STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

September 16, 1975

Mr. Bernard Christenson
Executive Secretary
Law Enforcement Officers Standards
and Training Commission
Post Office Box 1231
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 75-160

Whether or not the selection standards apply to part-time law enforcement officers

Dear Mr. Christenson:

You have requested our official opinion as to whether or not the standards set by the Law Enforcement Standards and Training Commission apply to part-time law enforcement officers.

The definition of law enforcement officer found at SDCL 23-3-27 makes no distinction between part-time and full-time personnel. The thrust of the definition of law enforcement officer is focused on the function which the officer serves, i.e., "who is responsible for the prevention and detection of crime and the enforcement of the criminal or highway traffic laws of this state." If part-time law enforcement officers are responsible for the prevention and detection of crime and the enforcement of the criminal or highway traffic laws of this state, they are then subject to the provisions of SDCL 23-3 and the rules and selection standards of the Law Enforcement Standards and Training Commission.

In summary, part-time law enforcement officers must meet the same standards under SDCL 23-3 which full-time law enforcement officers must meet.

You have also requested our opinion on what liabilities arise when a noncertified individual is hired as a law enforcement officer.

With the exception of probationary officers as provided for in SDCL 23-3-41, any unit of government which hires a noncertified law enforcement officer clearly acts in violation of the law. Public officers who knowingly act outside of the scope of their authority and contrary to law open themselves to potential personal liability for their personal conduct as well as the official conduct of "noncertified" law enforcement officers unlawfully appointed by such public officials. Sovereign government immunity does not operate to protect public officers who intentionally act outside the scope of their authority and contrary to law, White Eagle Oil & Refining Company v. Gunderson, 48 S.D. 608, 205 N.W. 614,43 A.L.R. 397 (1925). In the White Eagle Oil case the South Dakota Supreme Court said:

The distinction between suits against the state and suits against state officers may be expressed as follows: Those cases in which the decrees require by affirmative official action on the part of the defendants, the performance of an obligation which belongs to the state in its political capacity, are suits against the state; while those actions at law or suits in equity maintained against defendants, who while claiming to act as officers of the state, violate and invade the personal and property rights of the plaintiffs under color or authority unconstitutional and void, are not suits against the state.

In summary, public officials can be held personally liable for hiring a "noncertified" law enforcement officer.

Respectfully submitted,

William Janklow
Attorney General

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