January 6, 1984

Mr. Phillip O. Peterson 
Union County State's Attorney 
Post Office Box 511 
Beresford, South Dakota 57004

OFFICIAL OPINION NO. 84-01

Purchase of warning equipment by county

Dear Mr. Peterson:

FACTS:

You have requested an official opinion on behalf of the Southeastern District  of the Emergency and Disaster Service organization. 

Some small cities in South Dakota cannot include in an annual budget the full amount to buy warning equipment for the city.  It is possible that such equipment could be purchased if budgeted on a multi-year plan.

Concerning this, you have asked the following question:

QUESTION: 

Is it legal for a county to buy warning equipment for a city in that county and then have the city prorate the cost back to the county over a five-year period?

Emergency and disaster service in South Dakota is made a responsibility not only of the state, but of the counties as well.  SDCL 33-15-10 requires a state comprehensive plan, while SDCL 33-15-26 requires each county to establish a local organization and develop an emergency plan in accordance with the state plan. Likewise, counties may join together with other counties to form emergency and disaster service districts (SDCL 33-15-33) and each county may appropriate money out of its general fund to pay expenses of such district.  Under the authority of SDCL 33-15-37, each district organization for emergency and disaster service may establish a special emergency and disaster fund in the office of the county treasurer of the county where the  district office is located.  This fund is a revolving fund into which reimbursements from any source may be deposited.

As this office held in Official Opinion 77-88 municipalities are no longer authorized to become involved in the activities of civil defense districts by the amendment of SDCL 33-15-33.  As noted in that opinion, however, a city may enter into a joint cooperative agreement under the Joint Powers Act. SDCL 1-24.

In answer to your question it is my opinion that pursuant to SDCL 1-24-3 the city and county in question may enter into a joint cooperative agreement which in effect spells out the manner of financing between the municipality and the county through its EDS revolving fund.  In accordance with SDCL 1-24-6 such agreements, since they would involve also the functions of the State Emergency and Disaster Office, (SDCL 33-15-13) must be submitted to the Attorney General for his approval with the concurrence of the Governor.

Respectfully submitted,

Mark V. Meierhenry
Attorney General