STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL
June 26, 1974
Francis B. Nickerson
Acting Commissioner on Higher Education
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 74-24
Legality of additional compensation paid to a state education employee who is otherwise employed by state government.
Dear Mr. Nickerson:
You have asked for an official opinion based on the following factual situation:
In December, 1973, the Dean of the School of Law at the University of South Dakota, resigned his position to accept appointment as Judge in the First Circuit of the State of South Dakota. As Dean, he had also had the duty of teaching one course. Following the Dean's resignation, the School of Law was unable to obtain a replacement for the teaching assignment for the 1974 spring semester. Approval of the appointment of the former Dean (then Judge) as Adjunct Professor of Law was requested and obtained from the Chief Justice of the South Dakota Supreme Court.
Specifically, your question is:
May additional compensation be paid by a state educational institution to a person otherwise employed by state government when the compensation is in return for limited service which uniquely enhances the educational program of the institution, is not in conflict with the regularly scheduled duties of the employee, and the arrangement is agreed to by the appropriate appointing authorities?
The following relevant statutes must be read and interpreted in pari materia (i.e., with reference to each other).
SDCL 3-8-1. Constitutional officers to devote full time to office -Compensation limited to salaries-Businesses engaged in prior to taking office.-The governor, judges of the Supreme Court and of the circuit courts, attorney general, secretary of state, state treasurer, state auditor, commissioner of school and public lands, and superintendent of public instruction shall devote full time to the duties of their respective offices and such officers shall not be entitled to, or authorized to take or receive for any of their official services any other compensation, emoluments, or perquisites than the salaries provided by law. Said constitutional state officers shall, however, be authorized to retain an interest in a business or occupation that said officer was engaged in prior to taking office, provided, however, that said business or occupation does not cause the creation of a benefit or the making of a profit directly or indirectly by the use of state moneys or using the same for a purpose not authorized by law.
SDCL 3-8-3. State officers restricted to salaries provided.-It shall be unlawful for any officer receiving a salary from the state to keep or retain any money, emolument, fee, or perquisite, paid to or received by him for the performance of any duty or duties connected with his office, or in any manner paid to him as such officer or by reason of his holding such office, it being the true intent and meaning of this section that no officer receiving a salary from the state shall keep or retain any money, emolument, fee, or perquisite paid to him by reason of his holding such office, other than the annual salary payable to such officer as provided by the Constitution.
SDCL 3-8-4. Dual compensation prohibited.-No person receiving a salary or per diem payable out of the state treasury or from the funds of any state institution or department, shall, during ,the period for which such salary or per diem has been or is to be paid, receive any other salary or per diem from the state or any institution or department thereof.
SDCL 3-8-1 seeks to assure that outside employment will not interfere with state office duties, and since you indicated that the law school employment is only performed outside of the circuit court's regular sessions, there is no conflict. SDCL 3-8-1 does not expressly prohibit outside employment, indeed it specifically allows retention of a prior occupation as long as that occupation is not reaping profits from state moneys. Clearly the receipt of a fixed educational salary is not in violation of that section.
Both SDCL 3-8-1 and 3-8-3 prohibit a state officer from receiving any money or benefits other than his salary "for any of their official services" (3-8-1) or "for the performance of any duty or duties connected with his office." (3-8-3). Thus, compensation for the state office is limited to the salary for that office and no more. Neither statute prohibits the receipt of money for outside employment totally unrelated to that state office.
In interpreting similar language in the state Constitution, the South Dakota Supreme Court reached the same conclusions. They held that an attorney general could receive additional compensation as an appointed member of the Securities Commission since those additional duties were in no way connected with his constitutional office. "These (Commission duties) are not duties connected with the office of Attorney General, but are of an administrative character, and wholly foreign thereto." State v. Reeves, 44 S.D. 612, 184 N.W. 1007 (1921).
SDCL 3-8-4 would, if read alone, appear to prohibit receipt of the law school salary. When read in conjunction with the previously quoted statutes, however, the obvious legislative intent was to prohibit only that outside secondary employment which conflicted with, benefitted from, or was influenced by, the primary state employment.
Numerous past opinions of the Attorneys General are consistent with this interpretation. One of the most recent ones, in 1967, stated that members of the South Dakota Law School faculty could be paid additional compensation for their part time work as advisers to a South Dakota Statute Compilation Commission. This extra compensation came from that statute commission and was for work performed outside their usual working hours and course of employment at the law school. (Opinion, April 11, 1967.)
Based on these precedents, and a conjunctive interpretation of these statutes, it is my opinion that the additional compensation paid under your particular set of circumstances is not prohibited.
Respectfully submitted,
Kermit A. Sande
Attorney General
