Request By:
Mr. Ray Powell
Henry County Sheriff
Courthouse
New Castle, Kentucky 40050
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You request the opinion of this office as is the legality of you, as sheriff, sending notices for merchants on cold checks and collecting a fee from the persons writing the cold checks.
Under your procedure, the merchants would bring the cold checks to your office. Then your office would send out the ten (10) day notices as required by KRS 514.040(4)(5). You would put in your notice letters to the cold check writers that there would be a ten dollar ($10) charge payable to the sheriff's office for services if those checks were not picked up by the person writing them within ten (10) days. You would then return the checks to the merchants in order for them to prosecute on the cold checks, as they wished.
Question No. 1: Can a sheriff legally provide such services to merchants in connection with sold checks?
Question No. 2: Whether or not it would be permissible to collect the fee?
We assume your letters to the writers of cold checks would contain the warning that if the check is not paid within ten (10) days, the person helding the check has the legal right to obtain a warrant of arrest for the check issuer under KRS 514.040. The system permits the payee to prosecute under KRS 514.040 where the ten days pass without the checks' being made good.
First, as relates to the fee question, there is no legal way for your enforcing a ten dollar ($10) fee charge against the check writer, where the check is not made good in ten days. It has no statutory basis and no contractual basis. Actually, the merchants are merely letting you fend for yourself in demanding a fee where collection is unsuccessful.
In addition, even where you eliminate this ten dollar fee aspect and do not demand it, your providing such services would be against the public interest. Prior to the passing of the ten (10) day period in the criminal statute, KRS 514.040, the debt is purely a civil matter. In that context, as a county peace officer, a warrant server and an arrestor, you are really saying, on behalf of the check payee, that the criminal process may follow if the ten days go by without the check's being paid. We do not believe that as a peace officer your daties should embrace the wielding of such a criminal prosecution threat, even as an agent of the check payee. Under KRS 70.010, you are sworn to faithfully and impartially execute the duties of your office.
Thus your duties do not embrace giving such notice for a fee or no fee.
In
Jordan v. Commonwealth, Ky., 371 S.W.2d 632 (1963), the court stressed the ethical necessity for a criminal prosecutor's not mixing civil legal representation with the criminal process.
Where some of these checks are $100 or more, a class D felony is involved. KRS 514.040(6). Then under KRS 431. 005(1)(c), you could arrest such offending check writer for a felony without a warrant, since as a peace officer you have reasonable grounds to believe the person being arrested has committed a felony. As Justice Palmore wrote in lordon v. Commonwealth, above, the administration of justice must be kept above suspicion.
Our conclusion is that your office cannot assist in such civil debt collection, even with no charge. The charge and function are not authorized by statute. The exercise of the function would be against public policy, since you are inevitably and inextricably involved as a peace officer in serving criminal process and making arrests, with or without a warrant. Your peace officer role must not be converted into a "threat" mechanism as an agent of check payees.