Could a sheriff bid against private firms for a paid school drug-sniffing dog contract?

Plain-English summary

In 2011, the South Carolina Attorney General concluded that a sheriff's department with the resources to provide drug-sniffing dog service to a school district had to provide that service without charging a fee. A sheriff therefore should not compete with private businesses for a paid contract to provide the same service. The AG reaffirmed an earlier office opinion on this point.

The opinion said public officers could charge fees only when law expressly authorized them. It found no express authority to charge schools for the dog service, which fell within a sheriff's general law enforcement responsibilities even though no statute specifically required using drug-sniffing dogs. It also discussed restrictions on public officers receiving extra payment for official work. The AG distinguished specific statutes that permitted some government law enforcement contracts; those exceptions did not authorize the school contract described.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later
AG opinions may have changed the analysis. Treat this page as historical context, not current
legal advice. Verify current law before relying on any specific rule, deadline, or remedy
mentioned here.

Common questions

Could a sheriff charge a school district for drug-sniffing dog service? A: The AG said no fee was authorized. If the department had the resources to provide the service, it had to do so free of charge.

Could the sheriff submit a bid against private detection firms? A: No. The opinion said a sheriff who could not lawfully charge for the service should not enter a paid bid competition for it.

Did a statute specifically order sheriffs to use drug-sniffing dogs? A: No. The AG said the use of dogs was not specifically mandated, but the service still fell within the sheriff's general law enforcement role.

Were all law enforcement service contracts forbidden?
A: No. The opinion identified specific statutory exceptions for some contracts, including certain arrangements with municipalities. It found none authorizing the paid school dog service at issue.

Background and statutory framework

A senator asked whether a sheriff's department could compete against private firms for school district contracts using drug-detection dogs. The AG applied its earlier opinion, the rule requiring express authorization for public fees, and laws restricting extra compensation for official duties. Its answer addressed a sheriff's department that had the resources to provide the service.

Citations and references

The opinion discusses § 16-9-230 and §8-13-720 on additional compensation and follows the AG opinion dated August 7, 2000 on sheriff dog services for schools.

Official title

Regarding whether a sheriff’s department may compete against private businesses for the contract to provide drug-sniffing dogs to the school districts.

Requester

The Honorable Glenn G. Reese, Member, SC Senate

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/october-11-2011/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/10/reese-g-g-os-9345-10-11-11-sheriff’s-dept-compete-private-bu-00153459xD2C78.pdf

Original opinion text

ALAN WILSON
ATIORNEY GENERAL

October I I , 20 I I

The Honorable Glenn G. Reese
Senator, District No. 11
502 Gressette Senate Office Building
Columbia, SC 29202

Dear Senator Reese:

We received your letter requesting an opinion of this office. By way of background, you inform us about complaints to you from private businesses that contract to use drug-sniffing dogs in South Carolina school districts to detect contraband. You ask whether a sheriff's department may compete against these private businesses for the contract to provide these services to the school districts?

Law/Analysis

We note a previous opinion of this office dated August 7, 2000, which addresses your question.
We then advised that:

[o ]ur Supreme Court has consistently recognized that costs and fees "are in the nature of penalties and the statutes granting them have always been strictly construed." State et al. v. Wilder, 198 S.C. 390, 394, 18 S.E.2d 324 (1941). In other words, "statutes providing for fees are to be strictly construed against allowing a fee by implication with respect to both the fixing of the fee and the officer entitled thereto." 67 C.J .S. Officers, §224. Governing the fees and costs of public officers generally, South Carolina Code of Laws Section 8-21 -10 states, "The several officers named in ... Article 1 of Chapter 19 of Title 23, shall be entitled to receive and recover the fees and costs prescribed by this chapter ... and Article I of Chapter 19 of Title 23, and none other, for the services herein enumerated." Moreover, §8-21-30 of the Code requires that if a Sheriff "improperly" charges a fee, he may be liable for "ten times the amount so improperly charged ...."

S.C. Code Ann. §23-19-10 states the general schedule of fees that a sheriff's department may charge for the performance of some of their duties. The statute begins: "Except as otherwise expressly provided by general law, the fees and commissions of sheriffs are as follows ..." [Emphasis added]. The provision presents a detailed list of the circumstances in which the sheriff is allowed to charge a fee, including for the service of civil process, commission on monies collected, and for claim and delivery actions. The statute ends: "The provisions of this section do not apply to criminal processes or cases,"

REMBERT c. DENNIS BUILDING • POST OFFICE Box 11549 • COLUMBIA, SC 29211-1549 • TELEPHONE 803-734-3970 • FACSIMILE 803-253-6283

The Honorable Glenn G. Reese
Page 2
October 11, 2011

which has been interpreted by this office to further restrict the sheriff from charging fees in criminal processes. See Ops. S.C. Atty. Gen., March 16, 2011; Jan 27, 2000. Only a few additional statutes permit the sheriff to collect fees for other particular services. See, e.g., § 12-59-110 [compensation for serving warrants and taking possession of forfeited property, § 15-17-540 [fee for summoning freeholders of property], §38-57-260 [fee for levy on debtor's property].

Additionally, simply as a matter of public policy, the sheriff of a county cannot receive remuneration for the performance of a duty imposed on him by law. Opinions of this office recognize the status of a sheriff as the chief law enforcement officer of a county. Ops. S.C. Atty. Gen., September I 0, 20 I 0; April 20, 2006. As noted in an opinion dated March I, 2005, a sheriffs jurisdiction encompasses the entire county. Sheriffs are required to "patrol the entire county" where they serve pursuant to §23-13-

70. Such enactment obligates a sheriffs department "to prevent or detect crime or to make an arrest ...
    for the violation of every law which is detrimental to the peace, good order and morals of the community." Moreover, §23-13-20 prescribes the oath of office of a deputy sheriff to be "alert and vigilant to enforce the criminal laws of the State."

