Request By:
Mr. Hugh Hall
Harlan County Judge Executive
P.O. Box 998
Harlan, Kentucky 40831
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You request an opinion as to the legality of the county special deputies.
You refer to KRS 70.045, which reads, as amended by H.B. 298 (1982 regular session), as follows:
(1) The sheriff in each county may appoint and have sworn in, and entered on the county clerk order book, as many special deputies as needed to assist him in the execution of his duties and office in preparation for or during an emergency situation, such as fire, flood, tornado, storm, or other such emergency situations. For purposes of this section only, an emergency situation is a condition which, in the judgment of the sheriff, requires a response immediately necessary for the preservation of public peace, health or safety, utilizing special deputies previously appointed in preparation for the contingency.
(2) The special deputy shall:
(a) Be appointed and dismissed on the authority of the sheriff;
(b) Not receive any monetary compensation for his time or services;
(c) Serve at the request of the sheriff, unless personal conditions rule otherwise;
(d) Be answerable to and under the supervision of the sheriff, who shall be responsible for the actions of the special deputy; and
(e) Be appointed regardless of race, color, creed or position.
(3) The position of special deputy as created and defined in subsections (1) and (2) is subject to the provisions of this section only.
The bill contained an emergency clause and became effective upon its passage and approval by the Governor. The Governor signed it on March 25, 1982. See § 55, Kentucky Constitution.
The statute, as amended, permits the sheriff to appoint special deputies, without pay, to aid him in connection with any dire emergency, such as a fire, flood, tornado or storm. An emergency situation is defined as a condition which, in the judgment of the sheriff, requires a response immediately necessary for the preservation of public peace, health or safety. The sheriff has the authority to appoint such special deputies at any time during his term, in preparation for or during an emergency. Thus they may be appointed merely in preparation for an emergency. This means they may be appointed before any emergency arises. The position of special deputy would continue for the sheriff's term. The sheriff may at any time dismiss a special deputy.
Any person appointed shall serve at the request of the sheriff, unless personal conditions rule otherwise.
We find nothing in the act mandatorily requiring a citizen to serve as special deputy.
In connection with whether or not an "office" was created (if it is not an office, it is nothing), as relates to special deputies, this was written in Love v. Duncan, Ky., 256 S.W.2d 498 (1953) at page 501:
"In Taylor v. Commonwealth [305 Ky. 75], 202 S.W.2d 992, the Court laid down the principles by which to determine the status of one as an officer or employe, and these principles were reaffirmed in Nichols v. Marks [308 Ky. 863], 215 S.W.2d 1000, as follows:
"'(1) It must be created by the Constitution or by the Legislature or created by a municipality or other body through authority conferred by the Legislature; (2) it must possess a delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public; (3) the powers conferred, and the duties to be discharged, must be defined, directly or impliedly, by the Legislature or through legislative authority; (4) the duties must be performed independently and without control of a superior power, other than the law, unless they be those of an inferior or subordinate office, created or authorized by the Legislature, and by it placed under the general control of a superior officer or body; (5) it must have some permanency and continuity; and not be only temporary or occasional.'"
Measuring KRS 70.045, as amended, against the above five elements of an office, we find as follows: (1) The function, whatever it is, is created by the Legislature. (2) It possesses a delegation of a portion of the sovereign power of government for the public benefit. (3) The duties conferred are somewhat general and vague. They are apparently sufficient as to defined duties. KRS 70.045(1) provides that the special deputies are to assist the sheriff in the execution of his duties and office in connection with the preparation for and during emergencies. An emergency situation is defined as a condition requiring a response, in the judgment of the sheriff, immediately necessary for the "preservation of the public peace, health or safety." (Emphasis added). Thus this seems to define their duties in terms of assisting the sheriff in his statutory duties relating to the public peace, health or safety, i.e., as relates to law enforcement, but only during an emergency as defined. However, there is nothing in H.B. 298 which defines the duties of the special deputies in "preparation for an emergency" situation, although the special deputy position can continue during the sheriff's term. In a practical sense, the special deputy holds his position before an emergency, during an emergency, and after the emergency. However, this trichotomy of time sequence in holding the position is not matched with a well defined and consistent scheme of duties. (4) The duties, whatever they are, are to be performed under the supervision of the sheriff, to whom they are answerable. (5) The statute, as amended, provides for continuity in the holding of the position.
Although KRS 70.045, as amended, is couched in general and somewhat vague language, it apparently meets the minimal requirements of an "office", as laid out above in Love v. Duncan, except for item no. (3). As to the defined duties in connection with periods not involving an emergency situation, such question will have to be decided by the courts.
You ask about the legality of a volunteer county auxiliary police force.
In OAG 80-13, copy enclosed, we concluded that a fiscal court may, under KRS 67.083(3)(u), establish by ordinance an auxiliary police force. But that would have no connection with the sheriff's office. See OAG 80-13 for the details. Such an auxiliary county police force is not to be confused with a regular county police force established under KRS 70.540.