Op. Atty. Gen. 390a-6 ( 1994 )

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' ' ff may not perform privately contracte
: COMPENSATION. FEES. County sheri 1 _ ’ _
ts)ciiiz:l:ti;l;ewices within the county for personal compensation lSh§r/ifof?)s §a§;:ilz§/Om::;rébg§s may
be involved in private service of process business. Mlnn. Stat. § 3 . , . , .
390a-6
(Cr. ref. 390a-18,390c)
October 31, 1994
Bruce D. Obenland
Pope County Attomey
605 South Lakeshore Drive, Suite 1000
Glenwood, Minnesota 56334-1550
Dear Mr. Obenland:
In your letter to our office of June 3, 1994, you present the following:
FAC'I`S
The sheriff of Pope County, Minnesota, is on occasion employed during off-duty
hours by businesses and governmental entities to provide police services,
receiving compensation from such businesses and governmental entities.
Activities for which compensation is received generally include providing police
services for cities within the county which do not have regular police services,
policing dances, school functions and similar activities. The sheriff retains any
compensation so received. In addition, members of the sheriff’s immediate
family, (his spouse and adult children) operate an unincorporated process serving
business serving civil process within Pope County and in other counties adjacent
to it. The sheriff himself does not engage in the service of civil process for this
unincorporated family business.
Questions presented are as follows:
QUES'I`ION ONE
May the Pope County Sheriff, during off-duty hours, provide police services to
cities within the county as well as private business entities and receive
compensation from these parties? If so, should the county be reimbursed for the
funds so received by the sheriff?
Bruce D. Obenland
Page 2
October 3l, 1994
OPINION
We answer your question in the negative with respect to an elected county sheriff
providing law enforcement services to private or public entities and receiving compensation in
addition to his salary for such services. The office of County Shen`ff is established by state
statute. §§ Minn. Stat. §§ 382.01, 387.01 (1992). Specific powers and duties of county
sheriffs are defined. for example, in Minn. Stat. § 387.03 (Supp. 1993).
The sheriff shall keep and preserve the peace of the county, for which
purpose the sheriff may require the aid of such persons or power of the county as
the sheriff deems necessary. The sheriff shall also pursue and apprehend all
felons, execute all processes, writs, precepts, and orders issued or made by
lawful authority and to the sheriff delivered, attend upon the terms of the district
court, and perform all of the duties pertaining to the office, including
investigating recreational vehicle accidents involving personal injury or death that
occur outside the boundaries of a municipality, searching and dragging for
drowned bodies and searching and looking for lost persons. When authorized by
the board of county commissioners of the county the sheriff may purchase boats
and other equipment including the hiring of airplanes for search purposes.
See also Minn. Stat. §§ 86B. 105 (watercraft safety) § 75.46 (patrol of roads). See also
Op. Atty. Gen. 733, July 14, 1947 wherein we noted the following concerning the duties of
sheriffs:
The sheriff has the general responsibility for enforcing the criminal laws
throughout his county. lt is his duty, so far as available means permit, to take
the initiative in law enforcement without waiting for complaints, to investigate
conditions respecting observance of the laws, to take such action as circumstances
may require for the prevention of violations, to arrest offenders when sufficient
grounds appear, to swear to criminal complaints when he has sufficient
knowledge of the facts, and to investigate criminal cases and secure evidence for
the prosecution thereof. Any one may report a law violation to the sheriff, who
should make such investigation and take such action as the case may require.
For performance of the duties of office, the sheriff receives a salary as fixed by the
county board. See Minn. Stat. § 387.20 (1992). Subdivision 5 of that section provides:
Subd. 5 . The county sheriff shall charge and collect all fees and per diems
prescribed by law and may require such fees and per diems to be paid before
performing the services for which they are charged. The sheriff shall pay all
Bruce D. Obenland
Page 3
October 31, 1994
such fees and per diems to the county in the manner and at the times prescribed
by the county board, but not less often than once each month. The sheriff shall
not retain any additional compensation or other emolument for services in any
activity of county govemment. For purposes of this subdivision, (l) the expenses
of the sheriff incurred in the performance of official duties for the county,
(2) uniform allowances, (3) mileage and travel allowances, except as the board
shall have furnished motor vehicles pursuant to Minnesota Statutes 1961,
section 387.29, (4) living quarters provided by the county, and (5) payments for
boarding prisoners, shall not be deemed an emolument of the office.
See also Minn. Stat. § 357.33 (1992).
From these authorities. it seems clear that the sheriff’s salary constitutes the
compensation for performing all law enforcement functions and duties belonging to the office
and he or she may not charge and retain any fees or compensation for such activities. In this
regard the sheriff is not, in our view, ever really "off duty" when it comes to performing
duties assigned to the office. While the sheriff is certainly not required to devote 24 hours
each day to actually performing sherist duties, and has substantial discretion in allocating
both his own time and the resources of the department, it seems clear that the salary provided
is for the holding of the office and performance of all duties associated therewith rather than
for adhering to a particular schedule of "on duty" and "off duty" time. This notion is further
supported by Minn. Stat. § 43A. 17, subd. 10 (1992) which provides:
The compensation plan for an elected official of a statutory or home rule
charter city, county, town, or school district may not include a provision for
vacation or sick leave. The salary of an official covered by this subdivision may
not be diminished because of the official’s absence from official duties because of
vacation or sickness.