    In an opinion dated April 7, 2008, we discussed whether a special tax district should enter into a
    

    contract with a sheriffs department to provide "police protection" to the tax district in addition to the regular sheriffs department patrols and law enforcement activities. Therein, we referenced an opinion dated April 18, 1995, which addressed whether a sheriffs department could contract with a subdivision to provide additional law enforcement protection and services. That opinion cited a prior opinion dated April 11, 1985, and stated that:

         [a]s a matter of public policy, a political subdivision, such as a county, is
         prohibited from entering into a contract by which it receives remuneration from
         a citizen for the performance of a public duty which is imposed on it by law,
         either expressly or by implication. McQuillin, Municipal Corporations, Section
         29.08 p. 234. As stated by our Supreme Court in Green v. City of Rock Hill,
         149 S.C. 234, 147 S.E. 346, 360 (1929), "[a]s a general rule, [a governmental
         body] ... may not contract with ... the public to discharge a purely public duty
         owed to the public generally." The rationale of the rule, noted the Court, "is
         grounded upon the theory that such a contract would restrict the discretion of
         the ... [governmental body] ... ; that is, embarrass or control it in the exercise of
         governmental functions, which cannot be surrendered or abrogated." 147 S.E.
         at 360.
    
    We further noted in the 1995 opinion that, consistent therewith is the following proposition of
    

    law:

         [t]he general rule with reference to peace officers is well settled that a promise
         of reward or additional compensation to a public officer for services rendered in
         the performance of his duty cannot be enforced. Both public policy and sound
         morals forbid that such an officer should be permitted to demand or receive for
         the performance of a purely legal duty any fee or reward other than that
    

The Honorable Glenn G. Reese
Page 3
October 11, 2011

established by law as compensation for the services rendered, including the arrest of criminals, protection of property and the recovery of stolen property.
70 Am.Jur. 2d, Sheriffs. Police and Constables, §71.

The foregoing basic common law and public policy principles have been codified by the General Assembly in specific statutory enactments. For example, § 16-9-250 makes it a misdemeanor for any sheriff or other peace officer in South Carolina " ... to make any charge for the arrest, detention, conveying or delivering of any person charged with the commission of crime in this State, except the mileage and necessary expenses as now provided by law." A public employee is proscribed from receiving additional compensation to that provided by law for the performance of duties by § 16-9-230. Moreover, §8-13- 720 of the Ethics, Government Accountability and Campaign Reform Act of 1991 requires that no person" .. . may offer or pay to a public official [etc.] ... and no public official [etc.] ... may solicit or receive money in addition to that received by the public official [etc.] in his official capacity for advice or assistance given in the course of his employment as a public official [etc.]. ... "

Certain exceptions to the general rule that a public entity or public official may not contract or receive remuneration to provide the services required by law are also provided in specific statutory provisions. One example is that the Sheriff may contract with a municipality within the county for the provision of law enforcement services. As was concluded in an Opinion, dated May 17, 1978, "[t]here are currently no state statutes which would prevent the Greenville County Sheriffs Department from offering Contract Law Enforcement services to municipalities within Greenville County." Another notable exception is found in Section 4-9-30 (5). As we noted in an opinion of June 13, 1985, a county is authorized to create a special tax district for police protection in a specific area of a county, pursuant thereto. Article VIII, Section 13 of the South Carolina Constitution and Section 6-1-20 of the Code authorizes the tax district to contract with the county for the provision of services like law enforcement.
Id. The contract may not, however, unreasonably limit the Sheriffs duty, and discretion to carry out his statutory mandate to patrol the entire county. See, Section 23-13-70.

Conclusion

As we previously advised in our opinion dated August 7, 2000, given the rule that fee statutes must be strictly construed against the charging of fees not expressly authorized, the specific prohibition in the Ethics Act against the charging of fees not enumerated in the statutes, and the absence of any express authority to charge a fee for providing drug-sniffing dogs, it remains the opinion of this office that a sheriff's department which has the resources to provide such a service to a school district must do so free of charge. Furthermore, simply as a matter of public policy, the sheriff of a county cannot receive remuneratic,m for the performance of a duty imposed on him by law. See Ops. S.C. Atty. Gen., March 16,

The Honorable Glenn G. Reese
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October 11, 2011

2011 [a sheriff may not charge a private security agency the cost incurred in the processing of evidence collected by private security guards]; January 27, 2000 [a sheriff may not charge a criminal defendant for serving subpoenas in the proceedings against him]; May 7, 1999 [a sheriff has no authority to charge a fee for responding to a false alarm from a private security system]; April 11, 1985 [a sheriff's department is not authorized to enter into a contract to provide law enforcement with a housing subdivision whereby the subdivision would receive additional law enforcement protection and services for a fee]. Although no statute mandates the sheriff's use of drug-sniffing dogs, the service certainly falls under his general law enforcement responsibilities. A sheriff who cannot charge a fee to provide the services of his drug- sniffing dogs to school districts should not, therefore, be involved in any bid competition for a contract with a school district.

Very truly yours,

~~
N. Mark Rapoport
Senior Assistant Attorney General

REVIEWED AND APPROVED BY:

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Robert D. Cook
Deputy Attorney General
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