October 29, 1985

TO:       All County Commissioners 

FROM:     Mark V. Meierhenry

OFFICIAL OPINION NO. 85-46

RE:  Minimum limits for liability insurance for county peace officers

This opinion is issued pursuant to SDCL 7-12-26.1 and the statutory duty therein assigned to the Attorney General to fix minimum liability limits for insurance for county peace officers, sheriffs, and deputies and employees thereof.  However, before fixing such a minimum limit, it is first necessary to determine in what situations county commissions are required to purchase such liability insurance.

SDCL 7-12-26.1 provides: 

The board of county commissioners shall have power to purchase and pay  premiums on insurance covering and insuring county peace officers, including sheriff, which insurance shall insure against personal liability as a result of errors and omissions in the performance of official duties.  The board of county commissioners shall purchase and pay premiums on such insurance for deputies and employees of those county peace officers for which the board may determine the insurance necessary.  The premiums shall be paid from the county general fund.  Minimum liability limits for such insurance necessary, shall be fixed by the Attorney General.

The first sentence of the statute is clearly an explicit grant of power to the boards of county commissioners within the state of South Dakota to purchase and pay premiums on liability insurance for county peace officers, including the sheriff.  Note that exercise of the power is not mandated by the statute. Therefore, purchase of the insurance is not compelled but is left in the discretion of the various boards of county commissioners.

Some confusion is created in interpretation of the second sentence of the statute in a manner that is in harmony with its other provisions.  The sentence reads, 'The board of county commissioners shall purchase and pay premiums on such insurance for deputies and employees of those county peace officers for which the board may determine the insurance necessary.'  (Emphasis added).  On its face, this clause can be read as a requirement that the boards of county commissioners purchase insurance for deputies and employees of county peace  officers and that the board determine the amount of insurance coverage necessary for them.  This interpretation creates two problems.  First, it is inconsistent with the first sentence of the statute which, as I have already stated, leaves the discretion with the board of county commissioners of whether or not to purchase such insurance for the peace officers and sheriff of the county.  I can conceive of no reason why the legislature would compel the purchase of liability insurance for deputies and employees of county peace officers and not for county peace officers themselves who are obviously exposed to greater risks of liability.  Second, reading the statute so as to allow the board of county commissioners to determine the amount of insurance necessary for deputies and employees raises a conflict with the last sentence of the statute which clearly places the duty upon the Attorney General for fixing minimum liability limits for the insurance purchased.

It follows that the correct interpretation of the second sentence of the statute merely compels the board of county commissioners to purchase and pay the premiums for liability insurance only for those deputies and employees of county peace officers for which the board determines the insurance is necessary. This reading of the sentence leaves with the board of county commissioners the power to determine which deputies and employees require liability insurance and avoids a conflict with the Attorney General's duty to fix the minimum liability limits of any insurance purchased.  I believe this  makes for a more consistent reading of the statute and is one that fulfills the requirement that statutes be read in a manner that will fulfill their intended purposes.

Therefore, pursuant to my statutory duty, it is my determination that if a board of county commissioner elects to insure any county peace officer, sheriff, or deputy or employee thereof against personal liability as a result of errors and omissions in the performance of official duties, the minimum liability limits of such insurance shall not be less than $250,000.  It should, however, be noted that this figure merely represents a minimum level of coverage and may not be adequate for the larger counties within the state.

Mark V. Meierhenry
Attorney General