Request By:
Mr. Terry O. McKinney
Lyon County Judge Executive
P.O. Box 698
Eddyville, Kentucky 42038
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Several questions relating to county government are contained in your letter. Question No. 1 reads:
"Is it a conflict of interest for an elected Magistrate to serve as a special deputy? "
Special deputies are appointed by the sheriff in preparation for or during an emergency situation, such as fire, flood, tornado, storm, or other such emergency situations, pursuant to KRS 70.045. Such deputies may be appointed and dismissed at the will of the sheriff. The special deputies receive no compensation for their services. However, KRS 61.080(2) provides in part that the offices of justice of the peace (here, the magistrate) and deputy sheriff shall be incompatible with each other. It could be argued that KRS 61.080 only contemplates regular deputy sheriff positions. See KRS 70.030 and KRS 64.530. KRS 61.080 was last amended in 1978, which was after the original enactment of KRS 70.045 (Acts 1976, Ch. 154, § 1). KRS 61.080, as amended in 1978, carries no reference to a "special deputy sheriff." It refers only to a "deputy sheriff. " In addition, a special deputy is not a regular deputy. It involves a very temporary and limited officer position with an extremely narrow function. Until the courts tell us otherwise, we are of the opinion that no statutory or constitutional incompatibility or conflict of interest as to those two positions exists. See § 165, Kentucky Constitution.
Aside from any specific constitutional or statutory provisions relating to incompatibility, an incompatibility would depend upon the character, nature and relation of the offices. The question is whether one office is subordinated to the other, or the performance of one interferes with the performance of duties of the other position, or whether the two functions are inherently inconsistent, or whether the occupancy of both offices is detrimental to the public interest. See
Barkley v. Stockdell, 252 Ky. 1, 66 S.W.2d 43 (1933) 44; and
Hermann v. Lampe, 175 Ky. 109, 194 S.W. 122 (1917) 126. On the face of it, we can see no common law or practical incompatibility in holding the two positions.
Question No. 2:
"Is it possible for the Sheriff to appoint special deputies without these people being sworn in by the Judge/Executive?"
KRS 70.045 provides that the sheriff appoints the special deputy; but the deputy must be sworn in. See § 228, Kentucky Constitution, concerning the oath, and KRS 62.010, requiring the officer, before entering upon the duties of his office, to take the oath required by law. Under KRS 62.020, the official oath of any officer may be administered by a judge, county judge executive, notary public, clerk of a court, or a justice of the peace, within his district or county.
Question No. 3:
"Can a special deputy receive compensation for his work?"
The answer is "no". KRS 70.045(2)(b) expressly provides that special deputies shall "not receive any monetary compensation for his time or services." It is strictly a gratuity.
Question No. 4:
"Can Fee Offices be required by the Fiscal Court to obtain several documented prices before purchasing items in excess of $500?"
A county officer who is compensated wholly or in part from fees is required to pay over to the county, at the end of each calendar year of his term, the excess of receipts over and above the amounts allowable for his personal compensation, the compensation of his legally authorized deputies, and authorized official expenses.
Funk v. Milliken, Ky., 317 S.W.2d 499 (1958). Under KRS 64.530(3), the fiscal court may fix the maximum amount that such fee officer may expend each year for expenses of his office. In Funk v. Milliken, the court wrote that the fiscal court may fix, in advance, the categories of reasonable office expenses that will be allowed and the maximum amount that will be allowed for each category. That describes the control of fiscal court over the reasonable office expenses of fee officers, payable out of the fees of office.
However, should a fee officer have to purchase items of equipment or personal property that are not consumable but will have a reasonable life span, such as motor vehicles, the title would be taken in the name of the county and the purchases would be subject to the county's handling of the purchases and applicable provisions relating to bidding law under KRS 424.260 or KRS Chapter 45A (where the fiscal court has adopted the provisions of KRS 45A.345 through 45A.460). Where the county clerk or sheriff has adopted KRS 45A.345 through 45A.460, such officer could handle the purchase under the applicable bidding law in KRS Chapter 45A, but only with the approval of the fiscal court; and the title to the non-consumable property or property of any reasonable life span would be in the name of the county. Bear in mind that a fiscal court has the explicit power to regulate and control the fiscal affairs and property of the county. See KRS 67.080(1)(c).
However, no county officer can engage in a bidding contract of purchase of supplies or equipment, i.e., binding on the county, where the money for the purchase is to come directly out of the county treasury.
Bath County v. United Disinfectant Co., 248 Ky. 111, 58 S.W.2d 239 (1933). The fiscal court is the authority in contracting for county supplies or equipment, payable out of the county treasury. In connection with this Question No. 4, we are speaking only of fee officers in counties of less than 75,000 population. Cf. OAG 83-249, copy enclosed.
Question No. 5:
"Can the spending of fee monies in Fee Offices be regulated by Fiscal Court or are we solely restricted to managing budget items only?"
We have explained that under Question No. 4, above. See