March 3, 1980

Dr. James O. Hansen 
State Superintendent 
Division of Elementary and Secondary Education 
Kneip Building 
Pierre, South Dakota 57501

Official Opinion No. 80-14

Continuing Contract Law

Dear Superintendent Hansen:

You have requested an official opinion from this office in regard to the following factual situation:

FACTS: 

School District 'A' hired a beginning teacher in November of 1977.  The teacher completed the 1977-78 school year.  A subsequent contract was given to this teacher for the 1978-79 school year and the teacher completed that full year.  A further contract was given to the teacher for the 1979-80 school year.

Based upon the above facts, you have asked the following question:

QUESTION: 

Does the teacher in the example come under the provisions of the continuing contract law during the 1979-80 school year or is that teacher precluded from coverage until a contract for the 1980-81 school year has been issued?

SDCL 13-43-9.1 provides: 

On or before the third Monday in March, the school board shall notify in writing a teacher who is in or beyond the third full term of employment in a school district of its intention not to renew the teacher's contract, or the superintendent or school administrator shall so notify the teacher of any intention on his part to recommend to the board that it not renew the  teacher's contract.  The board, of if applicable the superintendent or other administrator, shall, as soon as practicable and upon written request of the teacher, make available to the teacher for review his personal evaluation file, advise him in writing of the reason on which the intention not to renew or not to recommend for renewal is based, and afford the teacher an informal, private conference before the board, or, if applicable, before the superintendent or other administrator. 

This provision shall in no manner restrict the board in taking action, or the superintendent or other school administrator in making recommendations to the board, based on relevant circumstances which occur within twenty-one days of the notice required in this section, but, in such event, notice thereof shall be given to the teacher as soon as practicable. 

All teachers shall be evaluated and given notice of any deficiencies during each semester of the first two full terms of employment.  (Emphasis supplied.)

Resolution of this question depends entirely upon the definition of the phrase 'full term of employment.'  In the example you present the first contract received by the teacher was for a period of time less than a full school year.  Examination of judicial authorities on this question is of limited assistance since each case construes specific state laws that are often markedly different from the language used in SDCL 13-43-9.1.

It is logical to conclude that when dealing with a school system, 'full term of employment' means the ordinary school term. The use of the adjective 'full' in the phrase leads to the conclusion that the Legislature intended something other than the teacher's contract term of employment, because any teacher completing a truncated school term but nevertheless fulfilling the term of his or her contract could be said to have completed the 'term of employment.'

I cannot conclude that the Legislature intended the word 'full' as a superfluous word.

The history of the present statute is of assistance in identifying the present legislative intent.  The predecessor of the present version of SDCL 13-43-9.1 read:  'Any teacher . . . who has been employed . . . for at least two successive years.  . . .' In 1958 the then Attorney General interpreted this statute to mean that a teacher would have had to complete two years of employment and would not be entitled to continuing contract rights until the teacher was in the third full school term.  See 1957-58 Attorney General's Report, page 163.  This interpretation was overruled by the South Dakota Supreme Court in Blood v. Spring Creek Common School District, 78 S.D. 580, 105 N.W.2d 545 (1960), where the court held that a teacher must be given notice of non-renewal during the second year of employment.  The South Dakota Legislature addressed this matter again in 1975.  Reference to the 1975 House Journal pages 382 and 726 reveals that the original bill was amended to change  the phrase 'who is in the second full term of employment . . .' to the language in the present statute:  'who is in or beyond the third full term of employment.'  It is clear that the Legislature intended that the result reached in Blood v. Spring, supra, not be applied to the present statute to avoid the situation where a teacher who has been employed for one month plus one school year would have the protection of the continuing contract law.

The answer to your question is that the teacher in the example presented is not presently covered by the continuing contract law.

Respectfully submitted,

Mark V. Meierhenry
Attorney General