(dissenting).
I dissent. In my opinion, Department, the circuit court, and the majority have failed to give proper deference to Board’s decision.
1. Adler’s grievance was not filed in a timely manner.
I agree that Department erred in finding District had waived its defense of failure to timely file grievances, but dissent as to the majority’s conclusion that both grievances were filed in a timely manner.
The record indicates Cox filed her grievance within thirty-five days of her discovery that District gave credit for nonteaehing experience and that she had received no credit for her prior non-teaching experience. Therefore, I agree Cox’ grievance was filed in a timely manner.
However, as the majority recognizes, “[a]s to Adler, there was conflicting testimony as to whether she understood at the time she was hired that she was not being given full credit for her years at DSS.” In response to the question “you were aware when you were hired, were you not, that you were not given a full credit for your past work experience,” Adler answered, “[tjhat’s correct.” At the very least, Adler’s admission she knew at the time she was hired she had not been given full credit for her past work experiences required her to exercise “reasonable diligence” to investigate any alleged violation. Instead, she waited three years to even inquire how many years she had been credited with.
Contrary to majority’s claim of review under a clearly erroneous standard, whether a grievance was timely filed is a question of *875fact, review of which is restricted to determining the legality of Board’s decision. Moran v. Rapid City Area Sch. Dist., 281 N.W.2d 595, 599 (S.D.1979). Where there was conflicting testimony as to when Adler discovered or through reasonable diligence should have discovered the alleged violation, Board’s determination carried a strong presumption of being made in good faith. Jones v. Sully Buttes Sch., 340 N.W.2d 697, 700 (S.D.1983). Adler has failed to carry her burden of showing the decision was arbitrary, capricious or an abuse of discretion due to lack of substantial evidence to support Board’s decision. Moran, 281 N.W.2d at 599. Therefore, I dissent as to the majority’s finding that her grievance was filed in a timely manner.
2. Department failed to give the proper deference to Board’s decision and applied an incorrect standard of review.
This court has previously recognized that school boards are part of the legislative branch of government:
School Boards are creatures of the legislature and are part of the legislative branch of government. Therefore, the judiciary may not invade the province of the school board’s decision making unless such decision making is done contrary to law.
Moran, 281 N.W.2d at. 598 (emphasis added); Strain v. Rapid City School Board, 447 N.W.2d 332, 338 (S.D.1989).
Moreover, we have previously stated:
‘The constitutional separation of powers cannot be done away with by legislative action, (citations omitted) Consequently, [SDCL 13-46-6], providing for de novo trials when county school board matters are appealed to the circuit court may not be given a literal construction. To do so would be to presume that the legislature intended to confer upon the courts powers inconsistent with the discharge of their inherent judicial functions. This we may not do.’
Mortweet v. Ethan Bd. of Ed., Davison Cnty, 90 S.D. 368, 372, 241 N.W.2d 580, 582 (1976) (quoting Dunker v. Brown Co. Bd. of Ed., 80 S.D. 193, 203-204, 121 N.W.2d 10, 17 (1963)); Tschetter v. Doland Bd. of Ed., 302 N.W.2d 43, 48 (S.D.1981). The majority opinion recognizes this separation of power by citing to Dale v. Board of Ed., 316 N.W.2d 108 (S.D.1982). “The constitutional separation of powers cannot be done away with by legislative action.” Id. at 111.
However, the majority then mistakenly applies the clearly erroneous standard of SDCL 1-26-36 for review of factual findings by an agency rather than properly considering the legality of Board’s decision. Kellogg v. Hoven Sch. Dist., 479 N.W.2d 147, 153-55 (S.D.1991) (Miller, C.J., Henderson, J., dissenting); Rininger v. Bennett Co. Sch. Dist., 468 N.W.2d 423, 429 (S.D.1991) (Henderson, J., dissenting); Dale, 316 N.W.2d at 115-16 (Henderson, J., dissenting in part); Busker v. Board of Ed. of Elk Point, 295 N.W.2d 1, 2-3 (S.D.1980); Moran, 281 N.W.2d at 599.
Moreover, the majority opinion fails to recognize that as the judicial branch of government may not invade the province of the legislative branch by substituting its judgment for that of a school board, neither may the executive branch, in the form of the Department of Labor, invade the province of the legislative branch by substituting its judgment for that of a school board. Such is the result of the majority opinion, which fashions a type of de novo review under SDCL 3-18-15.2 by asserting Department’s order is “based upon its own investigation and hearing.” While Department may conduct its own investigation and hearing, its review is limited to determining the legality of Board’s decisions.*
Additionally, the decisions cited by the majority to support de novo review of grievances filed against school boards, McCauley v. South Dakota Sch. of Mines & Tech., 488 N.W.2d 53 (S.D.1992) and Kleinsasser v. Rapid City, 440 N.W.2d 734 (S.D.1989), involve employment decisions by the South Dakota Board of Regents and the Rapid City *876Water Department, not local school boards. These decisions are clearly inapplicable to this case.
