STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL
December 31, 1975
Mr. Thomas C. Todd, Superintendent
Division of Elementary & Secondary Education
State Capitol Building
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 75-197
Additional compensation authorized for state employee performing services outside regular scope and hours of employment
Dear Mr. Todd:
You have requested an opinion based on the following factual situation:
"X" is a full time state employee of Division "A" and his hours of employment are from 8-12 A.M. and 1-5 P.M., Monday through Friday. "X" has accumulated twenty days of vacation leave pursuant to SDCL 3-6-6. "X" has been requested by another division of state government, Division "B," to serve as a consultant on a special project, the duties of which are not part of his regular employment. "X" would not be required to keep a regular schedule and would be paid at an hourly rate.
Your questions are as follows:
1. May "X" take vacation leave, work evenings, Saturdays, Sundays and holidays for Division "B" and be paid for such services?
2. Assuming Division "A" has a policy of permitting professional employees to engage in professional activities outside of the division for not more than four working days per month, would Division "B" be able to contract with "X" for consultant services during those four days and compensate him therefor?
3. If the answer to question number 2 is NO, may Division "B" contract with "X" to perform consultant services on weekends and holidays provided such activity does not interfere with his assigned duties?
The following statute must be considered in answering each of your questions.
SDCL 3-8-4. 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.
My predecessors have on numerous occasions been requested to interpret this provision. A 1967 opinion stated that a member of the South Dakota Law School faculty could serve as advisor to the South Dakota State Compilation Commission and be compensated therefor if the services performed were on a part-time basis and outside of the usual working hours and course of employment at the Law School (1967-68 AGR 171). 1943-44 AGR 215 also authorized additional compensation to a state employee for services performed after regular working hours and which were not part of his regular employment duties.
In summary, additional compensation paid a state employee for employment unrelated in time or duty to his regular employment does not constitute "dual compensation" under the provisions of SDCL 3-8-4.
With regard to your first question I have hereinbefore partially answered the same. Mr. "X" may under the conditions presented in your factual situation contract with Division "B" and work evenings, Saturdays and Sundays. However, the same cannot be said for vacation time and holidays. I refer to the 1949-50 AGR 322, wherein my predecessor ruled as to the legality of a state highway employee using vacation time to work as a legislative employee:
The granting of vacations is sustainable on the ground of the beneficial effect upon the public service and are not considered as constituting a gratuity or donation.
In the case stated by you the employee would not be taking a vacation from employment by the state. He would merely cease to work for one state agency while working for another state agency. I agree with your conclusion that the employee may not be legally paid by both agencies for the same period of time.
Although I have some reservations as to the validity of the distinction which has been drawn in former opinions between secondary employment during (1) vacation time and (2) evening and weekends, I will leave further clarification of the intent of SDCL 3-8-4 in this regard to the Legislature. Therefore, my answer to your question number 1 is: "X" may contract with and be compensated by another state division for evening and weekend work but may not be compensated by said division for work performed during vacation leave and holidays.
As to the second question you ask, since I have no information as to how this "policy" was effectuated I decline to answer it. With respect to your third question the answer is YES as to weekends and NO as to holidays.
Respectfully submitted,
William Janklow
Attorney General
WJJ:DOC:rw
