Opinion No.

The Honorable Tim Hutchinson State Representative P.O. Box 933 Bentonville, AR 72712

Dear Representative Hutchinson:

This is in response to your request for an opinion on the following questions:

1. Can a county sheriff's deputy legally use county-owned equipment for an off-duty private security job?

2. Can a county sheriff's deputy legally use a county-owned automobile in his private security job?

3. If the answers to Question 1 and 2 are No , what legal recourse should be taken toward the deputy or the county sheriff involved?

With regard to your first two questions, if it is established that the county property is, in fact, being used to perform services in the private sector, such use is contrary to law. See, e.g., Pogue v. Cooper, 284 Ark. 105, 679 S.W.2d 207 (1984). The use of county property for private purposes is, generally, prohibited. ID. A private security job would, on its face, appear to fall within the category of services performed in the private sector. This is, however, ultimately a question of fact which cannot be conclusively answered in the context of an Attorney General opinion. All of the surrounding facts and circumstances must be considered.

In response to your third question, any citizen may institute suit to protect the inhabitants of the county against the enforcement of any "illegal exactions." Ark. Const. Art. 16,13. A taxpayer illegal exaction action is, therefore, a possibility whenever county property is used for private purposes. A showing of malfeasance, misfeasance, or nonfeasance in office will, it should also be noted, subject a county officer to removal from office under A.C.A.14-14-1311. This determination is, however, within the discretion of the county's prosecuting attorney, with a view to the particular facts at hand.

While it becomes apparent that conclusive determinations in this area can only be made by local officials and/or the courts, we hope that the foregoing offers general guidance in addressing the issues involved.

The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Elisabeth A. Walker.

Sincerely,

STEVE CLARK Attorney General

SC:arb