STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL
January 6, 1971
James W. Fansler, Director
Division of Personnel
State Capitol
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 71-2
Dismissal of State Employees
Dear Mr. Fansler:
You have asked for an official opinion in regard to the following factual situation:
This office has received inquiries as to who shall be considered vulnerable to displacement as a state employee by state officials.
In compliance with SDCL 3-18-15.1 through 15.4, passed by the 1970 Legislature of the State of South Dakota, this office presented to and effected the adoption of a formal grievance procedure by the Board of Finance. Such grievance procedure is to be used by all agencies under the control of the Board of Finance. Also, in accordance with the Administrative Rules and Procedures Act, this grievance procedure, after its adoption by the Board of Finance, was filed with the office of the Secretary of State and published for state employees acknowledgment in section 50.10101 of the "Personnel Handbook."
Your specific questions are:
1. Under what conditions may state employees be replaced by other persons?
2. If a state employee is replaced, does he have an action under the grievance procedure adopted by the State Board of Finance?
Before discussing employees' rights, it would be well to distinguish between a state employee and a state officer. A state officer is a person who holds a position created by the Constitution or the Legislature. An employee is a person holding a position, the duties of which are underlined and which can be changed at the will of the superior. Hudson v. Annear, 75 P 2d 587, 588,101 Colo. 550.
All state employees, in the executive branch, are governed by regulations promulgated by the State Board of Finance. In addition, some departments have special rules which apply only to certain classes of their employees. The conditions under which an employee may be dismissed are covered by the Finance Board's Regulation § 50.00500. Until the regulations are changed, no other reason may be used for dismissing a state employee.
Also, the powers of dismissal are limited by the Federal and State Constitutions. The employment of public employees may not be terminated because they have exercised freedoms secured to them by the Constitution of the United States. The Constitution forbids a decision to terminate employment which is consciously and deliberately based on an employee's otherwise protected speech activity, or his race, or his religion, or his political affiliations. Public employees, except possibly those discharged for being security risks, have the right to be informed of the reasons for the termination of their employment and to have a hearing to contest those reasons. Roth v. Board, 310 F. Supp. 972 (1970).
Although there may be no constitutional right to public employment as such, once a person obtains employment, he has the constitutional right to retain such employ men 1. Whitner v. Davis, 410 F. 2d 24 (1969). "The time is past in which public employment is to be regarded as a 'privilege' which may be extended upon any conditions which public officials may choose to impose." Roth, supra.
In addition, persons coming within the State Police Civil Service system may only be discharged for grounds enumerated in SDCL 3-7-15 and in accordance with the procedures set out in Ch. 3-7. Persons in departments covered by the Merit System may only be separated for cause, curtailment of work, or lack of funds. (Merit System Standards)
To summarize the answer to your first question, the dismissal of a state employee whose job is not an appointive one, can only be accomplished by following state law or Board of Finance regulations. In addition, the law or regulations may not be in terpreted in an arbitrary manner.
The answer to your second question is, YES, but not exclusively.
To explain: An employee who has been dismissed for reasons other than disciplinary action, must follow the grievance procedure outlined under Board of Finance Regulation §50.10101. The employee who has been dismissed for disciplinary reasons may elect to use the same procedure, as it is non-exclusive, or he may elect to institute an appeal under regulation§ 50.10100.
The grievance procedure (§50.10101) consists of four steps:
1. The grievance must be discussed promptly with the employee's immediate supervisor.
2. If the grievance is unreconciled within one week, the employee shall discuss the grievance with the department head and present him with the grievance in writing.
3. If the grievance is not reconciled by steps 1 and 2 within two weeks from the time the grievance is presented to the immediate supervisor, the employee shall discuss the grievance with the State Personnel Director who shall make a written report of the grievance within one week from the time it is presented to him.
4. If the grievance is unreconciled by the previous steps within the allotted time, the employee may appeal the grievance decision to the Labor Commissioner.
After the procedure reaches the Labor Commissioner, it shall be his duty to conduct a hearing in accordance with the Administrative Procedures Act and to issue an order which shall be binding upon the employee and the governmental agency. SDCL 3-18-15.2. Appeals from the Labor Commissioner's order must be instituted in the circuit court within thirty days. SDCL 1-25-31.
If the dismissal is for an alleged disciplinary reason, the employee also has the right to appeal the action of his employer to the Director of Personnel under Board of Finance regulation § 50.10 100. It will be the Personnel Director's duty to provide for a hearing, conducted according to the Administrative Procedures Act, within twenty days to determine the justification of the employer's action. An appeal from the decision of the Director of Personnel or the State Board of Finance would have to be made to the circuit court within thirty days in accordance with SDCL 1-26-31.
As the aforementioned procedures were established by Board of Finance Regulation, they apply to any person holding a position by appointment or employment with the State of South Dakota. SDCL 3-18-1. An employee does have the right in all cases, provided he follows the correct procedures, to a hearing on his dismissal.
Respectfully submitted,
Gordon Mydland
Attorney General