Furthermore, by applying different standards of review depending on whether a teacher appeals a school board decision directly to the circuit court under SDCL 13-46-1 or to Department under SDCL 3-18-15.2, the majority is encouraging both anomalous results and forum shopping by teachers. Accord, Selle v. Pierce, 494 N.W.2d 634, 637 (S.D.1993) (stating South Dakota has an interest in discouraging forum shopping).
• When reviewing a school board decision under SDCL 3-18-15.2, Department and the circuit court must give deference to Board’s decision. They may reverse only if there is a lack of substantial evidence to support a board’s decision, thereby showing a board acted arbitrarily, capriciously or abused its discretion. Moran, 281 N.W.2d at 599. The same applies to this court.
3. Department failed to give the proper deference to Board’s decision in determining whether the District inequitably applied the term “teaching experience” in crediting past experience for salary placement.
As the majority recognizes, “whether the District inequitably applied the term ‘teaching experience’ is a question of fact.” Therefore, Board’s decision may be reversed only if it was arbitrary, capricious or an abuse of discretion.
The majority clearly acknowledges there was “conflicting testimony concerning District’s prior application of ‘teaching experience.’” Where there was conflicting testimony, Department and majority must defer to Board’s decision that District applied the term “teaching experience” equitably. Dr. Pam Sessler, the current assistant superintendent of personnel, testified it was not District practice to give personnel credit for prior work experience outside of dealing with children in the K-12 age group. Dr. Gushwa testified the District practice was to give credit for work experience serving K-12 students, not experience related to adults. Moreover, she testified that although she could no longer recall specific names, there were librarians in the District who had library experience at the college level and had not received credit for that prior experience. Dr. John Harris, District’s superintendent, testified that District policy was to give credit only for prior work with children in K-12 age range.
Moreover, the burden of proof in cases such as this is on the party who is alleging the violation. Rininger, 468 N.W.2d at 425. The burden of proof is not sustained when the probabilities are equal. Mehlum v. Nunda Cooperative Ass’n, 74 S.D. 545, 551, 56 N.W.2d 282, 285 (1952). The balanced evidence presented in this record simply does not sustain Cox’ and Adler’s burdens of showing District inequitably applied credit for prior experience.
I dissent, as Department failed to show Board’s decision as to whether District had inequitably applied the term “teaching experience” in crediting past experience was arbitrary, capricious or an abuse of discretion. Clearly there is substantial support for Board’s refusal to give Cox no prior “teaching” experience credit for her time as library director at Citibank; and, similarly, Board had good reason to limit Adler’s credit to ten of her seventeen years with DSS. See City of Winner v. Bechtold Inv., Inc., 488 N.W.2d 416, 418 (S.D.1992) (stating we will not seek reasons to reverse trial court’s findings). It appears to me that Department and the majority are improperly searching for reasons to reverse the Board.
4. Department had no authority to change claimants’ salary rates.
“[Ujnder SDCL 3-18-15.2 the Director [of the Department] has authority to act only on grievances that do not involve the exercise of an executive or legislative power of the governmental agency or the performance of a governmental function.” Kierstead v. City of Rapid City, 248 N.W.2d 363, 366 (S.D.1976). The setting of teachers’ salaries is a legislative function that cannot be delegated. Id.
The majority attempts to equate this case to Rininger and differentiate it from Kier-stead by claiming Department did not “im-permissibly invade any salary-setting legisla*877tive power or governmental function.” Rininger, 468 N.W.2d at 427 (citing Kierstead, 248 N.W.2d at 366). I disagree.
In Rininger, this court found Department had not exceeded its authority because its order did “not in any manner change the salary he would have been paid had the District' hired him.” 468 N.W.2d at 427. That is materially different from what the majority sanctions here. Department’s order changes the salaries claimants received at the time they were hired, specifically what this court said Department had no authority to do in Rininger.
Majority fails to recognize that Department’s order exceeds its authority and im-permissibly infringes on Board’s legislative power to determine teacher salaries. Again, it would seem that the majority seeks to become a “super school board” and manage the affairs of every school district in this state, rather than giving appropriate deference to the decisions of local citizens who have been given that authority by the electorate. See Riter v. Woonsocket Sch. Dist., 504 N.W.2d 572, 577-79 (S.D.1998) (Miller, C.J., Henderson, J., dissenting); Kellogg, 479 N.W.2d at 153-155; Rininger, 468 N.W.2d 423, 428-430.
I am authorized to state that HENDERSON, J., joins in this dissent.
It is incumbent on the school boards of this state to begin making adequate records for appellate review.