STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL
February 27, 1974
Dr. Jan Ebersdorfer Acting Secretary
Dept. of Eduation and Cultural Affairs
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 74-08
Legality of nepotism policy of the Board of Regents.
Dear Dr. Ebersdorfer.:
Your predecessor, Mr. Deam, asked for an official opinion as to whether or not the following Board of Regents resolution is valid:
"Resolved, that no individuals related by blood or marriage may be employed in the same institution without approval of the Board of Regents. One such member may not serve in line authority (supervisory role) over another."
The primary function of administrative agencies is to carry into effect the will of the state as expressed by it legislation. 1 Am. Jur. 2d, Administrative Law, "Powers and Functions of Administrative Agencies," §69. In order to carry out their functions, administrative agencies most always have the power to act through other persons. 2 Am. Jur. 2d, Administrative Law, "Acting Through Other Persons; Delegation to Subordinates," §221. The authority to hire personnel carries with it the implied authority to also discharge them and to make reasonable rules and regulations governing their conditions of employment.
This power, insofar as it relates to non-teaching and professional research positions, has been delegated by the Legislature to the Career Service Personnel Management System. SDCL Ch. 3-6A. Such an expressed delegation of the Legislature's will takes precedence over an agency's inherent right to set standards for its own employees.
All employees of the Division of Higher Education are covered by the Career Service Act, except:
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. '" SDCL 3-6A-13(5)
Pursuant to the Career Service Act, the Personnel Policy Board has passed rules governing covered employees. Rule No. 3.1102 provides:
Without specific approval by the Commissioner, no person shall be employed, promoted, or transferred to a division or institution of the State when, as a result he or she would be supervising or receiving supervision from a member of his or her immediate family.
The above rule preempts any resolution made by the Board of Regents on the same subject matter.
Insofar as employees not covered by the Career Service Act are concerned, the Board of Regents would still have the implied powers to set reasonable standards governing conditions of employment.
The evils of nepotism are well known, particularly when one member of a family supervises another member of his family. The resolution passed by the Board of Regents would, in my opinion, be a reasonable exercise of the Board's authority to regulate its employees to prevent the dangers inherent in a hiring policy allowing nepotism.
The answer to your question is, YES, when said resolution is uniformly and non-arbitmrily applied to employees not covered by the Career Service Act and such application is not in conflict with Presidential Executive Order 11246 as amended by 11375 and Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972. The answer to your question is, NO, for those employees who are covered by and are subject to the Career Service Act and the Personnel Policy Board's nepotism rule.
Respectfully submitted,
Kermit A. Sande
Attorney General
