April 10, 1975
Mr. Robert Mullally, Commissioner
Bureau of Personnel
Capitol Building
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 75-66
Transfer of leave time
Dear Mr. Mullally:
You have requested an opinion from this office based on the following factual situation:
According to SDCL 3-6-9, employees of state government are entitled to transfer “all unused and earned leave of absence for vacation or sickness as was allowed him under the provisions of SDCL 3-6-6 and 3-6-7" in the event that the employee transfers to a different department within state government.
Based on this situation you ask:
Which agency is obligated to meet the fiscal obligation of this statute? Would it be the department from which the employee is transferring or the department to which the employee has been transferred?
SDCL 4-8-2 provides in part:
No payment shall be made and no obligation incurred against any appropriation unless such payment has been authorized as provided by law.
When the Legislature passed SDCL 3-6-9, they did not make any provisions authorizing or obligating a state office or department hiring a state employee with "accumulated leave" to pay such leave out of their budget. Accordingly, it is my opinion that until the Legislature provides otherwise, the department or office under which "leave" is accumulated, is obligated to pay for such "leave" when an employee transfers his employment to another state department or office. The transfer of "leave time" when an employee transfers employment should, therefore, be accompanied by a non-cash transfer of funds to the new department or office in an amount equal to the leave accumulated by the employee while in the employment of the original department or office. It is patently unfair and illogical for a department hiring a state employee with accumulated "leave" to have to pay for accumulated "leave time" out of its funds, the obligation having been incurred and accumulated under the original department or office. The original department or office not the new department or office is responsible for the cost of "accumulated leave" when an employee transfers from the original to the new department or office.
Respectfully submitted,
WILLIAM J. JANKLOW
ATTORNEY GENERAL
WJJ:DC:rw
