September 21, 1987

Ms. Pamela K. Putnam
Fall River County State's Attorney
1037 North River Street
Hot Springs, South Dakota 57747

OFFICIAL OPINION NO. 87-31

Private work by Sheriff's Office 

Dear Ms. Putnam:

You have requested an official opinion from this Office based upon the following factual information:

FACTS:

The Fall River County Sheriffs office has been contacted by a corporation that has bought a tract of land that they intend to locate a business upon that is currently situated in rural Fall River County.  This corporation has experienced vandalism when they moved heavy equipment onto the property, and so they are concerned about providing security at the site when none of their employees are around.  Because there are no private security services available in Fall River County, they have contacted the Fall River County Sheriff's Office to see if they could contract with the Fall River County Sheriff to provide a deputy or deputies to guard the property for this corporation. 

Based on these facts, you have asked the following question:

QUESTION:  

Whether the Fall River County Sheriff, in his official capacity, can enter into a contract to provide private security for a profit-making corporation?

In answering your question, it must be noted initially that it is the duty of a county sheriff to generally preserve the peace within his county.  SDCL 7-12-1.  Although there are no statutes specifically prohibiting an elected official, such as a county sheriff, from contracting with others to perform services in their official capacity, public policy prohibits such contracts.  In Warren v. Reed,  331 S.W.2d 847 (Ark. 1960), the court outlined these public policy considerations as follows: 

A contract made by a public officer is against public policy and unenforceable if it interferes with the unbiased discharge of his duty to the public in the exercise of his office, or if it places him in a position inconsistent with his duty as trustee for the public or even if it has a tendency to induce him to violate such duty.  Such contracts are invalid, although there may have been no actual loss or detriment to the public or fraudulent intent in entering into the contract, since the rule invalidating the contract is based on public policy. 

These same considerations are applicable to the situation presented in your request.  There is always a possibility that the county sheriff may be required, in his official capacity, to take adverse actions against its private "client."  The public policy concerns set forth above are then brought to fruition.  Therefore, my answer to your question is "no."  In my opinion, the Fall River County Sheriff, in his official capacity, cannot enter into a contract to provide private security for a profit-making corporation. 

Sincerely,

Roger A. Tellinghuisen
ATTORNEY GENERAL