January 27, 1983

Mr. Patrick W. Kiner 
Davison County States Attorney 
Davison County Courthouse 
Mitchell, South Dakota 57301

Official Opinion No. 83-05

County responsibility for preexisting debts of indigents receiving county poor relief

Dear Mr. Kiner:

You have requested an official opinion from this office based upon the following facts:

FACTS: 

Individuals run up large utility bills at such places of business as Northwestern Bell and Northwestern Public Service, no notification is given to the county before several months and large amounts are run up.  At that point the individuals are threatened of interruptions of utilities and apply for relief.  The individuals qualify for relief and the county agrees to pay all forward bills so long as the individual remains in need.  The problem is the power company or phone company refuses to continue supplying services unless arrearages are caught up.

Based on the above, you ask the following questions:

QUESTIONS: 

1.  Is the county responsible to the utility companies for the arrearage bill prior to the determination of indigency? 

2.  If the county is not responsible, what type of action is necessary to insure noninterruption of the utility service due to arrearages? 

3.  If Question No. 2 is answered, who should take such action?

SDCL 28-13-16 provides that:  

The county commissioners in each county shall have the oversight and care of all poor persons in the county so long as those persons remain a county charge, and shall see that those persons are properly relieved and taken care of in the manner provided by law, and shall perform all the duties with reference to such poor persons that may be prescribed by law.  The commissioners may designate a county official to assist in the coordination of poor relief information with other counties.  [Emphasis added.]

The phrase 'so long as those persons remain a county charge,' indicates that any responsibility of a county to its indigent residents would date from approval of the indigents' application for assistance.  There would be no retroactive effect.  Some states hold that public assistance is based upon present and future need, see Hogue v. Commission of Economic Security, 407 S.W.2d 437, 438 (Ky. App. 1966), and the above statute is compatible with such an interpretation.  Therefore, it is my opinion that Davison County is not responsible to the utility companies for the arrearages incurred prior to a determination of an individual's indigency.

As to Question No. 2, there would appear to be a number of options available to avoid the interruption of utility service. While no attempt to enumerate each possible option will be made in this opinion, several will be mentioned.

You, or the county commissioners, could attempt to negotiate with the utility companies.  The utilities may be unwilling to supply service without payment of  the arrearages, but, if it is explained to them that their terminating of service will also involve the loss of the arrearages, the companies may be willing to accept payment for future bills.

Another alternative for the county would be to advance the amount of any arrearages to the indigent individual, or perhaps make payment directly to the utility company.  In exchange for this payment, the recipient of public assistance could have his or her relief payment reduced by a percentage of the utility payment until the debt was fully satisfied.

The above suggestions should indicate who should take action, the subject of your third question.

Respectfully submitted,

Mark V. Meierhenry
Attorney General