STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

September 28, 1973

James Deam, Secretary
Education and Cultural Affairs
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 73-34

Probationary teacher, arbitration and continuing contracts statutes.

Dear Mr. Deam:

You have set forth the following situation:

Suppose that a probationary teacher who has not been reemployed for the next year files a grievance at the end of the first year of employment: and that such grievance is on the grounds that board policy requires two evaluations by the superintendent in each year of employment. The teacher cites the evidence that he has been evaluated only once during the past year. In binding arbitration the Commissioner of Labor and Management Relations says that the board has violated its policy and must hire the teacher for another year.

Based on the above situation, you have requested an opinion on the following questions:

1. Does the Commissioner have the authority to make decisions on employment or non-reemployment of personnel in his role of giving finding arbiration?

2. Can such a decision result in a probationary teacher being granted the protection of the continuing contract statute?

3. At what stage in employment is the probationary teacher given the protection of the continuing contract statute? Is it after the completion of two full years of employment with the district, or does it occur immediately after the teacher signs the second contract of employment with the district which would normally be in April of the first year of employment?

SDCL 3-18-1.1 reads as follows:

The word "grievance" as used in this chapter shall mean a complaint by a public employee or group of public employees based upon an alleged violation, misinterpretation, or inequitable application of any existing agreements, contracts, ordinances, policies, rules or regulations of the government of the State of South Dakota or the government of anyone or more of the political subdivisions thereof, or Of the public schools, or any authority, commission, or board, or any other branch of the public service, as they apply to the conditions of employment. Negotiations for, or a disagreement over, a nonexisting agreement, contract, ordinance, policy, rule, or regulation is not a "grievance" and is not subject to this section.

SDCL 3-18-15.1 reads as follows:

The governing officer or board of each governmental agency shall enact, by agreement, ordinance, regulation, rule or resolution, and make known to its employees a procedure which its employees may follow for prompt informal dispositions of their grievances.

SDCL 3-18-15.2 reads as follows:

If, after following the grievance procedure enacted by the governing body, the grievance remains unresolved, it may be appealed to the department of manpower affairs, which shall conduct an investigation and hearing and shall issue an order covering the points raised, which order shall be binding on the employees and the governmental agency.

SDCL 60-5-11 reads as follows:

All duties heretofore assigned to or performed by the commissioner of labor are hereby transferred ot the department of manpower affairs. The department shall be responsible for the enforcement of all labor laws as found in chapters 60-1 to 60-5, chapters 60-8 to 60-13 and §§3-18-4 to 3-18-6.

SDCL 13-8-39 reads as follows:

As provided and limited by law, the school board shall have general charge, direction, and management of the schools of the district and control and care of all property belonging to it and shall have power to levy taxes, borrow money, employ any necessary personnel, to lease real and personal property, carry liability and other insurance, purchase all necessary books and equipment and purchase real property and erect necessary buildings for the operation of such schools.

SDCL 13-10-2 reads as follows:

Any school board shall have the power to employ clerks, superintendents, principals, teachers, janitors, caretakers, attorneys, architects, and any other personnel deemed necessary by the board, and to define the duties and fix the compensation of each.

SDCL 13-43-4 reads as follows:

A teacher shall be employed only upon written contract signed by the teacher and, in common school districts, by at least two members of the board, and in independent school districts by the president and clerk of the board.

SDCL 13-43-6 reads as follows:

The contract shall specify the date at or about which the school shall begin, the term of employment, the wages per month, and the time of payment thereof; such contract shall be signed in duplicate and one copy filed in the office of the clerk and the other retained by the teacher. Such contract may be issued covering any period of years over which a teacher holds a certificate which will remain valid without renewal.

There can be numerous reasons why a probationary teacher should not be reemployed and the school board's policy of evaluation of teachers may be minimumly related to the basic reason or reasons for nonreemployment. It is my opinion based on the above cited statutes that the exclusive authority to employ or not to employ personnel lies with the duly constituted school board and that the Commissioner of Labor and Management Relations only has authority to make decisions under SDCL 3-18-15.2 covering the specific point raised in the grievance proceedings and does not have authority to make a decision which would affect the employment of probationary teachers. Therefore, the answer to your Question No. 1 is, NO.

It is my opinion that the granting of benefits under the continuing contract statutes is vested exclusively in the school board, and therefore, the answer to your Question No.2 is, NO.

With reference to your Question No.3, SDCL 13-43-10 reads as follows:

Any teacher who has been employed by any board of education of any school district in this state for at least two successive years shall be notified in writing by the board of education on or before the first day of April of the current year of the board's determination not to renew the teacher's contract for the ensuing school year, and failure to give such written notice on or before said date shall constitute an offer on the part of the board to renew the contract for the ensuing school year under the same terms and conditions as the contract for the then current year. Different: terms and conditions may be mutually agreed upon by the board and teacher at any later time.

The phrase "at least two successive years" was determined in 1957-58 AGR 163 to mean that a teacher must have completed two consecutive (successive) years of employment and would then be eligible for the benefits of the continuing contract law during the third year of employment, however, our Supreme Court in Blood v. Spring Creek Common School District, 78 S.D. 580, 105 N.W. 2d 545 held differently. In this case the teacher had a written contract for the school years 1953-54 and 1954-55. The teacher was not offered a new contract for the school year 1955-56 and was not notified in writing on or before the first day of April, 1955, of the school board's determination not to renew her contract for the ensuing school year. Based upon the 1957-58 AGR 163 Attorney General's Opinion, the teacher would not have acquired any rights under the continuing contract law and no notice in writing would have been necessary on or before April 1, 1955. On or before April 1, 1956 would have been the required date to give written notice of the school board's determination not to renew the teacher's contract. Our Supreme Court held, however, that the school board had not complied with the giving of the statutory notice on or before April 1, 1955, and, therefore, the teacher was entitled to the contract for the school year 1955-56. it appears, therefore, that based upon the Supreme Court decision, the written notices required by the continuing contract statutes must be given when the teacher is in the second year of employment if the school board does not wish such a teacher to acquire rights under the continuing contract statutes.

In answer to your specific Question No.3, it is my opinion that a teacher acquires a right under the continuing contract statutes if proper written notices and procedures required by SDCL 13-43-9.1, 13-43-10, 13-43-10.1 and 13-43-11 are not pursued by the school board when a teacher is in his second successive year of employment.

Respectfully submitted,

Kermit A. Sande
Attorney General