The McCook County Sheriff drives his personal car for sheriff work. The police radio, antenna, and red warning lights are owned by the county and have to be drilled into the car. When he buys a new car, can the county pay to take the equipment off the old car, install it on the new one, and also pay to repair the holes in the old car?

Plain-English summary

The McCook County Sheriff drove his personally owned car for his sheriff duties. McCook County, rather than buying him a sheriff's cruiser, owned the police-band radio, the antenna, and the red warning lights that were bolted into his car. Installing them required drilling holes in the body of the vehicle.

The county had two questions for AG Frank Farrar. First, when the sheriff replaced his personal car, could the county pay to remove the radio and lights from the old car and install them on the new one? Second, if so, could the county also pay to patch the holes and otherwise restore the old car to its original condition?

Farrar answered yes to both. His reasoning rested on three statutory pieces working together.

Chapter 233 of the 1965 Session Laws defined "emergency vehicle" to include any motor vehicle designated as such by the sheriff of any county in South Dakota when the vehicle is assigned the use of the county's assigned police frequencies. So once the sheriff designated his personal car as the county's emergency vehicle and installed the county radio on the county frequencies, his car was legally an emergency vehicle.

SDC 1960 Supp. 44.0303 (as amended by Chapter 254 of the 1963 SL) set the rules for emergency vehicles: speed limits did not apply when responding to emergency calls, provided the vehicle sounded a siren or horn and displayed two red lights to the front or a 360-degree beacon. The quoted statute conditioned the speed-limit exception for emergency calls on a siren or horn and red lights or a beacon.

SDC 12.1012 (added by Chapter 40 of the 1963 SL) gave the county Board of Commissioners discretion to either furnish the sheriff a county-owned vehicle or pay the sheriff to provide his own. McCook County had chosen the second option. The sheriff was using his own car, and the county-owned radio and lights had to be used for the office.

Given those facts, Farrar concluded the county may pay to remove its equipment from the old car and install it on the new one. He did not say the county must make that payment.

The restoration question followed the same logic. The county may also pay to restore the old car to its original condition to the extent the change in condition was caused by installing and removing county-owned equipment. Farrar limited his answer to damage caused by the installation and removal of the county-owned equipment; he did not endorse repainting the whole car or repairing unrelated wear.

Currency note

This opinion was issued in 1968 and signed by Attorney General Frank L. Farrar. It applies the statutes then in force. Check current South Dakota law before using its conclusion to decide a county vehicle expense today.

What the opinion meant at the time

For McCook County, the opinion permitted payment for removing and reinstalling the county-owned equipment and for restoration of the old car to the extent the installation and removal changed its condition. The opinion did not require payment.

For other counties using a sheriff-owned car, the opinion provides an example of a permitted expense: moving county-owned emergency equipment between cars and restoring damage caused by the installation and removal. It does not say who must bear the cost.

For sheriffs using their own cars, the opinion confirms the county may cover the described equipment costs. It does not rule that a sheriff can require the county to pay.

Common questions

Q: Why didn't the county just buy the sheriff a cruiser?
A: It could have. SDC 12.1012 explicitly gave the Board of Commissioners discretion to either furnish a county vehicle or pay the sheriff to provide his own. McCook County chose the latter. The opinion did not address why and did not second-guess that choice.

Q: Did the sheriff have to designate the car as an emergency vehicle in writing?
A: The opinion concluded that the car would be classified as an emergency vehicle on the facts presented. It did not discuss a written designation procedure.

Q: Could the county pay for fuel, insurance, or maintenance on the sheriff's personal car?
A: That was outside the scope of this opinion. SDC 12.1012 and SDC 12.10 provided for the county to "pay the sheriff to provide his own car," but the opinion did not explain which other vehicle expenses that payment covered. It addressed the county-owned equipment install/remove and the related vehicle restoration.

Q: What if the holes had been drilled before the equipment was county-owned?
A: The opinion did not address that scenario. Farrar's reasoning depended on the holes existing because the county had insisted on installing county-owned equipment. Pre-existing damage would not fit that rationale.

Q: Was there a limit on how often the county could pay for this?
A: The opinion did not impose one and did not address how often the install/remove and restoration cost could recur.

Q: Did this apply to other county law enforcement, like deputies?
A: The opinion was specifically about the sheriff and did not address deputies or other county officers.

