Request By:
Hon. Arnold B. Lynch
Assistant County Attorney
Christian County Attorney's Office
307 East Fourth Street
Hopkinsville, Kentucky 42240
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You ask what are the arrest powers of county auxiliary policemen.
KRS 70.542 reads as follows:
"(1) Except in counties containing a city of the first class, or counties containing an urban-county government, the fiscal court of any county in which there is an established county police force pursuant to KRS 70.540, may provide for the establishment or abolishment of an auxiliary county police force to perform duties within the county upon such terms and conditions as the fiscal court deems necessary and proper. The fiscal court shall prescribe the number of members comprising such auxiliary county police force, and prescribe rules and regulations that shall govern the powers and duties of the members of such auxiliary county police force, unless otherwise provided in subsection (2) of this section.
(2) A member of an auxilary county police force shall:
(a) Be appointed by the county judge/executive and serve at his pleasure;
(b) Not be construed to be within the definition and application of the terms 'employe' or 'patrolman' as provided in KRS 70.580;
(c) Be answerable and under the direction of the county judge/executive, except when the county judge/executive delegates such authority to the chief officer of the county police force;
(d) Not receive any compensation or benefits for his time or service, except that the fiscal court may provide for the payment of any reasonable and necessary expenses incurred by a member of the auxiliary county police force in the conduct of his official duties; and
(e) Be appointed regardless of race, color, creed or position.
(3) Before any person is appointed as a member of an auxiliary county police force, he shall give bond to the county judge/executive in an amount as prescribed by the fiscal court. The fiscal court may authorize the premium therefor to be paid out of the general funds of the county."
KRS 70.545 (repealed by Acts 1978, Ch. 118, § 19, eff. June 17, 1978), reads:
"The fiscal court of any county may by order provide for the establishment or abolishment of an auxiliary police force to perform duties within the county upon such terms and conditions as the fiscal court deems proper. The order shall prescribe the number of officers and men of such force, the manner of their appointment, and the rules and regulations that shall govern the powers and duties of the members of such force, including the power of arrest. "
Under KRS 70.542, except in counties containing a city of the first class, or counties containing an urban county government, the fiscal court of any county, which has an established county police force under KRS 70.540, may provide for the creation of an auxiliary county police force by proper ordinance. The fiscal court, in such ordinance, in our opinion, has the authority to extend to such auxiliary county policemen the full powers of arrest of a statutory peace officer, including the right to carry a weapon. Under these county legislative conditions, and once the auxiliary county policemen have been duly appointed and have taken oath, they become policemen and peace officers as long as they remain on the force. See McQuillin, Mun. Corps., Vol. 16, § 45.15, and OAG 78-675, copy enclosed. See also KRS 67.083(3)(u), and Fiscal
Court, etc. v. City of Louisville, Ky., 559 S.W.2d 478 (1977) 482.
The earlier statute, KRS 70.545, later repealed, contains the same concept as to the fiscal court's dealing by ordinance with the auxiliary policemen's powers of arrest and related authority. Here we think a consideration of such legislative history is helpful on the intent to vest in fiscal courts the authority to legislatively deal with the auxiliary policemen's powers of arrest, even to the extent of the fiscal court's giving such officers the general powers of arrest.
Shannon v. Dean, 279 Ky. 279, 130 S.W.2d 812 (1939). See KRS 446.010(24) and 431.005.
You ask about the arrest powers of special deputies under KRS 70.045, which statute reads:
"(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."
A "peace officer, " as defined in KRS 446.010(24), includes sheriffs, and other persons with similar authority to make arrests. The authority of arrest of peace officers generally is contained in KRS 431.005.
An argument could be made that the "special deputy" created in KRS 70.045 should be construed to have general powers of arrest, in the absence of any statutory language to the contrary. On the other hand, KRS 70.045 is silent as to that officer's power of arrest. In addition, KRS 70.045(2)(d) provides that such special deputies are answerable to and under the supervision of the sheriff, who shall be responsible for the actions of the special deputy.
It is our opinion that the matter of the arrest powers of the special deputies should be addressed to the General Assembly or to the Courts.