December 13, 2006

Michael R. Moore
Beadle County State's Attorney
P.O. Box 116
Huron, SD 57350-0116

OFFICIAL OPINION NO. 06-07

Administration of Regional Corrections Facility and Juvenile Detention Center

Dear Mr. Moore:

You have requested an official opinion from this Office based upon the following factual situation:  

     FACTS:

The Beadle County Commission wishes to create the position of Jail Administrator to oversee the Beadle County Regional Corrections Facility (Jail) and Juvenile Detention Center (JDC).  The commission envisions the administrator being appointed annually by the commission.  The administrator would have charge of the Jail and JDC and all persons by law confined therein.  If this ordinance were enacted, the Beadle County Sheriff would be relieved of all responsibility of running the Jail and JDC, including oversight of Jail and JDC personnel.  The commission has relied upon SDCL 24‑11‑13 in seeking to create this position.  

Based upon the above facts, you have requested answers to the following two questions: 

     QUESTIONS:

1.   May the Beadle County Commission create a jail administrator position to oversee the day-to-day operation of the Jail and/or JDC? 

2.   Would the appointed administrator, including employees under the administrator, answer solely to the Beadle County Commission, or would the administrator answer to the sheriff?  

IN RE QUESTION 1: 

SDCL 24‑11‑13 states "The sheriff or other officer designated by law or ordinance shall have charge of the jail of his county or municipality and of all persons by law confined therein.  The officer in charge of any jail shall conform in all respects to the policies and procedures required by § 24‑11‑23."  A plain reading of the text of the statute clearly indicates that someone other than the sheriff may be tasked with the duty of overseeing a county jail facility.  One of my predecessors in this office reached the same conclusion in Official Opinion 75‑77.  It is my opinion that a county commission may create the position of jail administrator.  A person in such a position would have charge of the jail facilities and of all persons lawfully confined therein. 

IN RE QUESTION 2:  

Two interrelated questions naturally arise once the jail administrator position has been created.  Who is responsible for choosing the administrator, and to whom does the administrator answer and report?  The Beadle County Commission envisions the administrator being appointed by, and solely answerable to, the county commission.  It is my opinion that a jail administrator position, created by the commission under SDCL 24‑11‑13, must be selected by the sheriff and answerable only to the sheriff. 

The language of SDCL 24‑11‑13 is silent as to who appoints the "officer designated" and to whom that person answers.  Reviews of prior versions of the State Code reveal little about the intent of the statute.  Section 10198 of the 1919 Revised Code contained the exact language found in the first clause of the current SDCL 24‑11‑13.  A second section, 10204, stated that the "jailer of the county jail, unless the sheriff elects to act as jailer in person, shall be a deputy sheriff."  In the 1939 edition of the South Dakota Code these two provisions were combined to form Section 13.4605.  The statute read this way until the Legislature deleted the second clause from SDCL 24‑11‑13 in 1981.   

While SDCL 24‑11‑13 provides little guidance as to which authority is responsible for the "officer designated," other applicable statutes help answer the question.  A sheriff is granted sole responsibility for appointment, discipline, and termination of his deputies and staff.  "The appointment or removal of each deputy, jailer, and clerk shall be made by the sheriff."  SDCL 7‑12‑10.  "The sheriff shall be responsible for the acts of each deputy, jailer, and clerk in the performance of the duties of his office, provided, however, that the sheriff may relieve any deputy, jailer, or clerk of any or all official responsibilities and duties, summarily."  SDCL 7‑12‑11.  

Webster's Dictionary defines a "jailer" as a keeper of a jail.  626 (10th ed. 1993).  Black's Law Dictionary defines a "jailer" as the "keeper or warden of a prison or jail."  580 (6th ed. 1991).  It is my opinion that an "officer designated by law or ordinance" to "have charge of the jail of his county" is a jailer according to the plain meaning of the term.  The "officer designated" becomes the jailer in person of the county.  

In 1963 SDCL 7‑12‑10 was amended to give a county commission the appointment power for sheriff's deputies, jailers, and clerks.  This interpretation was upheld by the Supreme Court in Rosander v. Butte County Commissioners, 336 N.W.2d 160 (S.D. 1983); and Groseclose v. Bloom, 368 N.W.2d 572 (S.D. 1985).  In Rosander, the Court held that a county commission had the authority to appoint individuals recommended in writing by the sheriff.  In Groseclose, the Court found that the county commission held the power to terminate employees of the sheriff's office.  However, in 1989 the Legislature amended SDCL 7‑12‑10 to once again place the appointment and removal power of sheriff's employees into the hands of the county sheriff.    

It is clear that the Legislature intends the sheriff to be the ultimate authority when it comes to employees of his or her office, and specifically of jailers.  Statutes, to the extent possible, must be read in conjunction with each other.  Counties generally may only do that which is specifically delegated to them by statute.  County commissions are granted the authority to create positions within the sheriff's control, and to fund those positions.  SDCL 7‑12‑9.  Sheriffs, however, retain the authority to appoint, discipline, and terminate those employees.  SDCL 7‑12‑10 and ‑11.  This power naturally extends to the jailer in person of the county.  Therefore, a jail administrator position created under 24‑11‑13, in my opinion, must be appointed by, and answerable to, the sheriff.

The answer to your first question is "yes," the Beadle County Commission may by ordinance establish and fund the position of administrator of the Jail and JDC.  To answer your second question, that administrator then becomes the de facto jailer in person for the county and must be chosen by, and must answer to, the Beadle County Sheriff.  

Respectfully submitted, 

Lawrence E. Long
Attorney General