STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL
June 28, 1973
Robert T. Mullally
Director of Personnel
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 73-24
Personnel Policy Board's authority to pass regulations
Dear Mr. Mullally:
You have asked for an opinion on the following factual situation:
During the last session of the 'Legislature, Senate Bill No. 71 was passed which established a state-wide merit system of personnel management for most state employees. Section 15, paragraph (5) of that Act empowers the Personnel Policy Board, as created by the Act, to make "Non-conflicting rules on sick leave, vacation leave, and leave of absence for employees as stipulated in SDCL 3-6-6, 3-6-7, 3-6-9 and 3-6-10, and other fringe benefits."
In connection with this situation, you have asked:
Under this section, is it legal for the Board to specify certain types of use of sick leave (SDCL 3-6-7) or vacation leave (SDCL 3-6-6) such as maternity leave, funeral leave, or parental sick leave to nurse ill children or spouses? Would these items qualify as "non-conflicting rules," would they come under "other fringe benefits," or are they specifically illegal?
SDCL 3-6-7 provides:
Sick leave-Accrual and accumulation-Proof of sickness- Vacation leave used for sickness.-In addition to the leave of absence for vacation as provided in SDCL 3-6-6, each employee of the state shall be entitled to fourteen days leave of absence for sickness without loss of pay, exclusive of Saturdays, Sundays and holidays, for each year he is in the employment of the state. Leave of absence for sickness shall be accrued on a monthly basis and cumulative to the extent of that which may be earned in a period of time not exceeding six years of regular and continuous state employment. All leave of absence for sickness in excess of two consecutive days must be supported by a medical certificate. No employee shall be entitled to more than his accrued and earned leave of absence for sickness without first using up any and all of his accumulated and earned leave of absence for vacation.
SDCL 3-6-6 provides:
Vacation leave-Accrual and accumulation.-Every state employee shall be allowed____ days of absence for vacation with pay. Suih leave of absence for vacation shall be accrued on a monthly basis and cumulative only to the extent of that which may be earned in a period of time not exceeding two years of regular and continuous state employment. No advanced leave of absence for vacation with pay may be granted at any time. Employees who retire, voluntarily resign, or are discharged due to lack of work shall receive payment for unused vacation time. (Extraneous material not relevant to this opinion has been deleted from this statute).
The discretion granted the Board to pass rules relating to sick leave and vacation leave, is not plenary. The Board can pass only those rules that are "non-conflicting" with existing statutes. For employees of the State of South Dakota, sick leave and vacation leave are statutory benefits, rather than discretionary by rule of the board. Therefore, the use of these benefits must be based upon interpretations of the statutes, rather than upon board rules.
The sick leave statute has been interpreted many times before. In 1945-46 AGR 128, it was held that sickness is "any affection of the body which deprives it temporarily of its power to fulfill its usual functions." In that opinion, it was held that a woman may use sick leave for confinement: caused by child birth. In 1951-52 AGR 417, it was held that the plain meaning of the statute was that sick leave was to be used only for the benefit of the state employee when he himself was sick.
On the other hand, this office has held that vacation leave may be used at the discretion of the employee. For example, in 1933-34 AGR 500 and 1939-40 AGR 274, it was held that employees may use their vacation leave while they are actively employed in the military service or by the National Guard. Similarly, it was held in 1939-40 AGR 698 that an employee may take his vacation leave in two or more installments.
The answer to your first question is that sick leave may be used for child birth or pending child birth. Sick leave may not be used to attend funerals or to nurse ill children or spouses. Vacation leave may be used for any of these purposes with or without Board rules allowing such uses.
The purpose above, which are forbidden by statute, cannot be allowed by rules of the Board.
However, the Board does have the authority in Section 15 of the Act: to adopt a rule defining what constitutes "hours worked." If the Board wished, it could define such things as coffee breaks, travel to a different duty station, or attending a funeral of certain specified relatives or state officers and employees, to mention a few examples, as "hours worked." Such a rule would not be in conflict with the statutes regulating vacation leave or sick leave.
Respectfully submitted,
Kermit A. Sande
Attorney General
