When a county commission has voted no to a sheriff's request for a drug dog, can the sheriff accept a privately donated drug dog as a gift to the sheriff's office, and can the sheriff then go around the commission and amend the county's insurance policy to cover the dog?

Plain-English summary

Sully County is a small north-central SD county (about 1,500 residents) along Highway 83 between Pierre and the North Dakota line. In February 2017 newly elected Sheriff Brian Stahl asked the Sully County Commission to approve and fund a narcotics-detection dog ("Reggie") for the sheriff's office, partly to deter drug trafficking along Highway 83. The Commission voted unanimously no, on the stated grounds that property taxes were already too high and that drug enforcement on state highways would just increase county costs.

After the no vote, Reggie's previous handler (Mr. Anderson, hired by the sheriff's office in October 2016 with the understanding that he would train and use the dog) offered to convey ownership of Reggie to the sheriff's office as a gift. The sheriff accepted, signing an agreement transferring ownership. Then the sheriff contacted the county's insurance provider directly and amended the policy to add the dog without going back to the Commission.

The sheriff asked the AG two questions. Was the gift acceptance legal? And was the insurance amendment legal?

The AG split the answer. On the gift, yes. SD sheriffs have implied authority to accept gifts that are directly related to their statutory law enforcement duties. A trained narcotics-detection dog is exactly that kind of gift: it directly assists in detecting crime under SDCL 23-3-27 and enforcing the criminal and traffic laws under SDCL 23-3-43. The sheriff's authority to "keep and preserve the peace within the county" (SDCL 7-12-1) includes the implied authority to accept tools that help do that. No express statute authorizes the gift, but the implied-authority doctrine from Application of Kohlman covers it.

The AG added a recommendation in a footnote. Even though the sheriff can directly accept the gift, the cleaner practice is to have the county commission formally accept the gift on behalf of the county, then direct it to the sheriff's office. That avoids any appearance-of-impropriety questions about a sheriff directly receiving gifts.

On the insurance amendment, no. SDCL 7-12-26.1 expressly puts the liability insurance purchasing decision in the hands of the county commission. The sheriff has no concurrent or independent authority to amend the county's policy. The sheriff's unilateral amendment was invalid, and the Commission had to actually decide whether to add coverage. The opinion implicitly anticipated (and the Argus Leader story later confirmed) that the Commission would say no to the insurance amendment as well.

Currency note

This opinion was issued in 2017. 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. The sheriff-commission relationship in SDCL ch. 7-12 has been a stable feature of SD county government for decades, but specific provisions about gift acceptance and insurance authority should be verified directly. The opinion is best read for the structural principle, county commissions hold purse-string and policy-decision authority while sheriffs hold operational authority, rather than for any one citation.

What the opinion meant at the time

For Sheriff Stahl in 2017, the opinion was a mixed result. He could keep Reggie, but he could not get county insurance coverage without going back to the same Commission that had already rejected the drug-dog request. The Argus Leader later reported that the Commission voted again against extending insurance, this time at an estimated $15 per year added premium, and Reggie was largely sidelined.

For other SD sheriffs in 2017, the opinion gave them an implied-authority hook to accept law enforcement gifts (donated equipment, training scholarships, K-9 partners, body cameras) where commissions had refused to fund them. The recommendation to route the gift through the commission as a matter of clean practice rather than unilateral acceptance was prudent advice.

For SD county commissioners, the opinion confirmed that the power of the purse and the insurance-purchase authority remained intact even where sheriffs disagreed. The commission could not direct a sheriff to undertake a specific action (per AGO 94-02), but it could decline to fund equipment, decline to add insurance coverage, and decline to authorize new positions. The sheriff worked around the funding block with a gift; the insurance block stayed.

For private donors who wanted to support local law enforcement, the opinion clarified the path. A donation directly related to the sheriff's law enforcement duties could be accepted (preferably routed through the county commission's formal acceptance). A donation that would have required ongoing county expenditure (training, maintenance, insurance) needed commission buy-in.

For SD county risk managers and insurance agents, the opinion meant they could not accept policy amendments from sheriffs unilaterally. The insurance carrier's risk-acceptance and policy-amendment relationship runs through the commission, not the operational officials.

Common questions

Q: Why did the Commission reject the drug dog?
A: Per the Commission's stated resolution, property taxes were already high, and the Commissioners did not think drug enforcement along Highway 83 was a good use of additional taxpayer dollars. One commissioner publicly said a new road sander would be a better expenditure than a drug dog.

