May 3, 1988

Mr. Vernon L. Larson 
State Auditor 
Office of the State Auditor 
500 East Capitol 
Pierre, South Dakota 57501

Official Opinion No. 88-15

State employees serving on state boards or commissions

Dear Mr. Larson:

You have requested an official opinion from this office in regard to the following factual situation.

FACTS: 

An employee of the South Dakota State University Extension Agency has been appointed by the Governor to serve on the State Fair Commission.  A business manager of South Dakota State University contends that under SDCL 3-8-4.1 this employee is not entitled under any circumstances to receive salary or per diem compensation for serving on the State Fair Board from that Board, in addition to her compensation from her primary state employer.  Prior to the date of the opinion request, the auditor's office has approved per diem compensation to state employees who serve on state boards, commissions and councils, with approval of the primary employers and where services are performed outside normal working hours or where annual leave or leave of absence without pay is taken.

Based on the above facts, you have asked the following questions:

QUESTIONS: 

1.   Are there circumstances which permit a state employee serving on a board, commission, committee or council of the state to get salary or per-diem compensation for serving on such body?  

2.   If the answer to number one is affirmative, please specify which circumstances are allowable;  i.e., annual leave or leave without pay. 

3.   If your answer to number one is negative, if expenses are incurred by the state employees while serving on such board or commission, does it make a difference whether those expenses are reimbursed by the employing agency or by the board or commission?

IN RE QUESTION NOS. 1 and 2:

The answer to your first question is Yes.  By answering this question, I have also set forth these circumstances under which an employee can receive compensation from two state entities, thereby answering Question 2.  By answering these two questions, Question 3 is rendered moot and will not be addressed.

The South Dakota Legislature in SDCL 3-8-4 promulgated a general provision which prohibits dual compensation of state employees except as provided in § § 3-8-4.1 to 3-8-5.4.  Based upon my review of these provisions, it is my opinion that there are two statutorily authorized avenues by which state employees are entitled to receive additional compensation for serving on a board, commission, committee or council of the state.

The first exception is under SDCL 3-8-5.1 through 3-8-5.4.  These  provisions authorize true dual compensation for state employees where the Bureau of Personnel determines it is in the best interests of the state of South Dakota to permit the state employee to be compensated for both his or her regular employment by the state and for additional services to the state outside the scope of his or her regular employment.  In my opinion, these dual compensation provisions would be available to an employee who was appointed to a board, commission, committee or council of the state by the Governor. Whether this specific state employee is entitled to dual compensation is a question to be determined by the Bureau of Personnel applying its rules, regulations, discretion, and policies on the matter.

Next, it is my opinion under SDCL 3-8-4.2 and 3-8-4.3 that a state employee may also be entitled to receive another type of dual salary or per diem compensation for serving on state boards, commissions, committees or councils.  This could occur where a state employee, with permission from his other employer, takes annual leave, leave without pay, or performs services for the board or commission only during weekends, legal holidays or other outside normal working hours.  In such a case, the employee may receive compensation from the board or commission.  Unlike the situation under SDCL 3-8-5.1 through 5.4, an employee cannot receive salary or per diem compensation from both state employers for services performed during normal working hours.

The above interpretation is based upon the fact that the term "agency" as  used in 3-8-4.2 and 3-8-4.3 is defined in SDCL 1-26-1 as meaning:  "each association, authority, board, commission, committee, council, department, division, office, officer, task force or other agent within the state vested with the authority to exercise any portion of the state's sovereignty."  Given this definition, it is my opinion that the restrictions stated in SDCL 3-8-4.1 that apply to state boards, commissions and councils only further limit state employee compensation from a secondary employer but do not prohibit it.

In answering Questions Nos. 1 and 2, please be informed that the statutes cited do not prohibit a primary employer from determining that serving on a state board, commission, committee or council is within the employee's primary scope of employment.  Under these circumstances, the primary employer could pay the employee his or her normal salary together with per diem and travel compensation.  The employee would then not be entitled to additional salary or per diem absent specific approval by the Bureau of Personnel under SDCL 3-8-5.1 through 5.4.  This in my opinion would be an exceptional circumstance.  In addition, under SDCL 3-8-4.1, a state employee, even without permission from his or her primary employer, is entitled to receive allowable expense reimbursements, other than salary or per diem compensation, as authorized by SDCL 4-7-10.4 from the secondary employer.

Respectfully submitted,

Roger A. Tellinghuisen
Attorney General