury duties and fees need to be examined. The relevant provisions provide as follows:
SDCL 16-13-46 states:
Each juror for each day's attendance upon the circuit court or the magistrate court shall receive twenty dollars, and mileage at such rate as may be established pursuant to § 3-9-1 for each mile actually and necessarily traveled, to be paid by the county. However any juror called but not impaneled shall receive an appearance fee of ten dollars and, in addition, mileage at such rate as may be established pursuant to § 3-9-1 for each mile actually and necessarily traveled. . . .
SDCL 16-13-41.1 states:
No person shall discharge any employee or suspend any employee from his employment for serving in any court in the state of South Dakota.
. . .
SDCL 16-13-41.2 states:
Any employee serving as provided in § 16-13-41.1 shall retain and be entitled to the same job status, pay, and seniority as he had prior to performing jury duty. Such temporary leave of absence while performing jury duty may be with or without pay within the discretion of the employer.
SDCL 7-7-17 states:
The salaries provided in § 7-7-9 [county treasurer, auditor, and register of deeds] shall be full compensation for all services rendered by such county officials under any and all laws of this state and all fees and per diem collected under the laws of this state by any such county officials shall be paid by such county officials to the county treasurer of their respective counties.
SDCL 7-7-24 states:
All county officials, except sheriffs, shall be paid for traveling expenses for each mile traveled in the discharge of their official duties not to exceed state mileage rate.
SDCL 4-3-2 states:
No county or state officer for whose services a salary is provided by law shall receive any compensation for his services other than such salary. All fees received by him shall be paid into the county or state treasury, as the case may be, not later than the time set by § 7-9-17. This section shall not be so construed as to affect in any manner any officer who receives no salary other than the fees paid for his services.
It is my opinion, based upon a review of the above statutes, that all county officials and employees are entitled to the statutorily mandated fees and expenses while performing jury duty. All of the statutory restrictions to receipt of fees in excess of salary in my opinion are inapplicable. The reason for this determination is that there is no connection between services a person performs as a juror and the services a county employee or official is hired or elected to perform. Restrictions such as those contained in SDCL 4-3-2 and SDCL 7‑7‑17 in my opinion only apply to fees generated from work-related services.
In addition, it is my opinion that every elected official or employee whose salary for those services is set by law must be paid his/her full salary regardless of the length of jury duty. The county cannot change what is mandated by statute.
It is my opinion, however, that it is within the discretion of the county to establish a policy for payment of salary during service as a juror for all county officials and employees whose salaries are not set by statute. The only restrictions South Dakota law has placed upon an employer involving an employee's service as a circuit court or magistrate juror is that the employee shall not be discharged and shall be entitled to the same job status, pay and seniority. The State has implemented a policy on this issue in ARSD 55:01:22:05 that gives the state employee his or her full salary. Counties and other local governments may wish to follow this example. Therefore, the answers to your first four questions are as follows:
IN RE QUESTION NO. 1:
The elected county official whose salary is provided by law is entitled to statutory jury fees, per diem and mileage as applicable with payment of salary.
IN RE QUESTION NO. 2:
A county employee whose salary is not provided by law, when appearing for circuit court jury duty, is entitled to the relevant statutory fees, per diem and mileage with payment of salary based upon a discretionary policy established by the county.
IN RE QUESTION NO. 3:
The county employee is entitled to statutory mileage fees for miles actually and necessarily traveled to serve as a juror and the ten dollar appearance fee.
IN RE QUESTION NO. 4:
County employees are entitled to jury fees and at the discretion of the county, his or her salary. It is my opinion, however, that the employee would not be entitled to overtime pay since the actual juror services performed are not work-related.
IN RE QUESTION NO. 5:
To answer your fifth question, it is my opinion that federal jury fees like state jury fees can be retained by the county elected official or hired county employee. The question of whether the county elected official or hired employee is entitled to salary is controlled by federal law. The relevant statutory provision in 28 U.S.C. § 1875 protects an employee from any sanctions as a result of federal jury duty. Under this statutory provision, the county must pay a county elected official or employee his/her regular monthly salary or be subject to suit in federal court which may subject the county to liability for lost wages, benefits, a civil penalty of not more than $1,000 and attorney fees. Unlike state jury duty, the county has no discretion in the area of salary compensation for employees.
Respectfully submitted,
Mark V. Meierhenry
Attorney General