Furthermore, absent statutory authority, it is generally held that public agencies or
officials may not contract to provide basic governmental services, such as law enforcement,
for a fee. As noted by the California Attomey General in 68 Ops. Cal. Atty. Gen. 175,
July 19, 1985:
[A]side from the special case of Govemment Code section 26228, post, we have
found no statutory basis whatsoever for a county or a city, or a sheriff or chief of
Bruce D. Obenland
Page 4
October 31, 1994
police acting in an official capacity to contract with private individuals for the
provision of any law enforcement services. lndeed, the tenor of the general
understanding of the provision of law enforcement services has always been that
such is owed to the community as a whole with no special favor going to those
who are able to pay for special private services.
Thus while it is true that with finite resources a sheriff or chief of police can
provide but a limited degree of protection from crime, the duty nonetheless
remains to provide that degree, as appropriate, throughout the city or county with
unjustifiably deploying protective services in one area at the expense of another.
See also Ops. Atty. Gen. 6881(. December 15. 1964 and DecemberZZ, 1952 (no
authority to impose service charge for fire protection service).
Minn. Stat. § 436.05 (1992) does provide authority for counties, though the sheriff, with
the approval of the county board to contract with cities or towns to provide police services.
Such authority, however, does not relieve the sheriff of any of the duties imposed by law. I_d_.
subd. 3. Nor would such authority permit the sheriff personally to retain any compensation
provided to the county pursuant to such contracts. Thus, inasmuch as the activities described
in your letter appear to be such as are included within the general duties of the. office of
sheriff. it is our view that the sheriff may not contract with public or private entities within the
county to provide such services in return for personal compensation to the sheriff in addition to
salary.
We note that this opinion relates only to the sheriff as an elected county officer and not
to other peace officers who are employed by units of government. We have previously
recognized that employed peace officers may, to the extent permitted by their appointing
authorities, to perform compensated security services during off~duty hours. C_.L Gp. Atty.
Gen. 785-L, January 17, 1989 concerning off duty officers wearing their uniforms and badges
while performing off duty services. See also Spaulding v. Board of Commissioners,
Bruce D. Obenland
Page 5
October 31, 1994
Kandiyohi County, 238 N.W.2d 602 (Minn. 1976) (distinguishing between county employees
and elected officials with respect to authority to be granted severance pay.)
Since we conclude that the sheriff is not authorized to perform contract policing services
for personal compensation, it appears unnecessary to respond to the second part of your
question concerning "reimbursement" of the county for funds received. We might say,
however, that as noted above, the sheriff is bound to pay over to the county all fees or
per diems prescribed by law. Thus, it is clear that any moneys collected pursuant to a statute
providing for a fee for services of the sheriff are owed to the county. In situations where no
fee or charge is authorized, it may depend upon the circumstances whether either the county or
the person or entity having paid the charge would be entitled to recover.
QUES'I`ION TWO
May the sheriff or his immediate family (in this case spouse and adult children) engage
in services of civil process and receive compensation for such services either within or
outside the jurisdiction of Pope County, Minnesota?
OPINION
One of the statutorily prescribed duties of the sheriff is to execute all processes and writs
and orders within the county. w Minn. Stat. §387.03 (1992). From the foregoing
discussion, it is manifest that the sheriff cannot retain personm compensation from any source
in excess of his salary for engaging in service of process within the county. There is no
similar prohibition against the sheriff receiving compensation for service of process outside the
county, where the sheriff has no legal duties or obligations outside Pope County.1 However,
the sheriff may be unable to adequately perform his legal duties within Pope County if he
spends substantial amounts of time in private ventures outside of the county.
1. As noted in Op. Atty. Gen. 785-L, January 17, 1989, however. a peace officer would_not
be authorized to wear the badge or uniform of office when performing private services
outside his or her jurisdiction.
Bruce D. Obenland
Page 6
October 31, 1994
lt is unclear precisely what role, if any, the sheriff plays in his family’s business. As
sheriff, he may not decline to serve process in his official capacity in order to benefit his
family’s business. However, there is no prohibition per § against members of the sheriff’s
family engaging in service of process within or outside the county. If the sheriff has an
ownership interest in the family business, that business cannot contract with the county unless
the contract falls within one of the statutory exceptions to the general rule prohibiting public
officers from having financial interest in government contracts. §§ Minn. Stat. §§ 382.18,
471.87-88 (1992).
Thus, there is no prohibition against the family members engaging in service of process
within the county and receiving compensation therefore, provided the sheriff is not involved in
such activity. The family members may, of course, engage in service of process outside of
Pope County.
l hope the foregoing discussion has been helpful to you, and sheds light on some of the
primary issues.
Very truly yours,
HUBERT H. HUMPHREY lIl
Attomey General
KENNETH E. RASCHKE, JR.
Assistant Attorney General
(612) 297-1141
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