STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL
February 21, 1974
Dr. Jan Ebersdorfer, Acting Secretary
Dept. of Education and Cultural Affairs
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 74-05
Legal responsibilities of Faculty Tenure Committee.
Dear Dr. Ebersdorfer:
Your predecessor, Mr. Deam, submitted the following factual information with a request for an opinion:
Each of our Regential institutions has created a committee for the purpose of reviewing recommendations for tenure and evaluating previously granted tenure of factulty persons.
The members of these committees have been concerned about the legal protections offered them as they perform their work.
You have requested an opinion on the following specific questions:
1. Is such a committee and its members subject to lawsuit by a faculty member who receives a negative recommendation for tenure?
2. In case of a lawsuit, what legal counsel would be provided to the members of the committee?
3. Can legal counsel be provided to the committees as they design their operational procedures?
4. Where could such counsel be obtained?
With reference to your Question No.1, I am unaware of any specific statute that would make such committee or the members thereof immune from lawsuits. Therefore, the answer to your Question No. 1 is, YES. However, your attention is called to SDCL 16-17-13, which may have some application. See also SDCL 19-2-5 and SDCL 20-11-5. With reference to your Question No.2, SDCL 3-19 reads as follows:
3-19-1. If any claim or action is instituted against any governing board or member thereof, or an officer or employee of the state of South Dakota, or any political subdivision of the state, arising out of an act or omission occuring within the scope of the employment of such employee, or when exercising official duties or responsibilities as an officer or member of such governing board, the entity may elect to do anyone or more of the following things:
(1) Indemnify such officer or employee for the court costs incurred in the defense of such claim or action;
(2) Pay or indemnify such tfficer or employee the reasonable attorney fees incurred by virtue of such claim or action;
(3) To pay or indeminfy such officer or employee for a judgment based upon such clai mol action; or
(4) Pay or indemnify such officer or employee for a compromise or settlement of such claim or action.
3.19.2. In no event shall the total amount of payment or indemnity for anyone officer or employee exceed the sum of seven hundred fifty dollars.
3-19-3. The governing board of the particular political subdivision shall act for the entity in determining the election and amount of indemnity or payment to be made to such officer or employee. If the officer or employee is a state officer or employee, the attorney general shall make such election, and determine the amount of reimbursement or payment to be made to such employee.
If the committee is a duly constituted official committee, then it is my opinion that the above cited statutes provide the answer to your Question No.2.
The answer to your Question No. 3 is, YES.
In answer to your question No.4, it is my opinion that request for such counsel be made to the Attorney General of the State of South Dakota.
Respectfully submitted,
Kermit A. Sande
Attorney General
