July 1, 1985
Mr. Sam Tidball
Executive Director
Associated School Boards of South Dakota
Box 1211
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 85-27
School Board member compensation
Dear Director Tidball:
You have requested my official opinion concerning the effect of Senate Bill 296, (SDCL 3-8-12 as passed by the 1985 Legislature. The statute provides:
If the salary of any elected official who may vote on his own salary is increased, the increase for that elected official may not commence until the expiration of the term for which such official was elected, or until two years after the passage of such increase, whichever is less.
Based upon the foregoing statute you have asked the following questions:
QUESTION:
1. Does Senate Bill 296 (SDCL 3-8-12) apply to school board members?
2. Because a school board appears to have some latitude in setting salary within the limit established by the Legislature, does that place school boards in the category of 'any elected who may vote on his own salary'?
3. Does the 'may receive' in SDCL 13-8-37 give school boards the latitude of setting their members' compensation at any level up to the amount set by the State Board of Education or must it be set at the same amount?
4. If Senate Bill 296 (SDCL 3-8-12) does impose a delay on increasing a school board member's compensation, what can be done to avoid members of the same board from being paid different amounts?
CONSTITUTIONAL PROVISIONS
Article III, § 23 of the South Dakota Constitution provides in pertinent part:
The Legislature is prohibited from enacting any private or special laws in the following cases: (1) through (10) not applicable.
11. Creating, increasing or decreasing fees, percentages or allowances of public officers during the term for which said officers are elected or appointed.
But the Legislature may repeal any existing special law relating to the foregoing subdivisions.
In all other cases where a general law can be applicable no special law shall be enacted.
In addition, Article XII, § 3 provides:
The Legislature shall never grant any extra compensation to any public officer, employee, agent or contractor after the services shall have been rendered or the contract entered into, nor authorize the payment of any claims or part thereof created against the state, under any agreement or contract made without express authority of law, and all such unauthorized agreements or contracts shall be null and void; nor shall the compensation of any public officer be increased or diminished during his term of office: provided, however, that the Legislature may make appropriations for expenditures incurred in suppressing insurrection or repelling invasion. [Emphasis Supplied]
Finally, Article XXI, § 2 provides:
The Legislature by two-thirds vote of each branch thereof at any regular session may fix the salary of any or all constitutional officers including members of the Legislature. In fixing any such salary the Legislature shall determine the effective date thereof and may in its discretion decrease or increase the salary of any officer during his term.
IN RE QUESTIONS NO. 1, 2, AND 3:
SDCL 13-8-37 provides:
Each member of a local school board may receive the same per diem per meeting as is authorized for the members of the state board of education, pursuant to § 4-7-10.4. The per diem may be paid for each meeting actually attended by such member and also for each day a member was actually engaged in the service of the board when authorized by the board.
A plain reading of the statute set out above reveals that it speaks only in terms of individual board members and neither provides nor implies any authority for the school board as a whole to establish compensation for its members. Given this interpretation of the statute, it is clear that Senate Bill 296, (SDCL 3-8-12) does not apply to school boards since no votes are involved.
I turn now to the implied question of whether an individual board member can establish his or her own compensation at some amount less than that set by SDCL § 4-7-10.4. This analysis brings into focus the meaning of the word 'may' in the first sentence of SDCL 13-8-37 set out above. It is my observation that in the process of drafting statutes for the Legislature a disturbing tendency has arisen in the recent past. It appears that each time a statute is brought up for amendment, certain scriveners within the legislative branch tend to substitute the word 'may' for the word 'shall' in a rather mechanical fashion. English is a living language; however, this fact does not grant license to anyone to disregard basic usages of the language.
In the ordinary lexicon of Americanized English, the word 'shall' imposes a duty or mandates an outcome while the word 'may' grants permission or delegates discretion. In the case of SDCL § 13-8-37, the word 'may' in the first sentence was changed from the word 'shall' through the vehicle of Senate Bill 138, 1978 S.D. Sess. Laws ch. 104. All prior versions of this statute used the word 'shall.' In this situation if the word 'may' is used in its ordinarily accepted sense, it would appear to allow individual board members to set the rate of pay they will receive for attending official meetings. I cannot believe this result was intended by the Legislature and accordingly, find myself compelled to interpret the word 'may' as found in the first sentence of SDCL § 13-8-37 to mean 'shall be entitled to.'
With sincere apologies to Mrs. Weaver and Mrs. McCahren (my high school and college English teachers), who through dint of great effort managed to drive into my head, and hundreds of others, the difference of meaning among the words 'can,' 'shall,' and 'may,' I find myself in the uncomfortable position of rendering an opinion that the word 'may' means shall. Of course, a board member is free to decline the compensation, thereby leaving intact some part of the discretion usually associated with the word 'may.'
The final result of this determination is that school board members are entitled to receive as compensation the rate established pursuant to SDCL 4-7-10.4 at any time that rate becomes effective.
IN RE QUESTION NO. 4
At first blush it would appear that the South Dakota Constitution in Article III, § 23 and Article XII, § 3 absolutely precludes any increase in a public official's compensation during his term of office. In a lengthy opinion enumerated as Official Opinion No. 72-38 found at page 60 of the 1973- 74 Report of the Attorney General, my predecessor explained the apparent conflict occurring when the Legislature increased county official's salaries during those officer's terms of office and the prohibitions found in the South Dakota Constitution. As to Article III, § 23, he opined that a statute applying to all officers was not a 'private bill.' He also concluded that a subsequent amendment to the Constitution found in Article XXI, § 2 abrogated the prohibition against such raises found in Article XII, § 3. I adhere to that opinion and further hold that the subsequent repeal of Article IX of the South Dakota Constitution was not intended to change the result set out in that opinion.
Following the analysis set out in that opinion, I have determined that the general appropriation bill passed by the 1985 Legislature contained in House Bill 1371, as amended, passed the House of Representatives on a vote of 60 in favor and 6 against. The same bill passed the Senate by a vote of 31 in favor and 0 against. Accordingly, since the general appropriation bill that, pursuant to SDCL § 4-7-10.4, fixes the per diem rate for state board of education members at sixty dollars per day passed both Houses by the required two-thirds vote, and since the bill, pursuant to SDCL 2-14-16, has an effective date of July 1, 1985, all school board members either holding or entering into office subsequent to that date are entitled to receive sixty dollars for attendance at each meeting of the board.
Respectfully submitted,
Mark V. Meierhenry
Attorney General
