STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

March 12, 1971

Norman D. Sell
Commissioner of Administration
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 71-10

Validity of Board of Finance Regulation No. 40.00800-01

Dear Mr. Sell:

You have asked whether Board of Finance Regulation No. 40.00800 and 40.00801 are in violation of SDCL 3-6-6. The regulations in question provide that an employee may not accrue annual leave when he is on annual leave and terminating employment. In other words, an employee may accrue annual leave, even when he is on vacation, if he returns to his job. However, if he gives notification that he is terminating employment at the end of his vacation, he cannot accrue additional annual leave after the last day he works, even though he remains an employee of the state until his annual leave is used up.

SDCL 3-6-6 is the statute which provides that every state employee shall be allowed a certain number of days leave of absence for vacation with pay each year. Such leave of absence is to be accrued on a monthly basis and is cumulative for two years.

Although this exact question has never been answered by an Attorney General's Opinion, 49 AGR 386 and 65 AGR 114 are pertinent. In those opinions, the Attorney General held that an employee whose resignation was to become effective on the last day of his vacation, remained an employee of the state during his vacation.

I concur in those opinions, and it is further my opinion the statute in question does not give the Board of Finance any guidelines authorizing discrimination between employees on this basis. An employee of the state retains all the rights and responsibilities of his employment irrespective of the fact that he is on vacation. To discriminate against those who delay their vacation until their work is completed would place the conscientious employee in an unfair position with an employee who takes his vacation and gives notice of resignation on the last day of his vacation.

To reiterate, it is my opinion that irrespective of Board of Finance Regulations 40.00800 and 40.00801, an employee may accrue annual leave during any period of time in which he is employed by the state, subject, of course, to other annual leave regulations.

Respectfully submitted,

Gordon Mydland
Attorney General