SHERIFFS MAY NOT SUPPLEMENT THEIR SALARIES BY RETAINING SERVICE OF PROCESS FEES, ATTORNEY GENERAL J.B. VAN HOLLEN HOLDS IN INFORMAL OPINION

MADISON - Wisconsin Attorney General J.B. Van Hollen issued an informal opinion today holding that a county sheriff may not supplement their salaries by retaining any of the service of process fees that he or she collects and that a sheriff's salary cannot be increased during his or her term of office under Wisconsin law.

Van Hollen issued the opinion in response to a request from Iron County District Attorney Martin J. Lipske.

After an extensive analysis of the relevant statutes, Van Hollen's opinion concludes that a county sheriff may not retain any of the service fees that he or she collects. In addition, the opinion holds that while a sheriff's salary may not be increased during his or her term, counties may adjust reimbursements to sheriffs for actual, out-of-pocket expenses incurred during the discharge of the sheriff's duties.

In response DA Lipske's questions concerning his possible obligation to commence criminal proceedings against the current sheriff, and as to whether the current sheriff is required to repay any service fees that have been retained during the time period that the sheriff has been in office, Van Hollen indicated that criminal intent may not exist if an honest error has occurred and that a prosecutor has discretion to decide whether legal resources should be expanded in order to determine the possible existence of criminal intent.

"It would not be appropriate to issue a legal opinion as to whether the current sheriff is required to repay all or part of the service fees he has retained during the time period that he has been in office," said Van Hollen. "A legal opinion cannot resolve factual issues and because a legal opinion concerning that question could possibly influence the outcome of future litigation."

A copy of the original request and Attorney General Van Hollen's informal opinion can be found here.