Q: How does a sheriff get implied authority to accept a gift?
A: SD sheriffs have express statutory duties to keep the peace, prevent and detect crime, and enforce criminal and traffic laws (SDCL 7-12-1, 23-3-27, 23-3-43). Under Application of Kohlman, implied authority is the authority "reasonably necessary" to carry out those express duties. A drug dog directly assists in detecting drug crimes. So implied authority exists.

Q: Could the sheriff have hired or accepted any gift?
A: No. The implied authority is limited to gifts "directly related to his or her responsibilities as sheriff" that "will assist the sheriff to conduct law enforcement activities within the county." A gift unrelated to law enforcement (a vacation cabin, jewelry, etc.) would not fit the implied authority.

Q: Why can't the sheriff add insurance coverage?
A: SDCL 7-12-26.1 expressly puts the authority to purchase liability insurance "covering and insuring the sheriff and each deputy and employee of the sheriff" in the county commission's hands. The AG opinion 85-46 had already read that statute as an explicit grant of power to county commissions. The sheriff has no parallel or independent authority.

Q: Who decides if the drug dog gets covered?
A: The county commission. The sheriff can request, but the commission decides whether to amend the policy to include the dog.

Q: What about the appearance-of-impropriety concern?
A: The AG noted in a footnote that direct gifts to a sheriff (versus to the county) can look improper. The recommended practice is for the county commission to formally accept the gift on behalf of the county, then direct it to the sheriff's office for use.

Q: Can a county commission instruct a sheriff to use a specific tool or take a specific action?
A: No. AGO 94-02 says a county commission cannot instruct a sheriff to undertake any specific action. The commission's control over the sheriff is limited to the power of the purse (deciding what to fund) and policy decisions like insurance.

Q: What happened to Reggie?
A: Per news reporting at the time, the Commission voted again against adding insurance coverage even after the AG opinion. Reggie was largely kenneled rather than deployed because the sheriff could not get county liability coverage. Local supporters launched a petition for the Commission to reverse its decision.

Background and statutory framework

SD county government runs on a sheriff/commission structure with deep historical roots. The sheriff is an elected official of the county (SDCL 7-12-1, 7-12-2), responsible operationally for keeping the peace, enforcing laws, running the jail, serving process, and managing the sheriff's office. The county commission is the legislative and budgetary body, responsible for setting the property tax levy, adopting the budget, approving major contracts, and exercising the structural authorities the Legislature has expressly assigned.

The line between the two has been litigated and AG-opined on for decades. AGO 89-30 captured it crisply: "The only conceivable method of control the county commissioners would have over a sheriff would be through the power of the purse." AGO 94-02 added the operational corollary: a commission cannot direct a sheriff to undertake any specific action. AGO 06-07 confirmed that sheriffs (not commissions) hire, discipline, and terminate sheriff's-office employees.

But the commission's purse and policy authorities are real. SDCL 7-12-12 lets a county, at the commission's discretion, furnish vehicles, uniforms, and other equipment to the sheriff. SDCL 7-12-26.1 lets the commission purchase liability insurance for the sheriff and deputies. Both are express commission powers; the sheriff has no parallel authority to spend county money or commit the county to insurance terms.

The 2017 question put those two doctrines in tension. Sheriff Stahl wanted Reggie. The Commission would not pay. A private gift solved the dog acquisition piece. But the gift acquisition did not solve the insurance piece, which structurally belongs to the Commission alone.

The implied-authority analysis on the gift question rests on Pennington County v. State (2002) and Application of Kohlman (1978). A sheriff has only express powers and powers "reasonably implied" from those express powers. The express duties (preserve the peace, prevent crime, enforce laws) carry implied authority to do what is "reasonably necessary" to accomplish them. Accepting a trained narcotics-detection dog is reasonably necessary (or at least reasonably helpful) for drug enforcement. So implied authority covers acceptance.

The express-vs-implied dichotomy did not, however, give the sheriff a parallel implied authority for insurance amendment, because SDCL 7-12-26.1 expressly assigns that authority to the commission. Where the Legislature has expressly assigned an authority to one body, another body's implied authority cannot override that express assignment.

The footnote recommendation about routing gifts through the commission for formal acceptance reflects the same structural concern. The county is the legal entity; the commission is the body that acts for the county. Direct sheriff acceptance bypasses that, even though the AG concluded the sheriff has implied authority to do it. Cleaner practice avoids the question entirely.

