January 24, 1994

James R. Davies
Hanson County State's Attorney
Box 277
Alexandria, SD 57311-0277

OFFICIAL OPINION NO. 94-02

County commissioners' authority to purchase and require a light bar and decals to be placed on the sheriff's county-owned automobile over his objection

Dear Mr. Davies:

You have requested an opinion from this Office based upon the following facts:

FACTS:

Hanson County provides its county sheriff with his official automobile. The county commissioners have decided that all county vehicles should be equipped with warning lights, and the sheriff's vehicle should also have decals on its outside. The highway department has agreed, but the sheriff has not complied with the county commissioners' request.

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

QUESTION NO. 1:

Can county commissioners purchase a light bar and decals to be placed on the sheriff's county-owned vehicle?

QUESTION NO. 2:

Can the commissioners require the sheriff to use this equipment over his objection?

QUESTION NO. 3:

Is the use of appropriate lights on a police vehicle a requirement to allow the operator to disregard stop signs and traffic speed laws?

IN RE QUESTION NO. 1:

SDCL 7-12-12 provides that:

Any county may, at the discretion of the board of county commissioners, furnish any motorcycle, automobile, truck or other vehicle, uniforms and other equipment to the sheriff or his deputies, or both, for law enforcement purposes only.

County commissioners are given statutory authority to furnish an automobile "and other equipment" to the county sheriff. Therefore, since the commissioners in Hanson County have, in their discretion, provided an automobile for the sheriff, they may also buy a light bar and decals to place on the vehicle. Furthermore, in a previous opinion issued by this Office, a predecessor of mine opined that the county may pay for the installation and removal of emergency equipment such as a police radio, antenna and red warning lights, for a sheriff's personally-owned automobile, since this equipment must be used as a requirement of his office. See AGR 68-41. The answer to your first question is "yes," the county commissioners may purchase a light bar and decals for the sheriff's automobile.

IN RE QUESTION NO. 2:

Your second question is whether the commissioners can require the sheriff to use this equipment. Another previous Attorney General opinion addressed a similar question whether county commissioners could require a sheriff to sign a joint law enforcement agreement. My predecessor's response concluded with the opinion that the commissioners could not direct the sheriff to undertake any particular action:

There are no provisions under the South Dakota law which grant authority to county commissioners to control the actions of the county sheriff. The only conceivable method of control the county commissioners would have over a sheriff would be through the power of the purse. AGR 89-30.

Therefore, while the county commissioners have authority to buy the equipment and install it on the vehicle, they have no statutory authority to direct the sheriff to use it. As noted in the previous opinion, the county commissioners do have the power of the purse which provides them some degree of control. Thus, since the county is concerned about potential liability if the sheriff operates the county-owned vehicle without proper emergency equipment, the commissioners could decide to no longer finance an automobile to the sheriff via their discretion under SDCL 7-12-12. Please note that this opinion does not address how such an action by the commissioners would affect the county's liability in times of emergency. However, the requirement of using emergency equipment is governed by statute which is the subject of your final question.

IN RE QUESTION NO. 3:

Your third question regarding whether the use of emergency equipment is required when disregarding traffic regulations is answered by SDCL <185><185> 32-31-1 through 32-31-4. SDCL 32-31-1 provides:

The driver of an authorized emergency vehicle, when responding to an emergency call or when in the pursuit of an actual or suspected violator of the law or when responding to but not upon returning from a fire alarm, may exercise the privileges set forth in <185> 32-31-2, but subject to the conditions stated in <185><185> 32-31-3 and 32-31-5.

SDCL 32-14-1(2) defines "authorized emergency vehicle" as including police vehicles. SDCL 32-31-2 sets out the particular traffic regulations which may be disregarded:

The driver of an authorized emergency vehicle may:

(1) Park or stand, irrespective of the provisions of chapter 32-30;

(2) Proceed past a red or stop signal or stop sign, but only after slowing down as may be necessary for safe operation;

(3) Disregard regulations governing direction of movement or turning in specified directions.

SDCL 32-31-3 then provides:

The exemptions granted in subdivisions (2) and (3) of <185> 32-31-2 to an authorized emergency vehicle apply only if the vehicle is making use of audible and visual signals meeting the requirements of law. However, the exemption granted in subdivision (1) of <185> 32-31-2 to an authorized emergency vehicle applies only if the vehicle is making use of visual signals meeting the requirements of law.

Finally, SDCL 32-31-4 provides:

The speed limit set out in <185><185> 32-25-1 to 32-25-17, inclusive, does not apply to authorized emergency vehicles when responding to emergency calls if the drivers thereof sound audible signals by siren or horn or both and two lighted red lights are displayed to the front or any combination of blue or clear lights which are displayed to be visible 360 degrees, or a combination of such red lights and blue or clear lights are displayed. The speed limit set out in <185><185> 32-25-1 to 32-25-17, inclusive, does not apply to authorized emergency vehicles operated by law enforcement officers who are measuring the speed of other vehicles by use of the emergency vehicle speedometer.

Therefore, the answer to your third question is "yes." The use of appropriate lights is required by statute when an emergency vehicle is disregarding traffic regulations.

I will offer one final editorial comment. The sheriff should use a bar light; the county should continue to provide the sheriff's car. I hope the parties will work it out without leaving the citizens unprotected.

MWB:PJF:nan