Protecting the Office of Sheriff


State Supreme Court affirms the elected office of sheriff’s right to control its own day-to-day operation and administration.

By Richard M. Weintraub

The North Dakota Supreme Court recently issued a unanimous opinion that sets a legal precedent for the elected Office of Sheriff in North Dakota in holding that the board of Commissioners (“Board”) in McKenzie County, North Dakota, does not have the authority to discipline or to remove from office and elected, sitting North Dakota sheriff. The North Dakota Supreme Court held that only the elected North Dakota Office of Sheriff possesses the lawful authority to discipline, and to fire the employees of a North Dakota Office of Sheriff.

With the assistance of NSA SHELF funds, McKenzie County Sheriff Gary Schwartzenberger appealed a North Dakota district court order denying his petition for a writ to prohibit the McKenzie County Board from taking direct disciplinary actions in employment matters including the termination of a deputy sheriff in the local sheriff’s office.

The North Dakota Supreme Court opinion concluded that the board did not have the authority to discipline a deputy in the sheriff’s office, and reversed the order denying a writ of prohibition. Furthermore, the opinion set forth a clear and convincing precedent that, “in considering the allocation of authority between a county board and a sheriff, courts in the other jurisdictions have similarly construed their laws and generally concluded that although county boards may implement personnel policies for county employees, sheriff have the authority to appoint, promote, demote, and dismiss deputies.”

The court cited Board of County Commissioners v. Nielander, 62 P.3d 247, 251-54 (Kansas 2003), which construes that Kansas’ statutes and holding board authority to implement personnel policies, but a sheriff has the authority to hire and fire employees in the sheriff’s office, in issuing the opinion, as well as Linehan v. Rockingham County Commissioners, 855 A.2d 1271, 1274-76 (N.H. 2004), which discusses the “coextensive powers of sheriff and county commissioners” and rule that commissioners “do not have the authority to interfere with terms and conditions of deputy sheriffs.”

“We recognize a sheriff’s failure to take disciplinary action against a deputy in a sheriff’s office may impose potential financial liability on a county; however, we have found no authority permitting the Board to take disciplinary action up to and including termination against a deputy in Sheriff Schwartzenberger’s office in this case. Rather, under [North Dakota] law, the authority for that discipline lies with Sheriff Schwartzenberger, and not the Board,” the North Dakota opinion stated.

To sum up, this North Dakota Supreme Court opinion held that a North Dakota County Board does not have the necessary authority under North Dakota Law to make disciplinary decisions involving personnel in the North Dakota sheriff’s offices.

The elected sheriffs of North Dakota are the chief law enforcement officers in their local counties. The local voters of McKenzie County, North Dakota, directly elect their local sheriff, as well as the five members of the local board. The Board’s petition to disenfranchise and deprive the voters of McKenzie County of their right to vote by preventing the elected sheriff from administering/operating his office on a day-to-day basis on behalf of the citizens of McKenzie County was denied by the North Dakota Supreme Court.

A primary goal of NSA is to preserve and protect the elected office of sheriff, which allows each of the nation’s more than 3,000 elected offices of sheriff to provide public safety and law enforcement services in their local communities and under the rule of law. Over 99 percent of America’s elected offices of sheriff are directly elected by voters in respective counties, cities, and parishes.

Throughout the country, the office of sheriff is usually designated to be the highest law enforcement officer in his or her local jurisdiction, with full law enforcement and public safety powers and authority. Each such elected local sheriff is directly answerable to the people in the country. In addition, the Supreme Court of the United States recognized in McMillian v. Monroe County [Alabama] (1997), 520 U.S. 781, that an elected sheriff is “in reality, an officer of the state in fulfilling his/her duty to keep the peace” throughout the state.

NSA Resolutions 2016-01 and 2017-01 state, in part, that the right to vote is central to essence of the American form of government, and each elected sheriff is directly responsible and answerable to the public electorate in his or her jurisdiction. As a result, the elected sheriff is not a “department” subject to direct control through and appointment by a county board.

The elected office of sheriff protects the public from undue political influences and pressures while carrying out its local law enforcement and public safety duties in local communities. Moreover, each elected local sheriff takes an individual oath of office to defend and protect their state and federal constitutions, and provide equal justice under the law.

In summary, our nation’s elected offices of sheriff are subject to separation of powers doctrine, which provides for executive, judicial, and legislative branches of local, state, and federal governments. The elected office of sheriff, its sheriff, and deputies provide executive functions by carrying out law enforcement and public safety duties in their local communities.

Under the separation of powers, a local board of commissioners provides the funding and helps set the local annual budget for an elected office of sheriff. As a result of our government’s balance of powers, each individually elected office of sheriff should then be empowered to administer its day-to-day function and operations without the direct or indirect supervision of a local county board of commissioners/supervisors, etc.


Richard M. Weintraub is NSA’s general counsel and in-house legal counsel.

Published by the Nations Sheriff’s Association in the January/February 2018 volume 70 – Issue 1 of SHERIFF & DEPUTY

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