STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL
October 19, 1972
Robert T. Mullally
Director of Personnel
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 72-54
Ministerial offirer may not pay employee for hours not worked unless on sick leave or vacation leave; Payments for violations of state employment contracts may be adjudicated by Commissioner of Claims; State employee reinstated after wrongful discharge is entitled to recover unused vacation and sick leave credits.
Dear Mr. Mullally:
You have asked for an opinion on the following factual situation:
Recently I chaired a grievance hearing for Mr. X who had been terminated by agency Y. My decision in the matter was to recommend that Mr. X be reinstated to his position.
Your questions are:
1. Can the State of South Dakota, specifically Agency Y, legally restore back pay to Mr. X, even though he performed no service to the state during the period he was off the payroll?
2. Can the State of South Dakota, through Agency Y, legally restore his annual leave credits which he was forced to take at the time of his termination? The amount of restored annual leave would be specifically that which he was forced to take at the time of his termination. Would this result in dual compensation?
The questions you have asked cannot be answered directly by reference to any South Dakota statute or case. It is extremely difficult to find any case law on the questions you have asked, as most other states have civil service legislation which provides statutory answers to these questions.
Although there is no statutory citation to answer your specific question relating to back pay, the statutes are clear that employees are not to be paid for time not worked. SDCL 3-6-11 requires you to keep a record of all hours worked by each employee, and SDCL 3-6-12 requires you to approve all payrolls. The clear intent of these enactments is that no employee is to be paid for hours not worked, unless he was using vacation or sick leave credits granted by SDCL 3-6-6, 7 and 8.
It is my opinion, in answer to your first question, that no ministerial officer of this state can authorize payments to an employee to cover a period of time the employee did not work unless he was on vacation or sick leave.
All employees of the state are working under employment contracts. SDCL 60-1-2. If there were a violation of that contract by the employer (the State of South Dakota), as for example by discharging an employee because of his exercise of constitutionally protected rights, the employee does have a right to have that contract action adjudicated by the Commissioner of Claims. SDCL Ch. 21-32, "Remedies against the State."
Therefore, it is also my opinion, in answer to your first question, that an employee does have the right to have his claim for back pay adjudicated by the Commissioner of Claims (who is the Chief Circuit Judge in each circuit).
The answer to the first part of your second question is, NO. Annual leave credits are governed by SDCL 3-6-6. This statute specifies the number of hours of vacation leave employees can earn and accumulate. By this specific legislation, the Legislature has placed limitations on vacation leave. A ministerial officer is without authority to change those limits. In this case, since the employee did use his vacation leave and was paid for it, it would be a violation of the law to give him additional vacation leave credit. The answer to the second part of your second question is, YES, this would result in dual compensation. Of course, if an employee is wrongfully discharged, and later reinstated, equity would require that his unused vacation and sick leave credits be returned to him along with all of his other accumulated employee benefits.
Respectfully submitted,
Gordon Mydland
Attorney General
