April 16, 1975
Mr. F.R. Wanek, Acting Superintendent
Elementary and Secondary Education
State Capitol Building
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 75-71
Teacher specifically employed for special program may not waive continuing contract rights.
Dear Mr. Wanek:
You have submitted the following factual situation:
There are three residential treatment facilities for emotionally disturbed children currently being operated by Lutheran Social Services, Woodfield Center in Beresford; Summit Oaks in Sioux Falls; and Valley View Center in Pierre, and one operated by the Problems-in-Living Center in Sioux Falls. Each of these facilities provides a care and treatment program for emotionally disturbed children, and the educational programs are provided by the respective local school districts. These programs involve approximately 70 youngsters, all nonresident students with the exception of an occasional local enrollee at Sioux Falls and Pierre.
The three districts, Pierre, Sioux Falls and Beresford, have voiced concern that if the teachers assigned to these programs are under contract and the facility closes, they would be obligated to continue paying the salaries of these teachers, and there would be no source of income.
You have requested an opinion on the following question:
May the school district enter into a mutual agreement with a teacher providing that the teacher's contract of employment will be valid only for the period of time that the residential facility and funding is available to the district?
Your question involves the issue of whether or not a teacher can effectively contract away the statutory rights of a continuing contract under SDCL 13-43.
In the case of Schurr v. Weaver, 74 S.D. 378, 53 N.W. 2d 290, 292 (1952), our Supreme Court said in part:
Contracts contrary to public policy, that is those which tend to be injurious to the public or against the public good, are unlawful and no right of action can be founded thereon. Bartron v. Codington County, 68 S.D. 309, 2 N.W. 2d 337, 140 A.L.R. 550. This principle of public policy finds full recognition in the provisions of SDC 10.07. This court in Minnesota, D. & P. Ry. Co. v. Way, 34 S.D. 435, 148 N.W. 858, 859, L.R.A. 1915 B, 925, said: "The test is the evil tendency of the contract, and not its actual injury to the public in a particular instance.***The law looks to the general tendency of such agreements, and it closes the doors to temptations by refusing them recognition in any of its courts."
In my opinion, SDCL 13-43-9.1, 13-43-10, and 13-43-10.1 indicate that the Legislature believed public policy was best served by passage of those acts. Authentic admissible evidence of the public policy of the state on any given subject is its constitution, laws and judicial decisions, Mechanics and Metals National Bank v. Smith, 21 F. 2d 128 (1972).
The Weaver case notes that the law looks to the general tendencies of agreements which purportedly violate public policy. In the situation you present it seems that there is obvious potential for abuse in that, for example, teachers would potentially be subject to being put in the position of having to waive their statutory continuing contract rights if they want salary increases, promotions or other new contract terms. Such a potential is clearly part of the basis for the Legislature passing SDCL 13-43-9.1, 13-43-10 and 13-43-10.1.
On the basis of all of the above arguments and authorities it is my opinion that until such time as the Legislature or the courts determine that SDCL 13-43-9.1, 13-43-10 and 13-43-10.1 are not the public policy of the state, contractual attempts to negate or limit the force and application of the above statutes are contrary to public policy of the state and against the public good and as such cannot be legally enforced or recognized.
As a practical matter it appears that several of the problems involved in the fact situation you present will eventually be alleviated by the effect of House Bill No. 788 relating to schools setting policies for teacher staff reductions. It is also relevant here to note the recent decision of our Supreme Court in the case of Goodwin v. Bennett County High School Independent School District, 88 S.D. 639, 226 N.W. 2d 166 (1975) wherein the court held that teachers under continuing contract have only a right to be rehired at comparable wages, not necessarily at the same job they had held in prior years.
The answer to your question therefore is NO.
Respectfully submitted,
WILLIAM J. JANKLOW
ATTORNEY GENERAL
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