January 26, 1979

Mr. Jeff Bloomberg 
Deputy State's Attorney 
Butte County Courthouse 
Belle Fourche, South Dakota 57717

Official Opinion No. 79-1

Can County Commissioners Purchase Surplus County Vehicles?

Dear Mr. Bloomberg:

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

FACTS: 

A question has arisen as to the legality of a member of the Butte County Commission purchasing two surplus automobiles owned by the county. Specifically the vehicles were offered for public sale in accordance with the statutory requirements.  However, at the time of sale, a member of the commission offered to purchase the vehicles at the appraisal price.

Based on the above facts you ask the following question:

QUESTION: 

Would a sale of vehicles to the county commissioner as described above be void under the provisions of SDCL 6-1-1 and the case of Bozworth v. Hagerty, 78 S.D. 157 (1949)?  

SDCL 3-16-7 provides: 

Every public officer, being authorized to sell or lease any property, or make any contract in his official capacity, who voluntarily becomes interested individually in such sale, lease, or contract, directly or indirectly, is guilty of a misdemeanor.

The provisions of SDCL 3-16-7, cited above, have been interpreted by my predecessors many times.  See 1965-66 A.G.R. 224. These opinions have taken a  strong position holding that public officers such as county commissioners are not in a position to ignore or subvert the restrictions imposed by law.  The case of Bozworth v. Hagerty, cited above is also referred to in the aforementioned opinion of the Attorney General as authority for his decision therein.

I concur with my predecessors in that I believe the law is clear and that it does prohibit such a contract as you proposed in your fact situation.  This result is harsh to be sure, but it is what the law provides and requires.

The provisions of SDCL 6-1-1 provide further authority supporting the conclusion that this contract would be void and improper.

Respectfully submitted,

Mark V. Meierhenry
Attorney General

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