Citations and references

Statutes:
- SDCL 7-12-1 (sheriff peace duty)
- SDCL 7-12-2 (sheriff elected status)
- SDCL 7-12-10, 7-12-11 (sheriff hires deputies)
- SDCL 7-12-12 (county furnishes equipment)
- SDCL 7-12-26.1 (commission purchases liability insurance)
- SDCL 23-3-27 (prevent and detect crime)
- SDCL 23-3-43 (enforce criminal and traffic laws)

Cases:
- In re Estate of Ricard, 2014 S.D. 54, 851 N.W.2d 753
- In re Taliaferro, 2014 S.D. 82, 856 N.W.2d 805
- In re Petition for Declaratory Ruling re SDCL 62-1-1(6), 2016 S.D. 21, 877 N.W.2d 340
- Pennington Cty. v. State ex rel. United Judicial Sys., 2002 S.D. 31, 641 N.W.2d 127
- State v. Quinn, 2001 S.D. 25, 623 N.W.2d 36
- State ex rel. Jacobsen v. Hansen, 68 N.W.2d 480 (S.D. 1955)
- Application of Kohlman, 263 N.W.2d 674 (S.D. 1978)

Prior AG opinions:
- AGO 85-46 (county commission insurance authority)
- AGO 89-30 (commission control through purse only)
- AGO 94-02 (commission cannot direct sheriff action)
- AGO 06-07 (sheriff hires and disciplines)

Source

• Landing page: https://atg.sd.gov/OurOffice/OfficialOpinions/opinionhtml.aspx?id=1688
• Original PDF: https://atg.sd.gov/OfficialOpinions/Official%20Opinion%20No.%2017-03.pdf

Original opinion text

QUESTIONS:

1. Whether the sheriff has the authority to accept ownership of a drug dog that was given as a gift?

2. Whether the sheriff has the authority to unilaterally amend Sully County's insurance policy to cover the drug dog that was given as a gift?

ANSWERS:

1. No express statutory authority exists that would allow a sheriff to accept ownership of a drug dog that was given as a gift. However, sheriffs have implied authority to accept gifts, such as a drug dog, that are directly related to his or her statutory responsibilities and will assist the sheriff to conduct law enforcement activities within the county.

2. The sheriff does not have the authority to unilaterally amend Sully County's insurance policy to cover the drug dog that was given as a gift.

FACTS:

On February 7, 2017, the Sully County sheriff sought approval from the Sully County Commission for a drug dog. The County Commission unanimously voted to reject that request. Following that meeting, a person offered to convey his or her drug dog to the sheriff's office as a gift. The sheriff entered into an agreement to transfer ownership of the drug dog to the sheriff's office. Thereafter, the sheriff directly contacted the County's insurance provider and amended the policy to include coverage for the drug dog. That amendment to Sully County's insurance policy was done without the County Commission's approval.

IN RE QUESTION 1:

The South Dakota Supreme Court has continually reiterated the purpose of statutory construction is to discover a statute's true intention primarily through an analysis of its language. In re Estate of Ricard, 2014 S.D. 54, ¶ 8, 851 N.W.2d 753, 755-56 (citations omitted). As a result, "'[w]ords and phrases in a statute must be given their plain meaning and effect.'" In re Taliaferro, 2014 S.D. 82, ¶ 6, 856 N.W.2d 805, 806-07 (citations omitted). A statute that has clear, certain, and unambiguous language does not need interpretation; rather, a court need only declare the Legislature's clearly expressed intentions. Id. (citations omitted). The clearly expressed intentions "'must be determined from the statute as a whole, as well as enactments relating to the same subject.'" Id. ¶ 6 (citations omitted); see also In re Petition for Declaratory Ruling re SDCL 62-1-1(6), 2016 S.D. 21, ¶ 9, 877 N.W.2d 340, 344 (citation omitted).

Under South Dakota law, sheriffs are elected officials of the county in which they serve. See SDCL 7-12-1, and -2. As a county official, sheriffs are free to run their departments as they see fit, without interference by their county commission. See, e.g., AGO 94-02 (concluding a county commission cannot instruct a sheriff to undertake any specific action); AGO 06-07 (determining that SDCL 7-12-10 & SDCL 7-12-11 empowers sheriffs, not county commissions, to "appoint, discipline, and terminate" employees). Indeed, "[t]he only conceivable method of control the county commissioners would have over a sheriff would be through the power of the purse." AGO 89-30. For example, as part of that power of the purse, "[a]ny county may, at the discretion of the board of county commissioners, furnish any motorcycle, automobile, truck or other vehicle, uniforms and other equipment to the sheriff or his deputies, or both, for law enforcement purposes only." SDCL 7-12-12; see also AGO 94-02.

