Request By:
Hon. Kenneth B. Kusch
Muhlenberg County Attorney
P.O. Box 302
Greenville, Kentucky 42345
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
On behalf of the Muhlenberg County Fiscal Court and the Muhlenberg County Sheriff's Office, you request our opinion in connection with deputy sheriffs.
Prior to the first Monday in May of the election year of 1981, the Fiscal Court set the number of deputy sheriffs at seven (7) (full time). Recently, the Sheriff of your county requested that the Fiscal Court authorize two (2) additional deputies to serve without compensation. On the advice of this office, you advised the Fiscal Court that the law does not permit the appointment of deputy sheriffs without compensation. In order to accommodate the Sheriff, the Fiscal Court authorized two (2) additional part-time deputies to be paid at the hourly rate at which other deputy sheriffs were compensated within the limits set by Fiscal Court at the time they were authorized.
You ask whether the recent order authorizing the additional deputies was valid.
KRS 64.530(3) and (4) relate to the Fiscal Court's authority to fix the number and salaries of deputy sheriffs. Their compensation can be changed during the term. However, since there is no explicit provision for a change in the number of deputy sheriffs during the term, the number fixed in the year of the election of the Sheriff must govern during the term.
In
Funk v. Milliken, Ky., 317 S.W.2d 499 (1958), the Court ruled that under KRS 64.530 the number and compensation of deputies of the county constitutional officers must be fixed by the Fiscal Court before the first Monday in May in the year of the election of the constitutional officer (such as the sheriff), and no change in number and compensation during the term was authorized. KRS 64.530(4), by amendment, now provides that the compensation of deputies of constitutional officers may be reviewed and adjusted during term. However, the statute has not been amended to provide for a change in the number of deputies during term.
CONCLUSION
It is our opinion that the recent order of Fiscal Court authorizing two additional part-time deputy sheriffs and the subsequent appointments thereunder are illegal, since the present statute (KRS 64.530) makes no provisions for such. Cf. KRS 71.060, providing that any jailer may, with the approval of the Fiscal Court, appoint additional deputies at any time during the jailer's term of office. We affirm our similar conclusion in OAG 83-262. In addition, the statutes do not envision part-time deputies. They relate only to full-time deputies.
We suggest that the Fiscal Court enter an order declaring the authorization of additional deputies to be invalid and thus setting aside the original order. The Sheriff, at that point, would be required to release the two newly created and appointed deputies.
If the counties are interested, they should go to the General Assembly requesting an amendment of KRS 64.530 to provide for additional deputies during term, generally, where needed.