Opinion No.

The Honorable Bill Strait Prosecuting Attorney Fifteenth Judicial District P.O. Box 460 Dardanelle, AR 72834

Dear Mr. Strait:

This is in response to your request for an opinion regarding the county's liability for the legal fees of a county sheriff who was sued individually and as sheriff for an alleged error in carrying out an execution on a judgment. You have stated that the sheriff obtained private counsel and ultimately prevailed in the case. The specific question that you have posed is the following:

Whether or not a county can pay the legal fees charged a county official by private counsel?

It is my opinion that the answer to your question is "yes." A.C.A. §14-14-1207 provides authority upon which the county may rely in paying such expenses. That section requires the county quorum court to authorize payment of "allowable expenses" that are non-discretionary. It further empowers the quorum court to authorize payment of "allowable expenses" that are discretionary. It must be noted that the phrase "allowable expenses" is not defined; however, based upon the facts set forth in your correspondence, it would seem that this instance is one in which the quorum court would be justified in finding the sheriff's legal fees to be "allowable." Although you stated that the sheriff was sued individually, you have stated no facts that would indicate that he acted outside of his official capacity. This conclusion is particularly appropriate in light of the fact that the court granted a summary judgment in favor of the sheriff.

It is therefore my opinion that the county may pay these fees. Moreover, in light of the fact that the sheriff was sued in his official capacity and nothing appears to have been adduced to suggest that the sheriff acted outside of his official capacity, it is my opinion that his legal fees should be deemed non-discretionary. That is, the incurrence of the legal expenses was "not discretionary in the conduct of duties assigned by law." A.C.A. § 14-14-1207(a). Accordingly, the county, in my opinion, is probably liable for the sheriff's legal fees.

The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Suzanne Antley.

Sincerely,

WINSTON BRYANT Attorney General

WB:SBA/cyh