September 29, 1989
Ms. Karen A. Johnson
Custer County State's Attorney
P.O. Box 749
Custer, South Dakota 57730
OFFICIAL OPINION NO. 89-30
Joint law enforcement agreements
Dear Ms. Johnson:
You have requested an official opinion from this Office in regard to the following factual situation:
FACTS:
Custer County and the City of Custer have been involved in a joint law enforcement agreement for over 10 years. The agreement is renewed each year. In addition to being signed by City and County representatives, the Sheriff also signs the agreement. The Custer County Sheriff has recently informed the City and County that he will no longer handle the City law enforcement and will not sign the agreement for 1990.
Based on the above facts, you have asked the following question:
QUESTION:
Whether Custer County and the City of Custer can enter into a joint law enforcement agreement without the consent of the Custer County Sheriff?
IN RE QUESTION:
Cooperation among governmental bodies has been authorized by our Constitution. S.D. Const., art. IX, 3. Under this authorization, our Legislature has codified the joint exercise of governmental powers in SDCL ch. 1-24.
Any power or powers, privileges or authority exercised or capable of exercise by a public agency of this state may be exercised and enjoyed jointly with any other public agency of this state and jointly with any public agency of any other state or of the United States to the extent that the laws of such other state or of the United States permit such joint exercise or enjoyment. Any agency of South Dakota state government when acting jointly with any public agency may exercise and enjoy all of the powers, privileges, and authority conferred by 1-24-2 to 1-24-9, inclusive, upon a public agency. The provisions of this section do not apply to the power to tax. (Emphasis added.)
The joint exercise of power may be utilized by public agencies. Public agency is specifically defined for SDCL ch. 1-24 as
[a]ny county, municipality, township, school district, consumer power district or drainage district of the state of South Dakota; any agency of South Dakota state government or of the United States; any political subdivision of this state; any political subdivision of another adjacent state; and any Indian tribe[.]
SDCL 1-24-1(1). One should note that public agency speaks to counties and municipalities, and not to sheriffs. This statement is further buttressed by the fact that SDCL 1-24-1(3), which deals with state agencies, speaks specifically to officers while subsection (1), dealing with counties, does not.
Upon my review of the South Dakota Codified Laws, the only other statute that may provide some insight to the question presented is SDCL 1-24-6, which reads as follows:
In the event that an agreement made pursuant to 1-24-2 to 1-24-9, inclusive, shall deal in whole or in part with the provision of services or facilities with regard to which an officer or agency of the state government has constitutional or statutory powers of control, the agreement shall, as a condition precedent to its entry into force, be submitted to the state officer or agency having such power of control and shall be approved or disapproved by him or it as to all matters within his or its jurisdiction. (Emphasis added.)
To paraphrase 1-24-6, if a state government officer has constitutional or statutory powers of control over the subject covered in the joint agreement, the officer must approve the agreement for it to be effective. I am of the opinion that SDCL 1-24-6 does not apply to sheriffs because that provision is geared toward state agencies, which are defined at SDCL 1-24-1(3), and the State in general. The definition of state agencies in that section does not cover sheriffs.
I have also reviewed the decisions of the South Dakota Supreme Court and have found no guidance to the question presented.
In light of the foregoing, I am of the opinion that the consent of a county sheriff is not needed for a city and county to enter into a joint law enforcement agreement under SDCL ch. 1-24. The failure of a county sheriff to join, however, is fatal to the joint law enforcement agreement.
As with all joint powers agreements, someone has to carry out the terms of the contractual agreement. Two possible parties of enforcement are the county sheriff and a municipal police department.
The county sheriff is given the authority to "keep and preserve the peace within his county[.]" SDCL 7-12-1. One will note that a sheriff's jurisdiction runs throughout the whole county. This is in contrast to a municipality's police force, which is generally limited in jurisdiction to the municipality's corporate limits. See SDCL 9-29-1. The municipality's jurisdictional limitation excludes a municipal police department from carrying out a joint law enforcement agreement because the agreement necessarily covers the whole county.
Notation must be made of a county constable, a third possible party of enforcement to a joint law enforcement agreement. I am of the opinion, however, that the powers granted to county constables are insufficient to perform such an agreement. See generally AGO 88-17; 1941-42 AGR 109.
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. Since the county commissioners cannot direct the sheriff to do anything, it follows that they cannot direct the sheriff to either sign a joint powers agreement or to abide by the terms of a joint powers agreement.
If a county sheriff, through his office and deputies, does not agree to perform under a joint powers agreement, someone else will have to step forward to carry out the provisions of the agreement. As I have indicated above, no party other than a county sheriff has the necessary powers to perform a joint powers agreement of this sort.
Another possible way to accomplish a joint powers agreement would be through the formation of a separate legal entity to specifically carry forth the agreement. Concerning the contents of a joint powers agreement, SDCL 1-24-4 reads in part as follows:
Any such agreement shall specify the following:
(2) The precise organization, composition, and nature of any separate legal or administrative entity created thereby together with the powers delegated thereto, provided such entity may be legally created;
(6) Any other necessary and proper matters.
SDCL ch. 1-24 sets out only the manner by which a separate legal entity may be created. It lists what a joint powers agreement must contain, but does not provide the authority to create a separate legal entity. I can find no authority given to cities or counties under the South Dakota Codified Laws for the creation of a separate legal entity under these circumstances. That being the case, a separate legal entity cannot be formed for the specific purpose of a joint powers law enforcement agreement.
Thus, I am of the opinion that a joint powers law enforcement agreement must include the county sheriff to be effective and enforceable because the county sheriff is the only person who may implement the joint powers agreement.
Respectfully submitted,
ROGER A. TELLINGHUISEN
ATTORNEY GENERAL
RAT:do
