Request By:
Mr. C. Allen Muncy
Leslie County Judge/Executive
Courthouse
Hyden, Kentucky 41749
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You request an opinion of this office on the following questions:
"Does the fiscal court have the option of approving or not approving the appointments and salaries of deputy sheriffs?
"If not, is the fiscal court liable (civily) for the acts and omissions for the sheriff, deputies or the office of sheriff?"
APPOINTMENTS AND SALARIES OF DEPUTY SHERIFFS.
KRS 70.030 reads:
"The sheriff may appoint his own deputies, and may revoke the appointment at his pleasure. Before any deputy executes the duties of his office he shall take the oath required to be taken by the sheriff."
The sheriff appoints his own deputies, and the consent of fiscal court is not required nor authorized. The 1978 amendment to KRS 70.030, concerning the sheriff's appointment of deputies, deleted the phrase: "with the approval of the county court." [See 1978 Acts, Ch. 63]. However the determination of the number of deputies and their salaries is a responsibility of fiscal court pursuant to KRS 64.530. Funk v. Milliken, Ky., 317 S.W.2d 499 (1958).
FISCAL COURT LIABILITY FOR ACTS AND OMISSIONS OF THE SHERIFF AND HIS DEPUTIES.
The county is not liable for any negligent acts of the sheriff and deputy sheriffs, since, as a political subdivision of the Commonwealth, the county government is clothed with sovereign immunity. Cullinan v. Jefferson County, Ky., 418 S.W.2d 407 (1967) 408.
LIABILITY OF MEMBERS OF FISCAL COURT FOR ACTS AND OMISSIONS OF THE SHERIFF AND HIS DEPUTIES.
The members of fiscal court are not liable for the negligent or wrongful acts and omissions of the sheriff and his deputies. The rule is that public officers are responsible only for their own misfeasance and negligence. Public officers are not responsible for the negligence of those employed by them if they have employed persons of suitable skill. Moores v. Fayette County, Ky., 418 S.W.2d 412 (1967) 414. But here the sheriff and his deputies are not "employees" of the county and fiscal court in that sense.
A DEPUTY SHERIFF'S BOND.
Question No. 2:
"Can a deputy sheriff serve without a bond?"
SHERIFF'S LIABILITY FOR ACTS AND OMISSIONS OF HIMSELF AND HIS DEPUTIES.
As we said above, an officer is liable for his own personal misfeasance, deliberate wrongdoing and negligence. See Spillman v. Beauchamp, Ky., 362 S.W.2d 33 (1962); and Carr v. Wright, Ky., 423 S.W.2d 521 (1968) 522.
Now as to the sheriff's liability for the acts or omissions of his deputies, KRS 70.040 reads:
"The sheriff shall be liable for the acts or omissions of his deputies; except that, the office of sheriff, and not the individual holder thereof, shall be liable under this section. When a deputy sheriff omits to act or acts in such a way as to render his principal responsible, and the latter discharges such responsibility, the deputy shall be liable to the principal for all damages and costs which are caused by the deputy's act or omission. "
KRS 70.040, in effect, provides that the sheriff has no personal liability for the acts or omissions of his deputies. It says that the "office of the sheriff," not the individual holder of the office, shall be so liable. In practical terms this means that any damage claims against the "office of sheriff" would have to come out of excess fees, if there are excess fees, of the sheriff's office. Otherwise, there can be no monetary recovery. The legislature is saying here that no recovery for injuries resulting in death or for injuries to person or property can be had against the sheriff, personally, in connection with the acts or omissions of his deputies. The source of recovery for damages, etc., is shifted from the sheriff, personally, to any excess fees, if there are any in a particular year.
Thus the sheriff may require his deputies to execute bond to cover their responsibility for indemnifying the office of the sheriff for any damages and cost occasioned by their wrongful act or omission.
KRS 70.040 RAISES CONSTITUTIONAL QUESTIONS.
(1) The question is raised as to whether the statute violates §§ 3 and 171 of the Kentucky Constitution, since it might be contended that the substitution of excess fees of the sheriff's office for the personal liability of the sheriff is not a public purpose.
(2) The question is raised, under §§ 14, 64 and 241 of the Constitution, as to whether or not the statute abolishes the right of action for negligence against the sheriff, personally, and for the sheriff's liability substitutes the excess fees of the sheriff's office, which excess fees furnish a substantially lower monetary potential of recovery.
First, it could be argued that the complete removal of the sheriff from any personal liability is not authorized by any legislative declaration of the public purpose, or underlying facts in support, to be subserved. We can understand how a statute that would insulate a public official from liability if he commits no wrongdoing and is himself guilty of no negligence or wrongful act or omission would be in the public interest. Such a statute would be merely declaratory of the common law rule enunciated by the courts. See Spillman v. Beauchamp, Ky., 362 S.W.2d 33 (1962) 36. The courts leave it to the legislature to determine public purpose, as envisioned in §§ 3 and 171, Kentucky Constitution. The courts will not disturb such legislative determination so long as it has a reasonable basis. Industrial Develop. Auth. v. Eastern Ky. Reg. Pl. Com'n, Ky., 332 S.W.2d 274 (1960) 276. However, it is up to the legislature to spell out rather clearly and precisely just what is determined to be a public purpose. Ibid., pp. 276-277. See Faulconer v. City of Danville, 313 Ky. 468, 232 S.W.2d 80 (1950). The court in that case wrote that "The legislative determination of what is a public purpose will not be interfered with by the courts unless the judicial mind conceives it to be without relation to the public interest or welfare and to be within the scope of legitimate government." In the cases cited the legislative declaration of public purpose and the supportive socio-economic facts were rather clearly spelled out.
