January 19, 1976
Doctor Ronald Reed, Secretary
Department of Education and
Cultural Affairs
New State Office Building
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 76-5
Are teachers subject to the provisions of SDCL 13-10-11, 13-43-26, and 13-43-9.1
Dear Doctor Reed:
You have requested an official opinion from this office as to whether or not teachers who are employed by school districts in a post secondary vocational education program are subject to the provisions of SDCL 13-10-11, 13-43-26, and 13-43-9.1.
The statutes cited in your letter provide as follows:
SDCL 13-10-11. All school boards shall establish a written policy for teacher staff reductions.
SDCL 13-43-26. Each school shall adopt official standards, criteria and procedures for the evaluation of the professional performance of members of the teaching profession employed in the school district. A copy of the school board's official evaluation policy shall be forwarded to the division of elementary and secondary education. If a school board has failed to adopt and file its official evaluation policy, the evaluation policy promulgated by the commission shall become the school board's policy.
SDCL 13-43-9.1 provides in part:
. . . All teachers shall be evaluated and given notice of any deficiencies during each semester of the first two full terms of employment.
SDCL 13-39 authorizes the school districts to offer post secondary vocational education courses. In view of this fact, you ask whether or not the above cited statutes are applicable to the teachers employed by school districts in post-secondary vocational education programs.
A review of the rules adopted by the State Board of Vocational Education (1974 ARSD 24: 10) would indicate that all instructors in vocational courses must be eligible to satisfy the requirements of at least a limited teaching certificate. A limited teaching certificate is issued under the State Board of Education rule 1974 ARSD 24:02:02:02.
It is my opinion that the word or phrase "teacher" or "teaching profession" as used in SDCL 13-10-11, and 13-43-26, includes all persons employed by a school district who hold a valid certificate issued by the Division of Elementary and Secondary Education and would also include those employed to teach in post secondary vocational programs operated by or participated in by the school district. It is also my opinion that the phrase "grades kindergarten through twelve" as found in SDCL 13-43-12 does not restrict the application of SDCL 13-tO-11 and 13-43-26 as to a policy of staff reduction and evaluation for all teachers employed by the school district.
Respectfully submitted,
WILLIAM J. JANKLOW
ATTORNEY GENERAL
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