August 27, 1990

Mr. Steven J. Britzman
City Attorney, Brookings
P.O. Box 686
Brookings, South Dakota 57006-0686

OFFICIAL OPINION NO. 90-33

Effect of Holiday Designation on Public Employees

Dear Mr. Britzman:

On behalf of the City of Brookings, you have requested my official opinion concerning the following facts.

FACTS:

In July of 1976 the Attorney General for the State of South Dakota issued Official Opinion No. 76-71, which provided that a county does not have the authority to draw regulations which require county employees to work on days designated by SDCL 1-5-1 as a legal holiday. Since the issuance of Official Opinion No. 76-71, the South Dakota Legislature enacted SDCL 1-5-1.1 and SDCL 1-5-1.2 which created Martin Luther King, Jr. Day and Native Americans' Day. In 1990 the Legislature revised SDCL 1-5-1.1, deleting the language which stated that SDCL 1-5-1.1 was "not a holiday from work and all offices of state and local government and public school and institutions shall remain open."

Based upon those facts, you have asked the following question.

QUESTION:

Are Martin Luther King, Jr. Day and Native Americans' Day holidays from work for employees of local government?

IN RE QUESTION:

SDCL 1-5-1, 1.1, and 1.2 provide:

The first day of every week, known as Sunday; the first day of January, commonly known as New Year's Day; the third Monday in January, commonly known as Martin Luther King, Jr., Day; the third Monday in February, the anniversary of the birthdays of Lincoln and Washington; the last Monday of May, commonly known as Memorial Day; the fourth day of July, commonly known as Independence Day; the first Monday in September, commonly known as Labor Day; the second Monday in October, commonly known as Native Americans' Day; the eleventh day of November, known as Veterans' Day; the fourth Thursday in November, commonly known as Thanksgiving Day; and the twenty-fifth day of December, commonly known as Christmas Day; and every day appointed by the President of the United States, or by the Governor of this state for a public fast, thanksgiving, or holiday shall be observed in this state as a legal holiday.

If the fourth day of July, the first day of January, the eleventh day of November or the twenty-fifth day of December falls upon a Sunday, the Monday following is a legal holiday and shall be so observed; and if any such day falls upon a Saturday, the preceding Friday is a legal holiday and shall be so observed.

1-5-1.1 The third Monday in January, to be known as Martin Luther King, Jr. Day shall be observed in this state as a legal holiday. Martin Luther King, Jr. Day is dedicated to the remembrance of Dr. Martin Luther King, Jr. and to the observance and appreciation of the various ethnic minorities who have contributed so much to the state and nation.

1-5-1.2. The second Monday in October, to be known as Native Americans' Day, shall be observed in this state as a legal holiday. Native Americans' Day is dedicated to the remembrance of the great Native American leaders who contributed so much to the history of our state.

As you note, this question has been addressed by this Office in the past. In Official Opinion No. 76-71, the then Attorney General, relying upon a Connecticut Court case Lamberki v. City of Stanford, 40 A.2d 192 (Conn. 1944), concluded that the intent of the Legislature in designating certain days as legal holidays was that "the purpose of such legal holiday should be a day of the cessation or exemption from work." AGR 1975-76 at 608. In addition, that Opinion found that the intent of SDCL 1-5-2 was to establish that legal holidays were not to have the same legal effect as Sundays. "Acts on legal holidays, whether public or private, therefore, became legally valid." Id. While that Opinion may have been correct as far as it went, there are many issues left unaddressed.

First, the plain language of SDCL 1-5-2 provides:

Any public or private business may be transacted or legal process or notices of any kind may be served or published on any of said days or next succeeding days designated herein as holidays, excepting Sundays, provided, that for good cause, a judge in whose court an action has been or is about to be brought, may endorse upon any process or notice permission to serve the same on Sunday, and if so endorsed, service thereof on Sunday shall be valid.

The statute provides that any public or private business may be transacted on any day designated as a holiday except Sunday. It goes without saying that fulfillment of employment obligations by public or private employees is clearly "public or private business." In addition, there are other statutes reinforcing this view.

For example, SDCL 3-6-30 provides:

Holidays other than Sundays enumerated in 1-5-1 are a benefit for any permanent state employee including those who are not scheduled to work the day on which a holiday falls. A permanent employee is eligible for holiday pay if he works at least one shift or is on approved paid leave during the calendar week in which the holiday falls. Part-time employees will receive prorated holiday pay. For payroll and leave purposes, a holiday is no more than eight hours long. [Emphasis supplied.]

