December 16, 1976
Mr. Ronald Reed
Secretary of the Department of
Education and Cultural Affairs
State Capitol Building
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 76-120
Vacation leave for exempt faculty of the South Dakota School for the Deaf and the School for the Visually Handicapped
Dear Mr. Reed:
You have requested an official opinion from this office in regard to the following factual situation:
FACTS:
SDCL 3-6-6.1 states in part:
Any state employee, including those exempt from the provisions of Chapter 3-6A, who has been employed by the state for a period of six months shall be entitled to vacation leave. . .
SDCL 3-6A-13 states in part:
This chapter shall apply to all positions in the executive branch of state government . . . but excluding:
(1) . . .
(2) Presidents, deans, administrative and policy-making
positions, student health service physicians, teaching and professional research positions under the jurisdiction of the state board of regents and other directors or administrative policy-making positions of such institutions as determined by the personnel policy board; . . .
Based on the above facts, you ask:
QUESTIONS:
1. Does the provision for granting of vacation leave apply to exempt nonadministrative employees (faculty) of South Dakota School for the Deaf and South Dakota School for the Visually Handicapped?
2. If such act does apply does it eliminate or replace the traditional leave time granted to such employees during normal school holidays, vacations, and periods of nonactivity between school terms?
3. If the act applies to such employees and does not eliminate or replace the traditional leave time granted, does the release time during normal school holidays, vacations, and periods between school terms qualify as vacation time under the act?
SDCL 3-6-6.1 provides:
Any state employee, including those exempt from the provisions of 3-6A, who has been employed by the state for a period of six months shall be entitled to vacation leave except any temporary or emergency employee as defined by any rules promulgated by the personnel policy board pursuant to chapter 1-26, and any patient, inmate, or student employee, shall not be eligible for vacation leave. Any part-time employee who has served an accumulative six-month period shall be entitled to vacation leave.
In my opinion the above-cited statute clearly grants vacation leave benefits to the employee categories you refer to.
In my opinion, it is also clear that the leave time granted by SDCL 3-6-6.1 is in addition to legal holidays established by state law (SDCL 1-5-1). I do not believe that a public employee can be forced to take vacation leave granted under SDCL 3-6-6.1, for days which the law already establishes as being legal holidays.
Your questions are more complex, however, when one considers the matter of customary vacation periods established by the institution and the Board of Regents, during the school term year, and whether such "customary vacations" are days which can be required to be counted against teachers' vacation time granted by SDCL 3-6-6.1.
In my opinion, the vacation days during the school year term which the respective institutions and regents establish and which are not times during which teachers are expected to be at work (and which are not legal holidays), are days which can be counted against the vacation leave granted under SDCL 3-6-6.1.
As to periods of inactivity between school terms, it is my opinion that if a teacher is on a twelve-month contract, and is not expected to work during the period, the days which are not legal holidays during that period may be counted against vacation leave granted under SDCL 3-6-6.1.
It is my opinion that one of the inherent managerial powers of institutions, administrators, and the Board of Regents is to put reasonable limitations on the use of vacation leave by teachers such as those mentioned above. The institutions you refer to could not operate properly if teachers could just decide to take vacation leave whenever they choose. Conceivably, all teachers could choose to take vacation at the same time causing incredible administrative and operational problems for the institution. I do not believe that SDCL 3-6-6.1 was intended to effect such an unreasonable result.
Respectfully submitted,
WILLIAM J. JANKLOW
ATTORNEY GENERAL
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