September 30, 1976
Mr. James R. Minick
Union County Deputy State's Attorney
Union County Courthouse
Elk Point, South Dakota 57038
OFFICIAL OPINION NO. 76-90
Reciprocal agreements to provide for fire protection services
Dear Mr. Minick:
You have requested an opinion based on the following facts:
FACTS.
A number of residents in Union County voluntarily contribute to the Akron, Iowa, fire department in exchange for fire protection services. Recently the Boards of Supervisors of several townships have indicated an interest in forming a rural fire protection district and levying a tax to be channeled to the Akron fire department. Thus, the need for individual contributions would be eliminated.
In this regard you ask the following questions:
QUESTION NO.1.
Does the rural fire protection law and specifically SDCL 34-31 A-2 authorize a district to contract with an out-of-state entity?
QUESTION NO.2.
SDCL 34-31-1 gives the County Board of Commissioners the authority to make agreements with governing boards in adjacent states "when there are reciprocal agreements between the contracting parties." Is a reciprocal agreement limited to fire fighting equipment covering X square miles in exchange for like services, as an example, or does the payment of a sum of tax money in exchange for fire protection represent "a reciprocal agreement?"
IN RE QUESTION 1.
In my opinion a rural fire protection district organized pursuant to SDCL 34-21A has the authority to contract for such services with an out-of-state entity possessing fire protection powers. SDCL 1-24 provides for the joint exercise of designated powers by any two or more public agencies which independently have such authority. Included in the definition of "public agency" in subdivision (1) of SDCL 1-24-1 are any political subdivision of another adjacent state and any political subdivision of this state. In SDCL 34-31A-16, the Legislature has declared rural fire protection districts to be "bodies politic and corporate." The declaration is consistent with the majority of case law which considers the attributes distinctive of political subdivision as, (1) that it exists for the purpose of discharging some function of local government, (2) that it has some prescribed area, and (3) that it possesses authority for subordinate self government through officers selected by it. 32 A, Words and Phrases, Political Subdivisions, McClanahan v. Cochise College, 540 P. 2d 744.
Therefore, the answer to your Question No. 1 is YES. A rural fire protection district is a public agency vested with SDCL 1-24 powers.
IN RE QUESTION 2.
With regard to your second question, you state that SDCL 34-21-1 provides for reciprocal agreements between a board of county commissioners and a governing body in an adjacent state. You have asked for an interpretation of the term "reciprocal agreement."
The exact language of any such agreement is, of course, to be left to the parties thereto. However, it is my opinion that SDCL 34-31-1 and SDCL 1-24 must be read together and, consequently, the terms and conditions provided in SDCL 1-24-4 and 1-24-5 must be included in an agreement. The method of financing, the delegation of responsibility and provision for administering the undertaking are the major terms to be specified. To answer your specific question, it is my opinion that SDCL 1-24 permits public agencies to contract with each other to provide a mutual service in the most feasible manner consistent with SDCL 1-24 and does not require a totally equal effort on one hundred per cent matching funds by each party. The governing bodies of the affected agencies must use their discretion when negotiating a contract.
Since your factual situation states that certain townships within Union County are presently interested in a joint arrangement, I might add that townships are also defined as public agencies in SDCL 1-24 and, therefore, the boards of supervisors of those townships (as opposed to the entire county) could execute an agreement as well.
Respectfully submitted,
WILLIAM J. JANKLOW
ATTORNEY GENERAL
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