DOJ: News Release

McGrath: Sheriff May Receive Federal Compensation

HELENA – In an opinion released Wednesday, Montana Attorney General Mike McGrath held that an off-duty county sheriff may legally receive compensation from a federal agency.

Ravalli County Attorney George Corn requested the opinion after that county entered into an agreement with the U.S. Forest Service during the extraordinary fire season of 2000. Under the agreement, the Forest Service contracted with county law enforcement personnel for services and there was a financial plan that allowed the USFS to have county law enforcement personnel perform “emergency” work beyond their normal duties and hours.

For those emergency duties – fire camp security, maintaining roadblocks, equipment security and traffic control – deputies earned overtime pay and reserve deputies earned regular pay then overtime. If county-owned equipment was used, the plan also provided for payment to the county for mileage reimbursement, a per-day payment for patrol cars and an administrative fee. The agreement specified non-reimbursable services included “normal Sheriff’s Department activities.”

At issue was whether the payments violated a Montana law that prohibits county officers from receiving fees for official service beyond a county salary and whether those payments broke Montana ethics laws that ban public employees from receiving payment for two separate public employment positions.

In addressing both questions, McGrath said that the tasks performed at the request of the USFS were clearly separate from sheriffs’ duties described by Montana law and so were not “official service.” Also, McGrath noted the financial plan provided payment solely for work beyond the usual responsibilities of the sheriff’s department.

The opinion also addressed the question of whether the payments between the USFS and Ravalli County Sheriff Perry Johnson violated the Montana Constitution’s prohibition against an elected officer of the executive branch being paid by any other governmental agency. McGrath held that although the sheriff was elected, he was not an officer of the executive branch – governor, lieutenant governor, secretary of state, attorney general, superintendent of public instruction or auditor – and so did not violate the Montana Constitution.

An attorney general’s opinion carries the weight of law unless a higher court overturns it or the Legislature modifies the laws involved.

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