November 23, 1976
Mr. Donald C. Dahlin, Secretary
Department of Public Safety
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 76-109
Reinstatement of Highway Patrol officers
Dear Secretary Dahlin:
In your request for an official opinion, you have submitted the following information:
FACTS:
In enacting the general appropriations measure for fiscal year 1977, the 1976 Legislature authorized the Highway Patrol to have a strength of 177 full-time employees. At the present time, the Highway Patrol is operating with 176 full-time employees. However, an officer discharged by the Highway Patrol in November, 1975, has appealed his discharge and his appeal is currently before the South Dakota Supreme Court. Conceivably, the South Dakota Supreme Court could order the reinstatement of said officer. Moreover, the Police Civil Service Commission recently decided to reinstate an officer who had resigned within the past year. Thus, with the addition of the officer reinstated by the Police Civil Service Commission, the Highway Patrol would exceed its authorized number of full-time employees if the South Dakota Supreme Court decided in favor of the previously discharged officer and ordered his reinstatement.
Based upon the foregoing information, you have asked four questions:
QUESTIONS:
1. When a classified officer of the Highway Patrol is discharged from the Highway Patrol and appeals said discharge, does the discharge of the officer create a vacancy in the authorized positions (FTE) of the Highway Patrol which may be filled by appointment of another person during the period between the date of the discharge and the date of the final decision of the court?
2. If the answer to Question Number 1 be, "The discharge does create a vacancy which may be filled," and the vacancy is filled pursuant to law and rule and the court in the final decision orders the reinstatement of the officer making the appeal, can the officer be returned to service if there be no vacancy or position (FTE) because of the limits established by the Legislature?
3. When the State Police Civil Service Commission reinstates an officer of the classified service who has resigned, is the Superintendent of the Highway Patrol required to reappoint the officer?
4. When the State Police Civil Service Commission reinstates an officer of the classified service who has resigned and there are no vacancies or positions (FTE) as authorized by the Legislature, is the Superintendent of the Highway Patrol required to reappoint the officer?
IN RE QUESTION 1.
With respect to the first question, it should be emphasized that the number of full-time employees "authorized" for a particular agency is not established by law. An agency cannot lawfully spend more money than appropriated to it by the appropriations bill. However, there is no strict legal requirements that an agency operate within the confines of the "authorized" number of full-time employees. The designation of a specific number of full-time employees is merely a guideline used by the Appropriations Committee of the Legislature to prepare budgets for the various agencies. As a practical matter, such a designation may also constitute a subtle agreement or understanding between the Appropriations Committee and the agency concerning the number of individuals that will be employed.
In view of the foregoing, your first question cannot be fully answered on the basis of legal theory or statutory law. The answer is realistically a policy matter between your department and the Appropriations Committee. The Appropriations Committee can react in any manner it deems appropriate in such a situation and an agency acts at its own peril in exceeding its authorized strength. However, in expressing an opinion, I am assuming that the Appropriations Committee would be somewhat flexible under the circumstances and that they would make allowance for the unfortunate and unavoidable emergency created when and if a court orders a department to exceed its authorized number of full-time employees.
Qualified as such, it would appear to me that the Highway Patrol could appoint an individual to fill the position left vacant by the dismissal of an officer. The Highway Patrol cannot reasonably be expected to operate for a protracted period of time in an understrength status while the discharged officer follows a chain of appeals up to the Supreme Court of South Dakota. Such a process may take up to several years. Should the Supreme Court ultimately order the reinstatement of the officer, the Highway Patrol should take appropriate steps to reduce its strength to the designated number of full-time employees. If the court-ordered reinstatement causes the Highway Patrol to exceed its budget, statutory procedures are available to remedy such an unavoidable emergency. See SDCL 4-8-7.
IN RE QUESTION 2:
In answer to your second question, as a general rule, a department of state government could not refuse to comply with a court order compelling reinstatement of a discharged employee on the grounds that it does not have an employee "vacancy" because of limits on the number of full-time employees authorized by the Legislature. Such a refusal would almost certainly lead to a contempt citation. On the other hand, in a somewhat different situation, a department may be justified in failing to follow such an order, whether imposed by the court or the Police Civil Service Commission, if the department absolutely does not have necessary funds in its budget to pay the employee. Before such a defense could be successful, the department would have to prove that it acted diligently and in the utmost good faith to secure necessary funds; and that there are no probationary employees who could be discharged to create funds to retain the reinstated employee.
IN RE QUESTIONS 3 and 4:
The answer to your third and fourth questions is "no." In my opinion the Police Civil Service Commission is without authority to reinstate an officer who has resigned. One of the rules of the Police Civil Service Commission (1974 ARSD § 55:02:08:04) provides that a member may be reinstated by the Police Civil Service Commission within one year after he has resigned. However, there is absolutely no statutory authority for such a rule and in the absence of such statutory authority, any attempt by the Police Civil Service Commission to reinstate an officer who had previously resigned would be unlawful.
Respectfully submitted,
WILLIAM J. JANKLOW
ATTORNEY GENERAL
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