STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

April 17, 1970

Dennis R. Padrnos
State's Attorney, Davison County Courthouse
Mitchell, South Dakota 57301

OFFICIAL OPINION NO. 70-18

State's Attorney must defend county commissioners in action arising because of official action, but in case of misconduct in office should prosecute such action

If State's Attorney and Sheriff are named defendants in suit arising from official action, an independent counsel should represent such officials with a right of reimbursement as provided by SDCL 3-19-1

Dear Mr. Padrnos:

You have requested my official opinion in regard to the following two factual situations:

FIRST: The county commissioners were named individually as party defendants in an action to restrain them from further participating in awarding a contract, allegedly let in violation of the competitive bidding statutes. (The allegation being made that such contract was not awarded to the "lowest, responsible bidder.")

SECOND: A second, independent action was brought in Federal Court naming the sheriff, the state's attorney, and their respective deputies as parties defendant, seeking an injunction against such officials from further prosecuting an individual under the criminal laws. It being alleged such further criminal prosecution is violative of the individual's constitutional rights.

Submitted with this tersely summarized factual situation are these questions:

1. Is it the duty and obligation of the state's attorney to defend the county commissioners under the factual situation described in the first situation?

2. If the state's attorney defends in such action, would his "out-of-pocket" expenses be properly chargeable against the county?

3. Who should act as defendant's counsel in the second situation? (The state's attorney, the Attorney General, or an independent attorney employed by defendants?)

4. 'Would such independent counsel be entitled to attorney fees?

5. Would such sheriff, the state's attorney, and their deputies be entitled to reimbursement for out-of-pocket expenses arising from such second situation?

6. Are there any limitations upon such attorney fees, and out-of-pocket expenses as may be so authorized?

SDCL 7-16-9 makes it incumbent upon, and the duty of the state's attorney to defend on behalf of his county, all actions or proceedings, civil or criminal, in which the county is interested or is a party. Such duties must be performed without receipt of extra fees or compensation (SDCL 7-16-18).

SDCL (Supplement) 3-19-1 authorizes reimbursement of costs, attorney fees, and judgments recovered in any action, arising out of an act or omission occurring within the scope of employment or when exercising official duties by specified public officers. These specifications include the county commissioners.

It is my opinion that SDCL 3-19-1 does not supplant the duties that the law places upon the office of state's attorney. This duty remains and when the county is interested in such litigation, or is named a party to such litigation, the statutory duty remains and the state's attorney must defend in such action. The fact the county commissioners are named as defendants individually, rather than as a group, "the county commissioners of X County" does not change such duty to defend. (See State v. Board of County Commissioners (1916) 36 SD 606, 156 NW 96, and 1943-44 AGR 239 and 1965-66 AGR 92.)

However, you must bear in mind the provisions of SDCL 7-16-15, and its application to the problem. If you are convinced that the county commissioners actually failed to comply with the statutes governing competitive bidding in awarding such contract, then the "county's interest" is antagonistic to the interest of the county commissioners, and your interest is in the case of such conflict TO REPRESENT THE COUNTY (1923-24 AGR 314). If this decision is made, you should not defend such county commissioners, but probably the statutes require the action be maintained in the name of the county and prosecuted by you as state's attorney. Be that as it may, the county commissioners should employ their own attorneys of choice, and cannot seek reimbursement or financial interest from the county. This is explicit in 3-19-1 and is consistent with 1931-32 AGR 608, and 1939-40 AGR 628 where it was specifically held that if a state's attorney commences an action in the name of the county as against the county commissioners, the county commissioners are not authorized to employ counsel at county expense to defend such action.

Subject to the discussion immediately made, if the action of the county commissioners is determined to be legal, Question No. 1 must be answered YES. Question No. 2 must be answered NO. Such expenses, other than travel, and necessary meals and lodging, is not recoverable. SDCL 7-16-18 and see the opinions of this office, 1947-48 AGR 356, 1953-54 AGR 145, and 1955-56 AGR 237.

Question No. 3 must be answered: Defense must be by independent counsel of choice of defendants and Question No.4, subject to statutory limitations, such counsel is entitled to receiving his attorney fees.

It is my opinion that the second factual situation is a perfect example of the shortcoming in the laws that the Legislature intended to overcome by enacting SDCL 3-19-1 through 3-19-3. As I pointed out in my opinion 69-24 dated March 4, 1969 addressed to Robert A. Amundson, you, as state's attorney should not defend in this case as counsel. This disqualification also disqualifies your deputy. This office should not appear in such matter. The quoted statute authorizes you, together with the other defendants to employ a private attorney or attorneys, and after such litigation is terminated you may recover reimbursement for costs assesed against you, the attorney fees, and any judgment assessed against you in such action. SDCL 3-19-2 limits the total amount of such reimbursement to seven hundred fifty dollars ($750.00).

I do not know what is encompassed in the term "out-of-pocket" expenses of the defendants. If you are referring to costs collected as a part of the judgment in such litigation, as I have indicated, such may be paid by reimbursement from the county. If, on the other hand, you are referring to the expenses of being and appearing in Federal Court in Sioux Falls, my opinion is that such expenses are not recoverable from the county. You can appreciate that in a civil action no defendant need appear in person, only the appearance of his attorney is necessary. Your appearance can only be permanently secured by a subpoena issued by the plaintiff in the action. Under such subpoena any expenses would be recoverable from the party issuing the same. I believe this concisely answers Question No.5.

Question No.6, of course, is answered by the statute. The top limitation of reimbursement for court costs, judgment and attorney fees rests in the discretion of the county commissioners, but in no Event can such exceed seven hundred fifty dollars ($750.00).

Respectfully submitted,

Gordon Mydland
Attorney General