April 8, 1982
Mr. William J. Srstka, Jr.
Attorney at Law
117 East Capitol
Pierre, South Dakota 57501
Mr. Pete Goodwin, Commissioner
Bureau of Personnel
State Capitol
Pierre, South Dakota 57501
Official Opinion No. 82-21
Regents' Personnel Powers
Dear Mr. Srstka and Mr. Goodwin:
You have requested an opinion from this office in regard to the following factual situation:
FACTS:
The South Dakota Supreme Court in its decision, South Dakota Board of Regents v. Meister and Rieger, 309 N.W. 2d 121 (1981) held that the authority of the Board of Regents stems from the executive branch of state government, therefore, by being within the executive branch sphere of power the Board of Regents is constitutionally subject to SDCL 3-6A-12, SDCL 3-6A-37 and 38.
By way of a 1975 resolution, the Board of Regents accepted the authority delegated by the Career Service Commission pursuant to SDCL 3-6A-24 to administer the career service classification and compensation system for career service employees under the jurisdiction of the Board of Regents. Since 1975, an informal arrangement has developed whereby the Board of Regents has assumed the administration of the career service personnel management functions.
Based on the above factual situation, you have asked the following questions:
QUESTIONS:
1. Does the Meister/Rieger decision necessarily affect the prior granted delegation of authority by the Bureau of Personnel to the Board of Regents?
2. Under SDCL 3-6A-24 is delegation of authority by the Bureau of Personnel to the Board of Regents mandated?
3. Who has the authority to hire and fire career service employees?
4. Who should administer the institutional payrolls?
5. Could a joint powers agreement provide an appropriate resolution to many of these questions?
The Board of Regents is given jurisdiction over various state educational institutions and their employees by virtue of the state Constitution and statutes. South Dakota Constitution, Article XIV § 3, and SDCL 13-49-14. The Bureau of Personnel, under SDCL 3-6A-12 has authority to develop programs for and perform administrative functions for the Board of Regents. Such authority may be delegated pursuant to SDCL 3-6A-24 which states:
The personnel commissioner may delegate the administration of this chapter to state institutions and departments throughout the state; provided, however, that the commissioner shall delegate to institutions under the jurisdiction of the board of regents the administration of recruitment, examining and selection of employees for such institutions provided, further, that all such delegated administrative authority is conducted in accordance with the provisions of this chapter and career service commission rules.
Prior to the Meister/Rieger decision and since at least April 15, 1975, the Board of Regents has been administering most of the personnel management functions for career service employees at the Board of Regents' institutions under authority delegated to the Board of Regents by the Bureau of Personnel pursuant to SDCL 3-6A-24. The arrangement between the Board of Regents and Bureau of Personnel has been an informal one. It has never been reduced to writing.
The Supreme Court, in its decision Meister/Rieger, reasoned that because the Board of Regents is within the executive sphere of power, the provisions of SDCL 3-6A-12, 37 and 38 apply to the Board of Regents and allow a career service employee with an unresolved grievance to demand a hearing before the career service commission. The court did not address SDCL 3-6A-24 specifically, therefore, any delegation of administrative functions made thereunder would be unaffected by the decision of the court as long as the right of the career service employee to grieve to the career service commission is preserved.
IN RE QUESTION NO. 1:
The answer to your first question is no, the Supreme Court decision, SDBOR v. Meister/Rieger, does not affect the delegation of authority made by the Bureau of Personnel to the Board of Regents concerning personnel management functions for career service employees.
IN RE QUESTION NO. 2:
It is my opinion that under SDCL 3-6A-24 the commissioner of the bureau of personnel may delegate the administration of all of chapter 3-6A to state institutions if he so desires, but the language of the statute indicates that he must delegate to institutions under the jurisdiction of the Board of Regents the administration of recruitment, examining and selection of employees for such institutions. The answer to Question No. 2 is yes, certain authority must be delegated.
IN RE QUESTION NO. 3:
SDCL 13-49-14 states:
The board of regents is authorized to employ and dismiss all officers, instructors, and employees of such institution, necessary to the proper management thereof, to determine their number, qualifications, and duties, fix the term of their employment, and rate and manner of their compensation, provide for a sabbatical leave on part pay, and provide for a retirement program; provided, that no person shall be employed or dismissed by reason of any sectarian or political opinions held.
It is my opinion that the Board of Regents has the authority, by virtue of SDCL 13-49-14 and the delegation of authority mandated in SDCL 3-6A-24, to hire and fire career service employees provided that such actions are conducted in accordance with the provisions of SDCL 3-6A and the career service commission rules, including the right of the employee to demand a hearing before the career service commission if his grievance is unresolved by departmental procedures.
IN RE QUESTION NO. 4:
SDCL 4-9-2 provides in relevant part:
. . . that the bureau of finance and management shall have the authority to establish rules and regulations under which the state board of regents may provide for the processing of payrolls on a local institutional basis, and budgeted funds may be transferred on a monthly basis for this purpose.
The above quoted statute allows the institutional payrolls to be administered on a local institutional basis. While the Bureau of Personnel has the authority to approve the payroll to ensure compliance with SDCL 3-6A, (SDCL 3-6A-30), the Bureau of Personnel does not have any authority to actually administer or process the institutional payrolls.
IN RE QUESTION NO. 5:
You ask if a joint powers agreement could provide the appropriate resolution to many of these questions.
SDCL 1-24-2 states:
Any power or powers, privileges or authority exercised or capable of exercise by a public agency of this state may be exercised and enjoyed jointly with any other public agency of this state having such power or powers, privilege or authority, and jointly with any public agency of any other state or of the United States to the extent that the laws of such other state or of the United States permit such joint exercise or enjoyment. Any agency of South Dakota state government when acting jointly with any public agency may exercise and enjoy all of the powers, privileges, and authority conferred by § § 1-24-2 to 1-24-9, inclusive, upon a public agency. (emphasis supplied)
In my opinion the Bureau of Personnel and the Board of Regents certainly have the option to enter into a joint powers agreement to formalize the currently existing arrangement regarding the personnel management functions for career service employees. Such an agreement would be an appropriate vehicle to responsibility for personnel management functions for career service employees under the jurisdiction of the Board of Regents.
Respectfully submitted,
Mark V. Meierhenry
Attorney General