Generally a sheriff's authority is limited to those "'powers [that] are expressly conferred upon [them] by statute and such as may be reasonably implied from those [powers] expressly granted.'" Pennington Cty. v. State ex rel. United Judicial Sys., 2002 S.D. 31, ¶ 10, 641 N.W.2d 127, 130-31 (quoting State v. Quinn, 2001 S.D. 25, ¶ 10, 623 N.W.2d 36, 38 (citations omitted)); State ex rel. Jacobsen v. Hansen, 68 N.W.2d 480, 481 (S.D. 1955) (recognizing counties are merely "creature[s] of statute" that have "no inherent authority.") As a result, express or implied statutory authority must exist before a sheriff may legally accept a gift for the benefit of their office. Pennington Cty., 2002 S.D. 31, ¶ 10.

The statutes that delineate a sheriff's authority, SDCL ch. 7-12, contain no express statutory provision that authorizes a sheriff to accept gifts for the benefit of his or her office. Further, no express statutory authority has been found in any other provision of the state code that allows a sheriff to accept gifts. Absent express authority to accept gifts, a sheriff must have implied authority in order to accept a gift for the benefit of his or her office.

Implied authority is that authority "reasonably necessary to effectuate the express powers granted to, or duties imposed upon," a sheriff. Application of Kohlman, 263 N.W.2d 674, 678 (S.D. 1978). The sheriff is by statute directed to "keep and preserve the peace within the county" and may call upon any "power of the county as the sheriff deems necessary" to aid in carrying out this duty. SDCL 7-12-1. It is also recognized that as a certified law enforcement officer a sheriff has a duty to prevent and detect crime and to enforce the criminal and highway traffic laws of the state. SDCL 23-3-27 & 23-3-43. The question that must then be resolved in this matter is whether the gift of ownership of a drug dog is reasonably necessary to conduct law enforcement activities in the county. After a review of all applicable statutes, and considering both the power and duties of a sheriff, I conclude a sheriff has the implied authority to accept a gift that is directly related to his or her responsibilities as sheriff and will assist the sheriff to conduct law enforcement activities within the county. [1]

IN RE QUESTION 2:

As recited above, the purpose of statutory construction is to discover a statute's intent through an analysis of its text. Taliaferro, 2014 S.D. 82, ¶ 6 (citations omitted). As such, "'[w]ords and phrases in a statute must be given their plain meaning and effect.'" Id. (citations omitted). A statute does not need interpretation when its language is clear, certain, and unambiguous. Id. Instead, all that remains is to declare the Legislature's clearly expressed intentions. Id.

Under SDCL 7-12-26.1, a county commission may purchase liability insurance for the sheriff's office. Specifically, the statute provides:

Each board of county commissioners may purchase and pay premiums on insurance covering and insuring the sheriff and each deputy and employee of the sheriff. The insurance shall insure against personal liability as a result of errors or omissions in the performance of official duties. The premiums shall be paid from the county general fund.

SDCL 7-12-26.1.

The language of the statute is clear, certain, and unambiguous; the Legislature has expressly delegated the authority to purchase liability insurance for sheriffs and their employees to county commissions. SDCL 7-12-26.1; AGO 85-46 (concluding that "[t]he first sentence of the statute is clearly an explicit grant of power to the boards of county commissioners with the [S]tate . . . to purchase and pay for liability insurance . . . ."). To conclude otherwise belies the plain and ordinary meaning of the statutory text.

CONCLUSION

Based on a thorough review of the relevant statutes, it is my opinion that sheriffs are not expressly authorized by statute to accept gifts for the benefit of his or her office. However, sheriffs are impliedly authorized to accept those gifts that are directly related to his or her responsibilities and that will assist in conducting law enforcement activities within the county. Sheriffs are not authorized to unilaterally amend a county's insurance policy. That power rests solely with the county commission.

Sincerely,

Marty J. Jackley

ATTORNEY GENERAL

MJJ/SB/lde

[1] It is recognized that an appearance of impropriety may arise around the direct acceptance of gifts by a sheriff. To prevent such an appearance, it is recommended that a sheriff request that the county commission formally accept an offered gift on behalf of the county, and then direct that gift to the sheriff's office for use in conducting law enforcement activities in the county.