Background and statutory framework

South Dakota's mid-20th-century rural counties faced a real budget choice between buying dedicated sheriff cruisers and paying mileage or vehicle allowances to sheriffs who used their own cars. Chapter 40 of the 1963 Session Laws codified that flexibility in SDC 12.1012, giving Boards of Commissioners explicit discretion to do either.

The emergency-vehicle statutory framework (Chapter 233 of the 1965 SL) layered on top of that funding flexibility. The opinion reads those provisions as classifying the sheriff's car as an emergency vehicle and requiring the county-owned radio and emergency lights for his duties.

The structural problem this opinion addressed was the seam between the two regimes. The vehicle was personally owned but the equipment was county-owned, and installing it required holes in the car. Farrar concluded the county may pay to move the equipment and restore the old car to the extent the change in condition was caused by installing and removing the county-owned equipment.

Citations and references

Statutes:

• Chapter 233, SL 1965 (emergency vehicle definition and frequency rules)
• SDC 1960 Supp. 44.0303 (emergency vehicle warning lights and siren), as amended by Chapter 254, SL 1963
• SDC 12.1012 (added by Chapter 40, SL 1963; county may furnish sheriff vehicle)
• SDC 1960 Supp. 12.10 (sheriff may furnish own vehicle with county payment)

Source

• Landing page: https://atg.sd.gov/OurOffice/OfficialOpinions/opinionhtml.aspx?id=725

Original opinion text

STATE OF SOUTH DAKOTA
OFFICE OF THE ATTORNEY GENERAL
November 15, 1968

C. J. Nagel
State's Attorney, McCook County
Salem, South Dakota 57058

OFFICIAL OPINION NO. 68-41

Payment by county of installation and removal of county owned equipment to and from Sheriff's personally owned car

Dear Mr. Nagel:

You have requested an official opinion of this office based upon the following factual situation;

"The McCook County Sheriff owns his own car. The police frequency radio, antenna and the red warning lights are owned by McCook County. This equipment is such that installation requires holes to be bored into the body of the car."

You have asked the following questions:

"1. May the county pay for the installation and removal of this emergency equipment from the Sheriff's old car and onto his new one?

"2. In the event the answer to the above question is affirmative, may the county also pay for restoring the Sheriff's old car to its original condition?"

Chapter 233 of the Session Laws of 1965 states in relevant part:

"Section 1. As used in this act, the term 'emergency vehicle' shall mean . . .: (d) any motor vehicles designated as an emergency vehicle by the sheriff of any county in South Dakota, when said vehicle is assigned the use of frequencies assigned to said county; "Section 2. No persons, firm or corporation shall install in any motor vehicle or business establishment, except emergency vehicles as herein defined, or places established by municipal, county, state or federal authority for governmental purposes, any frequency modulation radio receiving equipment so adjusted or tuned as to receive messages or signals on frequencies assigned by the Federal Communication Commission to local governing police or law enforcement officers of any city, or county of the State of South Dakota, or to the State of South Dakota or any of its agencies, provided, nothing herein shall be construed to affect any radio station licensed by the Federal Communications System."

SDC 1960 Supp. 44.0303 as amended by Chapter 254 of the Session Laws of 1963 states in part:

"The speed limit set out in this section shall not apply to authorized emergency vehicles when responding to emergency calls provided the drivers thereof sound audible signals by siren or horn and two lighted red lights are displayed to the front, or one beacon light visible 360°."

It would follow that the sheriff's car would be classified as an emergency vehicle and that such car must be equipped as required by law with police radio and emergency lights.

The county may arrange for such cars within the discretion of the Board of County Commissioners furnishing them at county expense, as provided for in SDC 12.1012 as added in Chapter 40 of the Session Laws of 1963, or by paying the sheriff to provide his own car, as allowed in SDC 1960 Supp. 12.10 and amendments.

Since McCook County has chosen the second alternative and since the county owned equipment must be used as a requirement of the office, I am of the opinion that the answer to question NO.1 should be, and is answered, in the AFFIRMATIVE.

The answer to question No.2 should be, and is answered, in the AFFIRMATIVE to the extent that such change of condition is caused by the installation and removal of the county-owned equipment.

Respectfully submitted,

Frank L. Farrar

Attorney General