Request By:
Mr. Ray H. Stoess
Executive Director, KSA
Ky. Sheriff's Boys and Girls Ranch
Box 57
Gilbertsville, Kentucky 42044
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You raise the question, on behalf of the sheriffs of Kentucky, as to whether or not an incumbent sheriff may serve in the new sheriff's office?
We find this in the last sentence of § 99 of the Kentucky Constitution:
"but thereafter no sheriff shall be eligible to re-election or to act as deputy for the succeeding term." (Emphasis added).
Thus under the explicit wording of § 99 of the Constitution, no person elected for the last four year term of sheriff is eligible to be a deputy in the office of the succeeding sheriff (elected for a four year term beginning January 4, 1982).
Of course a person who is appointed or elected to fill out the unexpired term of another is eligible to run for the "succeeding term" or to be a deputy in the "succeeding term." McGinnis v. Cossar, 230 Ky. 213, 18 S.W.2d 988 (1929). The court said that wherever the word "term" appears in § 99 of the Constitution, it is a full term that is referred to.
In considering the intent of the constitutional convention in the promulgation of § 99, it was pointed out to the convention that it was necessary to prohibit the evil of an incumbent perpetuating his control of the office after his regular term expires. In that connection, Mr. Zack Phelps, in submitting the report relating to county officers, in Debates Constitutional Convention (1890), Volume 3, page 4032, said:
"If you believe it best that we should so provide that the duties of the Sheriff shall be performed by him -- that the time of himself and his assistants shall be, in fact given in service to the State, and not in 'fixing his fences' for the ensuing term, we must so extend the ineligibility clause as to really place him beyond the temptations which are necessarily incident to such a Candidacy."
Under KRS 64.530, the fiscal court fixes the number of "deputies" of local constitutional officers. A deputy is empowered to discharge any or all of the statutory duties imposed upon the sheriff, generally. Ellison v. Stevenson, 22 Ky. (6 T.B. Mon.) 271 (1827). See KRS 70.030, relating to the appointment of deputy sheriffs. The deputies are required to take the oath taken by the sheriff under KRS 70.010. See KRS 70.036, 70.040, and 70.060, relating to deputy sheriffs. A deputy sheriff is a peace office (see KRS 446.010(24)) having, inter alia, the power of arrest.
Obviously under § 99 of the Kentucky Constitution an incumbent sheriff is prohibited from being one of the sheriff's "deputies" , for the succeeding term, as described above.
Over the years this office has dealt with the question as to whether the prohibition of § 99 extends to a sheriff's "assistant". We have consistently taken the position that § 99 does not contemplate a sheriff's "assistant" who is not a deputy. See OAG 81-219, copy enclosed, in which we pointed out that the sheriff's assistants must necessarily be deputies. Note that KRS Chapter 70 (relating to sheriffs) is silent as to a mere "assistant" as such. The statutes there use the terminology "deputies" of the sheriff. Section 99 of the Constitution only contains the term "deputy" , not "assistant". Note the quotation from the Constitutional Convention, wherein "assistant" is used synonymously with "deputy" . Also note that the term "deputy and assistants" is a creation of the legislature in KRS 64.530. The compelling point is that if the constitutional writers intended the sheriff to have "deputies" and "assistants" (meaning something other than deputy) then the prohibition against acting as deputy in the succeeding administration could be so earily circumvented. Such was not the intent of the Constitutional Convention.