STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

June 27, 1968

Thomas P. Ranney
State Representative, Pennington County
Rapid City, South Dakota 57701

OFFICIAL OPINION NO. 67-68 pg. 497

Counties. Ambulance service furnished by county and municipalities by joint effort.

You have submitted the following questions in regard to Chapter 24 of the Session Laws of 1968 which amended the substance portion of Chapter 23 of the Session Laws of 1967 relating to the providing of ambulance service by counties and municipalities.

The questions you have submitted are as follows:

"1. Assuming that it is permissible under the law to pay each  claim or a percentage thereof when duly filed and audited by the county, may this expense be charged against the County Poor Relief Fund?

"2. If not, may the city or the county establish a special levy for  this purpose?

"3. If the municipality and county were to enter into an agreement with some private concern to provide ambulance service for a definite period of time of at least one year in duration and were to provide for a flat subsidy, said subsidy in all likelihood to exceed approximately $13,200, would the county or the city under the general contracting provisions be required to call for bids?"

The factual situation described is that private ambulance service within City A is to be terminated effective June 1, 1968, and by such termination no other ambulance service is available either to the city or the county. Both the city and county are desirous of furnishing ambulance service to the city or the county, but neither provided for such service in their budget for fiscal 1968.

It seems so well known that judicial notice may be taken thereof, that by virtue of certain provisions of Federal Medicare Legislation, that private ambulance service is disappearing throughout the United States. To alleviate such condition, the public entities are furnishing the same. The 1968 statute, above cited, provides as follows:

"Section I. Counties and municipalities are authorized to provide ambulance service within their boundaries and within a radius of 50 miles thereof, to enter into agreements with other governmental subdivisions and with other persons for such services, and to appropriate funds for such purposes, or in lieu thereof said county or municipality may enter into an agreement with such other' governmental subdivision or any competent person to furnish funds for such purposes on an annual basis as may mutually be agreed upon, and to be paid to such person or political subdivision when a claim has been duly filed, audited and allowed by the county or municipality, and to license and regulate persons providing such services."

(Section 2 of such Act provides an emergency clause.)

QUESTION 1: I must assume that this is an attempt to find a legal method to circumvent the provisions of the budget laws applicable to municipalities and counties which provide that unless money is budgeted for a particular item, there can be no expenditure for such purpose and, further, that even if money is appropriated for a particular purpose, the budgeted or appropriated amount is the maximum amount of public funds that may be expended for that purpose.

Without indulging in a long discussion, there seems no question that County Poor Relief Funds are designated and appropriated to aid the poor of a particular county.

Unless the ambulance service the public entities are to furnish is limited to serving only the poor of City A and the County, a use of funds to furnish ambulance service is unjustified. As the factual situation indicates, this is to furnish ambulance service to "all" inhabitants of City A and the county, I must answer question No. 1 in the NEGATIVE.

Question No. I is answered NO.

QUESTION 2: It is axiomatic that as municipal corporations and counties have no inherent authority, the city or the county cannot establish a special levy to furnish ambulance service without legislative sanction. I can find nothing in Chapter 24, Laws of 1968 authorizing a special levy for such purpose. The laws relative to special levies for full time health departments, as provided in SDC 1960 Supp. 27.18A do not authorize a special levy for ambulance service.

There seems no direct authorization for a special levy by either a county or a municipality to provide ambulance service within such public subdivisions. There is no authorized purpose to be supported by special levy which infers such authority to furnish ambulance service.

Question No. 2 must be answered NO.

QUESTION 3: It is my opinion that the furnishing of such ambulance services is classified as "personal services," and, as I have many times ruled (as have my predecessors in office, the statutes requiring competitive bidding in letting contracts, would not apply.

However, such contract may be let by competitive bidding, and if the County Commissioners, in joint concert with the governing body of the municipality, found that there could be competition in furnishing such ambulance service, perhaps for the benefit of the general public, the letting of such a contract should be left to calling for bids, and awarding such contract on the basis of competitive public bidding. This, of course, lies within the sound discretion of the governing bodies of such affected public subdivisions of government, and is not the exclusive statutory method.

While you have not asked the question, it is my opinion that the support of such ambulance service, either when done by the city and county jointly, or by contractual agreement of such public bodies, must be financed from the general funds of the county and the municipality. If the factual situation shows that at the time of adoption of budgets for fiscal 1968 there was no knowledge that the private ambulance service would terminate such service, the county and the city could, with propriety, find an emergency exists, and could provide to pay the cost of such services by way of an emergency budget.