STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

July 9, 1968

Richard A. Duncan
State's Attorney, Hughes County
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 68-4

Salary of Acting Superintendent of Schools

Dear Mr. Duncan:

You have requested an opinion on the following:

"The duly elected and acting County Superintendent of Schools has recently resigned, and the County Board of Education has appointed a person to fill the vacancy until a successor can be elected and qualified.

"The person so appointed is the holder of a bachelor's degree, but does not as yet have a certificate from the State of South Dakota showing eligibility to teach in this state."

You have set forth the following contentions:

"Contention #1: Chapter 39 of the Session Laws of 1967, together with Chapter 15.10 leave no discretion on salaries if the acting superintendent has either a bachelor's degree or a two year elementary certificate.

"Contention #2: Since the person appointed was not elected to the office (and in this case is not qualified to run for election in that he does not have a state certificate) he is at most an acting superintendent, and his compensation shall be as determined by the Board of County Commissioners. This contention classifies an Acting Superintendent as an "Assistant or other clerical help," as set out in the last paragraph of SDC 15.1005 of the 1960 Supp."

You have asked the following question:

"Is the county required to pay a person appointed to fill the vacancy in the office of County Superintendent the salary as set out in Section 15.1001 of the 1960 Supp. to SDC as last amended by Chapter 39 of the Session Laws of 1967?"

SDC 1960 Supp. 15.1001, as amended by Chapter 39, Session Laws of 1967, reads in part as follows:

“…The annual salary of a county superintendent of schools shall be sixty-five hundred dollars for the holder of a bachelor's degree or a degree of higher rank, and fifty-five hundred dollars for the holder of a two-year elementary certificate or certificate of comparative rank. . . . When the office of county superintendent shall become vacant by death, resignation, removal or otherwise, the county board of education shall fill the vacancy by appointment, and the person so appointed shall hold this office until a successor can be elected and has qualified."

In 1963-64 AGR 1, the Attorney General held that the salary of the county superintendent of schools is determined by the qualifications of such person holding such office whether by appointment or by election. The difference in the statutory salary is based upon whether such person is the holder of a bachelor's degree or not. It is my opinion that if the person appointed to fill the vacancy of the county superintendent of schools holds a bachelor's degree, then such person would be eligible to receive the annual salary of sixty-five hundred dollars.

SDC 1960 Supp. 15.1001 as amended also reads in part as follows:

". . . Any person who is the holder of a bachelor's degree and a valid teacher's certificate and who has had at least two years actual experience as a full-time teacher in an elementary or secondary public school shall be eligible to hold the office of county superintendent of schools . . ."

Article IX, Section 7 of the South Dakota Constitution provides that the Legislature shall have authority to prescribe additional qualifications for superintendents of schools.

It is my opinion that a person either elected or appointed must meet the above statutory requirements and anyone not meeting such requirements should not be elected or appointed to the office of county superintendent of schools; however, it is also my opinion that a person not meeting the above qualifications could be appointed acting superintendent of schools and such person's salary would be determined by whether or not such person was the holder of a bachelor's degree.

Respectfully submitted,

Frank L. Farrar
Attorney General