The statute set out immediately above was passed by the Legislature in 1986. The title of the Act was "An Act to Clarify Those Eligible for Holiday Benefits and to Declare an Emergency." Review of the statute reveals that it addresses itself exclusively to "permanent state employees." The statute directs that holidays are a benefit for permanent state employees and that the employee is eligible for holiday pay if he works at least one shift or is on approved paid leave on the day in which the holiday falls. "Holiday pay" for permanent state employees is defined by rules of the Bureau of Personnel. See ARSD 55:01:21. Similar provision was made for sheltered workshop employees in facilities operated by the Service to the Blind and Visually Impaired through enactment of SDCL 3-6-29 in 1986.

The foregoing statutes lead me to the conclusion that the Legislature, as the ultimate employer of state employees, has undertaken to set out in statute the effect that working on a legal holiday will have for state employees. The Legislature has provided that when state employees are required to work on holidays, they will receive pay at a rate known as holiday pay. The question of whether local government employees will be paid for similar service is simply not addressed.

It makes sense that the Legislature would confine its enactment, governing employment on legal holidays to its own employees, and leave the relationship between other employers and employees, be they public or private, to those parties.

No one would argue that employers cannot require employees to work on holidays (except, in some instances, for reasons related to the First Amendment). If that were otherwise, vital services relating to electricity, water, medical services, hospital staff, and numerous other public and private activities that go on 24 hours a day, 7 days a week, would have to cease. Official Opinion No. 76-71 will not be read to create that result.

Yet another act of the Legislature militates towards the conclusion drawn here. For many years SDCL 13-26-3 listed certain days upon which school could not be held in the public schools of this State. These days were known as "days of legal discontinuance." Throughout these years there were many variations between the list of holidays enumerated in SDCL 1-5-1 and the days of legal discontinuance set out in SDCL 13-26-3. In 1986, SDCL 13-26-3 was repealed. The effect of that repeal is to establish a legislative intent that school can be held on any legal holiday except Sunday. The Sunday exception arises through the provision of SDCL 1-5-2. Here again, we see the Legislature withdrawing from mandating conditions in the employer/employee relationship in the school district setting as well.

The Supreme Court of Westchester County, New York, had occasion to address this same issue in January of 1976. In the case In the Matter of the Arbitration between the County of Westchester, Petitioner, and Michael Morella, on behalf of the Westchester County Civil Service Employees Association, 85 Misc.2d 251, 378 N.Y.S.2d 952 (1976), the Court considered the effect of a statute placing Martin Luther King's birthday on the third Sunday of January; the statute specifically provided that the holiday could be celebrated only on that Sunday. A collective bargaining agreement between the County of Westchester and its employees addressed the effect of holidays falling upon Sunday. The Court ultimately concluded that the dispute was subject to arbitration. In its discussion of the matter, the Court noted that New York statutes--Section 24 of the General Construction Law--defined public holidays and required the closing of all public offices in the state. In addition, Section 206 of the County Law required that public offices in each county of the state be closed on public holidays. Finally, New York County Law added Saturday as a day when county offices are to be closed for the transaction of business. The Court noted a specific New York public policy against carrying on a public business on Saturdays, Sundays, and public holidays. The Court went on to note the existence of "contractual" as opposed to public holidays. The Court noted that unlike public holidays, contractual holidays do not require the closing of public offices but do require specific pay rates for employees who work on those holidays. What is to be drawn from the New York case is the clear message that if the Legislature intends its designation of public holidays to affect employer/employee relationships in either the public or private sector, it is obliged to say so.

Accordingly, I am of the opinion that while the Legislature has seen fit to designate certain holidays including Martin Luther King Day and Native Americans' Day as legal holidays, it has not determined whether employees of local subdivisions of government can be compelled to work upon those days, the rate of pay they shall receive if they do work, or whether they will be paid if not required to work. In order that the word "Holiday" be given some effect, I am of the opinion that in keeping with Official Opinion No. 76-71, county, city, and other public offices other than schools shall be closed for the transaction of business on those days designated as Holidays including Martin Luther King, Jr., Day and Native Americans' Day. See SDCL 7-7-2 which requires certain county offices to be closed on holidays.

I hasten to point out that negotiated agreements and long-standing policies between public employers and employees may well have created either de facto or de jure property rights to certain pay rates or exemption from work upon specified holidays for certain employees. That can be determined only with reference to the policies in a particular subdivision.

My answer to your question is that while Martin Luther King Day and Native Americans' Day are legal holidays in the State of South Dakota it is a matter for agreement between public, other than state, and private employers and their employees concerning what the effect of that designation may be.

Respectfully submitted,

ROGER A. TELLINGHUISEN
ATTORNEY GENERAL

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