Request By:
Mr. Nicholas N. Brown
Assistant Warren County Attorney
416 East 10th Street
Bowling Green, Kentucky 42101
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
There is a need for additional deputy jailers for the Warren County jail. You ask if additional deputies can now be appointed.
You refer to OAG 73-835, relating to deputy sheriffs, in which we concluded that after the fiscal court fixes the number of deputies, it cannot be changed during the term. See KRS 64.530 and
Funk v. Milliken, Ky., 317 S.W.2d 499 (1958). Subsection (3) of KRS 64.530, as amended in 1978, specifically provides that the "fiscal court may fix the number of deputies. " (Emphasis added). Subsection (4) states in part that the "compensation of the officer and of his deputies and assistants shall be fixed by the fiscal court not later than the first Monday in May in the year in which the officers are elected, and the compensation of the officer shall not be changed during the term but the compensation of his deputies or assistants may be reviewed and adjusted . . ." (Emphasis added).
Funk v. Milliken, above, was decided in 1958. At that time KRS 64.530 contained the provision that county officers' and deputies' salaries and the number of deputies would be fixed by fiscal court not later than the first Monday in May in the year of the election of the constitutional officer. Thus the "first Monday in May" feature and the fixation of the number of deputies and their salaries are still written into the current KRS 64.530. The statute permits an annual adjustment of deputy salaries. However, the basic features, as above described, are still in the statute. So it still presents a contextual juxtaposition of the elements of "number of deputy positions" and the "deadline of first Monday in May." In that precise context in 1958 Judge Cullen, in Funk v. Milliken, wrote this significant paragraph at page 512:
"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. In no other way can effect be given to the obvious purpose of the Act to prevent an increase in expenditures for deputy hire after election. "
While the legislature has amended KRS 64.530 to provide for annual adjustment of deputy salaries, there is no general provision for the change in the number of deputies during the term. Thus the number of deputies generally is frozen at the level provided by the deadline order of fiscal court. Judge Cullen's language, above cited, as to no change during term, still logically and aptly applies to the number of deputies, generally. Any general removal of this inflexibility would require legislative amendment.
The original policy of prohibiting a change in salary after the election has been modified to the extent that constitutional officers' salaries can be changed during term through rubber dollar adjustment, and deputies' salaries can be changed during term by virtue of KRS 64.530 and the fact that deputies are not constitutional officers and are not subject to § 246 of the Kentucky Constitution.
However, the jailer's deputies present a special problem. KRS 71.060(1) reads:
"(1) Subject to the provisions of KRS 64.345, any jailer may appoint not more than two (2) deputies, and, with the approval of the county judge/executive, may appoint additional deputies. The jailer shall be liable on his official bond for the conduct of his deputies. The deputies shall have all the powers and be subject to the same penalties as the jailer. They may be removed at any time by the jailer. "
In Funk, above, Judge Cullen wrote in effect that after the first two deputy jailers are appointed, additional deputies may be appointed by the jailer with the approval of the county court [now county judge/executive]. Thus the fiscal court can designate up to two deputies for the jailer. This must be done before the term begins. Any additional deputies [after the first two] may be appointed by the jailer during term, if approved by the county judge/executive. The specific statute [KRS 71.060] should govern over the general [KRS 64.530].