September 30, 1980

Mr. Leon J. Vander Linden 
Office of State's Attorney 
Webster, South Dakota 57274

Official Opinion No. 80-61

Responsibility of State's Attorney in Connection With County Hospital

Dear Mr. Vander Linden:

You have requested an official opinion from this office in regard to the following factual situation:

FACTS: 

The Day County Hospital located in Webster, South Dakota, is owned and operated by the County.  The County Commissioners, pursuant to SDCL 34-8-7, appointed a Board of Trustees to manage and assist them in the management of the hospital.  The County also entered into a management contract with HAI, a hospital management consultant firm of Nashville, Tennessee, to assist them in managing the hospital.  The hospital administrator is paid by HAI; however, his compensation is part of the terms and provisions of the management contract.  Therefore, indirectly, he works for the County.  The by-laws of the county hospital provided for the establishing of a medical staff, consisting of those licensed medical practitioners practicing medicine at the hospital. 

The hospital administrator, board of trustees, medical staff, hospital employees, and HAI have all requested opinions, advice, and legal work from me as State's Attorney of Day County.  I have been representing all of them without compensation. 

The 1981 budget for the Day County Hospital is $2,150,000.00 and is probably the largest business in Day County.  During the past five years, there have been no tax dollars used for the hospital.  A year ago, the County did use some revenue sharing funds to help in building a new addition and remodeling.  To properly represent the hospital and the Board of Trustees,  and all the various departments, requires considerable time and research. With the other duties of State's Attorney, it becomes most impractical to represent the hospital without compensation.

Based on the above facts, you have asked the following questions:

QUESTIONS: 

1.  Is the state's attorney required to represent a County owned hospital and its board of trustees without compensation? 

2.  If so, then is the state's attorney required also to do their collection work and represent the various departments including the medical staff without compensation?

IN RE QUESTION NO. 1:

SDCL 7-16-8 provides as follows: 

It shall be the duty of the state's attorney to give opinions and advice without fee to the board of county commissioners and other civil officers of his county, when requested by such board or officers, upon all matters in which the county is interested or relating to the official duties of such board or officers.

That statute requires a state's attorney to give advice without fee in certain instances.  It does not require him to represent without fee those organizations and members or employees thereof who are indirectly employed by the board of county commissioners.  A state's attorney has no duty to give advice without fee to anyone other than the board of county commissioners and other civil officers.

It is my opinion that SDCL 7-16-8 does not require you, in your capacity as Day County State's Attorney, to represent the County-owned hospital, its board of trustees, its departments, or medical staff nor must you do their collection work without compensation.

IN RE QUESTION NO. 2:

In light of the answer to Question No. 1, the answer to Question No. 2 is also no.

Respectfully submitted,

Mark V. Meierhenry
Attorney General