In addition, the Court held prior to the 1972 amendment of KRS 70.040 that a sheriff is liable for damages resulting from his own negligence or deliberate wrongdoing. Carr v. Wright, Ky., 423 S.W.2d 521 (1968) 522. Under the circumstances of such personal liability it could hardly be argued that the shifting of that liability to the county treasury [sheriff's excess fees go to county treasury] can be characterized as a public purpose. See Funk v. Milliken, Ky., 317 S.W.2d 499 (1958). To the contrary, it could be suggested that such financial liability on the part of the "sheriff's office" or county treasury would not be in the public interest.
In Hennessy v. Stewart, Ky., 283 S.W.2d 716 (1955), the old Court of Appeals held that premiums for insurance for the protection of the circuit court clerk to indemnify him against a "personal liability" should be paid by the clerk. This means that underwriting the personal liability of a sheriff is not for the public treasury or public funds.
Now as to the second question relating to constitutionality. The argument might be that the statute abolishes a right of action, first recognized under the common law and later enacted into a statute, for negligence against the sheriff, personally. Further, it might be advanced that the statute impermissibly substitutes for the sheriff's personal liability the liability of the excess fees of the sheriff's office, belonging to the county treasury. Under that argument the idea would be that the abolishing of the sheriff's liability and the substitution, not being an equal or equivalent substitution, would violate §§ 14, 54 and 241 of the Kentucky Constitution, when read together.
Section 14 of the Constitution guarantees that for any injury done him in his person or property, any person shall have a remedy by due course of law.
Section 54 of the Constitution provides that the General Assembly shall have no power to limit the amount to be recovered for injuries resulting in death or for injuries to person or property.
Section 241 provides in part that whenever the death of a person shall result from an injury inflicted by negligence or wrongful act, then, in every such case, damages may be recovered for such death from the corporations and persons so causing the same.
The provision that when the act or omission of the sheriff's deputies renders the sheriff liable and the sheriff discharges that liability, and the deputies shall be liable to the sheriff for any such damages and costs arising out of the deputies' wrongdoing, was enacted as early as 1893. See Carroll's Kentucky Statutes, § 4561. That provision was retained in the 1942 revision of the statutes. See KRS 70.040 (1942). The statute also added the sentence: "The sheriff shall be liable for the acts or omissions of his deputies. " When KRS 70.040 was amended in 1972 [1972 Acts, Ch. 363], the legislature merely added this language: "except that, the office of sheriff, and not the individual holder thereof, shall be liable under this section." (Emphasis added.) Thus, it can be contended that the retention of the language concerning the sheriff's right to expect indemnity from his deputies it he is made responsible for their [deputies'] wrongful acts in no way alters the intended abolition of the sheriff's personal liability by the 1972 amendment. We, from 1972 forward, interpret it to mean that the deputies' personal liability for their own wrongdoing in terms of indemnifying the sheriff calls for indemnifying the "sheriff's office," which means excess fees.
Undoubtedly KRS 70.040, in the 1942 revision, in providing that the sheriff shall be liable for the acts or omissions of his deputies, was merely declaratory of the common law. See 70 Am.Jur.2d, Sheriffs, Police, and Constables, § 99, p. 198. A general rule, as stated in 80 C.J.S., Sheriffs and Constables, § [Illegible Word] is that a "sheriff is liable for acts, defaults, or misconduct of a deputy committed in the performance of official duties." See Jones v. Van Bever, 164 Ky. 80, 174 S.W. 795 (1915) 801, and Lawson v. Burnett, Ky., 471 S.W.2d 726 (1971).
Thus, KRS 70.040, as the argument would to abolishes a common law and statutory right of action, for injuries to a person caused by negligence or for death caused by negligence of the sheriff's duties, against the sheriff which is in possible violation of §§ 14, 54 and 241, when read together. See Saylor v. Hall, Ky., 497 S.W.2d 218 (1973) 222. Under that line of thinking, it might be said that in the abolishing of the common law right (and statutory) to sue the sheriff for negligence of his deputies, the General Assembly failed to make a reasonable or equivalent substitution. Statistics furnished by the State Auditor's Office indicates that the average general obligation bond made by sheriffs in rural Kentucky is $10,000. But under the common law or statute (prior to the 1972 amendment) he could be sued personally, and that would have subjected whatever assets he may have had to an in personam judgment. On the other hand, the excess fees of the sheriff's office in rural Kentucky goes from zero to very minimal sums. It has been estimated by the State Auditor's Office that in rural Kentucky excess fees in perhaps 50% of the sheriff's offices exist in no amount. It can be seen that in abolishing the right of action against the sheriff, the substitution in many instances turns out to involve a "pig in a poke," i.e., a substantially lesser potential level of monetary recovery, even zero funds. See Ludwig v. Johnson, 243 Ky. 534, 49 S.W.2d 347 (1932), and Happy v. Erwin, Ky., 330 S.W.2d 412 (1959).
Under the circumstances, we think the constitutional problems relating to KRS 70.040 address themselves to the General Assembly. We are mailing a copy of this opinion to Mr. Vic Hellard, Director, Legislative Research Commission, for whatever action he deems appropriate. Such constitutional questions eventually, of course, can only be resolved by the courts under the statute as presently worded.
Your third question about fiscal court's protecting itself from liability relating to acts or omissions of the deputies has been answered above.