Request By:
Kendall Robinson, Esq.
Owsley County Attorney
Box 34
Booneville, Kentucky 41314
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter concerning the appointment of deputy sheriffs. The sheriff who recently took office is limited to two regular deputy sheriffs, the same number as the previous sheriff had, since the fiscal court did not raise or change the number of authorized deputy positions pursuant to KRS 64.530. The sheriff now desires to employ two or three persons as part-time deputy sheriffs to be paid on a fee basis and you ask whether this proposed procedure is legal.
Pursuant to KRS 70.030 the sheriff may, with the approval of the fiscal court, appoint his own deputies. However, the only legal deputy sheriffs are those appointed by the sheriff to fill deputy positions authorized by the fiscal court pursuant to KRS 64.530. Under that statute the fiscal court is required, not later than the first Monday in May in the year of the sheriff's election, to establish by proper order the number of deputies authorized for the sheriff and their compensation. Thus, as we said in OAG 76-122, copy enclosed, the matter of the number of the sheriff's deputies during a term is rather inflexible. The number of deputies fixed for a sheriff's term cannot be changed during the term of office of that sheriff.
If the Owsley Fiscal Court did not enter an order in 1977 setting the number of deputy sheriffs and their compensation, then under KRS 64.730 the number of deputies actually used, and their compensation, during the immediately preceding sheriff's term would govern. See also
Funk v. Milliken, Ky., 317 S.W.2d 499, 512 (1958), where the Court said in part as follows:
"Considering the entire Act as a whole, we think the conclusion is inescapable that the legislature intended that both the number and the compensation of deputies be fixed by the fiscal court before the first Monday in May of the election year, and that if not so fixed the number and compensation will be limited by KRS 64.730 to that of the preceding term. . . ."
Therefore, in our opinion, the sheriff cannot legally at this time employ two or three additional persons as part-time deputy sheriffs since, on the basis of the information you provided, the fiscal court has only authorized two deputy sheriff positions and the persons filling those two positions are the only legal deputy sheriffs in Owsley County during the term of office of the present sheriff.