Request By:
Mr. Harold Haering
State Representative
46th District - Jefferson County
7709 Zenith Way
Louisville, Kentucky 40219
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You have requested our formal opinion concerning whether or not Jefferson County, through its fiscal court, may establish a safety officers program under the home rule. You have in mind something similar to that covered in H.B. 68, as enacted by the 1978 session of the General Assembly. That legislation, as you mention, applies only to urban county governments.
KRS 67A.075 [Section 2, H.B. 68, Ch. 166, 1978 Acts] provides that the legislative body of urban county governments may appoint as needed "safety officers." The specific powers of such safety officers, or citation officers, as the title mentions, are listed. They include the issuance of citations for the violation of motor vehicle offenses as provided for in KRS Chapters 186 and 189, except that safety officers shall not have the authority to issue citations for moving violations. The powers also include the investigation and reporting of vehicle accidents, control and direction of traffic on public thoroughfares, the removal of vehicles in violation of state or local law, etc.
It has been suggested to you by Mr. Bill Wiley of the Legislative Research Commission's staff that the authority for establishing a safety officers program, of the type involved in H.B. 68, exists under county home rule, that is, specifically under KRS 67.083(3)(u).
KRS 67.083(3) provides that the fiscal court of any county shall have the power to carry out governmental functions necessary for the operation of the county. Except as otherwise provided by statute or the Kentucky constitution, the fiscal court of any county may enact ordinances, issue regulations, levy taxes, issue bonds, appropriate funds and employ personnel in performance of the following functions: * * * (u) "Provision of police and fire protection." (Emphasis added).
In Fiscal
Court, Etc. v. City of Louisville, Ky., 559 S.W.2d 478 (1977), the Supreme Court of Kentucky reiterated the principle that in order for there to be a constitutional delegation of legislative authority to a fiscal court by the General Assembly, such delegation must be in the form of an express and explicit statutory provision. The court said that "The thoughtful, purposeful and deliberate delegation of a known power is required by the General Assembly." (p. 482).
In KRS 67.083(3)(u) we believe that the legislature is saying that the fiscal court in any county can enact ordinances treating the subject of "police protection. " (Emphasis added).
The term "police protection" , as used in a municipal ordinance or state statute, refers to a governmental function.
Rosecrans v. William S. Lozier, Inc., (CCA - 8, 1944) 142 F.2d 118, 122. In common language, it means a law enforcement body or system. See definition of "police" in Webster's New World Thesaurus, Charlton Laird, p. 462. See McQuillin, Municipal Corporations, Vol. 16, § 45.01, dealing with "police protection" as a function of local and state-wide concern.
A police system of a political subdivision has been characterized as a matter of state-wide concern. Thus such local systems are in a large measure a part of state government; and their members perform functions of state officials in the exercise of delegated state sovereignty. Ex Parte City of Paducah, 125 Ky. 510, 101 S.W. 898 (1907) 900. Here the General Assembly specifically delegated the authority to create such a local police unit. However, the General Assembly did not place beyond its legislative control the subject of local police systems, since in KRS 67.083(3) it specifically provided that all such ordinances must not be in conflict with present or future constitutional or statutory sections.
It must be carefully noted that the safety officer concept expressed in KRS 67A.075 does not refer to the local creation of regular police systems or peace officer functions in the usual sense. To the contrary, the safety officer is an officer of severe limitations in function, since he is basically a citation officer [except he cannot issue citations for moving motor vehicle violations], and has no power of a peace officer to make an arrest or carry deadly weapons. We conclude that the safety or citation officer concept is not in conflict with existing statutes. Where properly enacted by the local fiscal court it can be an important adjunct to the local police systems.
It is our opinion that KRS 67.083(3)(u) is a specific enough delegation of authority to authorize the fiscal court of Jefferson County to enact an ordinance providing for safety officers, with the duties similar to those outlined in H.B. 68, as mentioned above. This applies to any county, except a county having urban county government. In the latter case KRS 67A.075 would apply, of course.
We believe that the Jefferson Fiscal Court can enact such an ordinance, with the following condition: The ordinance must not be in conflict with any existing constitutional or statutory section.