October 1, 1976

Mr. Gerald M. Baldwin
Custer City Attorney
Custer, South Dakota 57730

OFFICIAL OPINION NO. 76-93

Joint law enforcement program as embodied in the joint law enforce­ment agreement

Dear Mr. Baldwin:

Since my letter to you dated August 16, 1976, I have been appraised of addi­tional facts in regard to the joint law enforcement agreement in Custer which I believe are important to the answers presented in response to the question you raise.

In regard to the joint law enforcement agreement between Custer County, the Custer County Sheriff, and the City of Custer, I understand the parties have agreed that:

1. The sheriff would be in charge of operating the city jail;

2. The sheriff would be obligated to keep all records previously kept by the city police, involving records on ordinance viola­tions;

3. The sheriff would be obligated to supervise and implement the combined budget and to provide each separate government agency a separate accounting of personnel and expenses;

4. The sheriff would be obligated to supervise and enforce minor city traffic violations, dog regulations, domestic "problems" and all other city ordinances;

5. The sheriff would be charged with investigation of all minor city traffic offenses.

The question thus presented is whether or not a joint powers agreement which provides for duties over and above those required of a county sheriff can justify the sheriff being compensated for this extra work over and above the salary set by statute for county sheriffs. The question here addressed, then, is not the same as in my letter to you of August 16, 1976, which con­sidered the question of increasing the salary of a county sheriff under a joint powers agreement for performing law enforcement functions which the county sheriff was already empowered to perform.

The general rule is that public officers can devote less than full time to their official duties unless the law specifically provides to the contrary. 67 CJS Officers 116. I am not aware of any South Dakota law which specifically says that a county sheriff must spend "full time" being sheriff. SDCL 7-12-1 requires the sheriff to keep and preserve the peace in his county and to execute all writs, warrants and other processes directed to him to serve. If the sheriff does not do his job, he is violating the law, but if he does his job without devoting "full time" to it, he does not appear to violate the law.

Since a county sheriff can lawfully devote less than full time to his duties as sheriff, it logically follows that if he engages in other work he would be en­titled to be compensated for such work (over and above his statutory salary as sheriff) if the additional work in fact is not a part of the sheriff's respon­sibility as sheriff.

The question is also raised here whether or not a joint powers agreement can lawfully join a county sheriff's responsibility in the law enforcement func­tion of a municipality and result in the same county sheriff actually han­dling both the sheriff's job and the city police function. SDCL 1-24 con­templates that a separate legal or administrative entity created by the joint powers agreement administer the joint undertaking. This joint legal or ad­ministrative entity governing the joint powers agreement may make the decision that the individual who happened to be the county sheriff in Custer County would be the individual who would be in charge of the joint law en­forcement functions under the agreement. It is the joint administrative legal board or entity, however, not the county sheriff, which is in control of the joint undertaking.

I have not seen the cooperative undertaking agreement in regard to this mat­ter, but I would assume the proper signatories to the agreement would be the county commissioners of Custer County, the County Sheriff of Custer County, and the governing body of the City of Custer. Under the agree­ment, pursuant to SDCL 1-24-4(2), I presume there is an administrative or legal entity created to administer the joint powers agreement. I also assume that this legal or administrative entity has determined that the individual who is the county sheriff of Custer County would be the individual who they desire to have as the chief law enforcement officer under the joint agreement. To the extent that the county sheriff is performing duties out­side the scope of what the county sheriff's duties are, in my opinion he would be eligible to receive additional compensation for such work.

I am not aware of what provisions have been established in the joint agree­ment as to the permissible methods for terminating the agreement (SDCL 1-24-4(5)), but it appears to me that any of the signatories to such an agree­ment are in a position to terminate their participation in the agreement at will. SDCL 1-24 deals with authorizing joint cooperative action. In my opinion it does not authorize the irrevocable delegation of statutory func­tions and duties to any other public agency or to any joint "legal or ad­ministrative entity" created by the agreement. Such an irrevocable delega­tion in my opinion would be unlawful.

In expressing the above opinions and arguments, I am not departing from the position stated in my letter to you of August 16, 1976. I am merely stating here that if the properly established joint administrative or legal enti­ty determines that the county sheriff is to perform functions over and above those set by statute for the county sheriff, the county sheriff can perform such additional law enforcement functions and can be lawfully reimbursed for this work over and above the amount set by statute for county sheriffs' salaries.

Respectfully submitted,

WILLIAM J. JANKLOW
ATTORNEY GENERAL

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