Request By:
Mr. Frank H. McCartney
Fleming County Attorney
Courthouse
Flemingsburg, Kentucky 41041
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your question is whether or not the fiscal court can adopt personnel policies by ordinance for the county employees, including the county road department, and then apply such policies to deputies of constitutional officers, such as the sheriff, jailer and county clerk. Such deputies are appointed by those constitutional officers at their will. See § 99, Kentucky Constitution, KRS 70.030 and 71.060. The deputies are "appointed" , not "employed". See Tanner v. McCall (U.S.C.A. -5) 625 F.2d 1183 (1980), for similar Florida law. The constitutional officers in Kentucky have control over the selection and retention of their deputies. They are also civilly responsible for their actions acting as deputies. Thus where the term of a deputy sheriff is not otherwise fixed by statute, he holds office during the term and at the pleasure of the sheriff who appoints him. 80 C.J.S., Sheriffs & Constables, § 26, p. 193.
The fiscal court has the authority to set the number and salaries of such deputies, under KRS 64.530, but that is the extent of it. The fiscal court has no general statutory has not general statutory authority to deal with the deputies of county constitutional officers, other than that permitted in KRS 64.530.
Funk v. Milliken, Ky., 317 S.W.2d 499 (1958); Milliken, Ky., 317 S.W92d 499 (1958); and
Fiscal Court v. City of Louisville, Ky., 559 S.W.2d 478 (1977); KRS 67.080; and KRS 67.083.
Thus if the ordinance in question goes beyond the number and salaries of deputies, as applied to such deputies, it would be illegal.
Next, you ask whether or not the county constitutional officers can adopt personnel policies applicable to their deputies.
It is true that the deputies of those constitutional officers are public officers who are wholly responsible to the constitutional officer who appoints them.
Howard v. Saylor, 305 Ky. 504, 204 S.W.2d 815 (1947) 817. However, the constitutional officers have no inherent authority to devise personnel policies for their deputies. The constitutional officers must look to the statutes for any application of personnel rules. For example, see KRS 337.285, relating to time and a half for employment.
In addition, the terms "officer" and "employee" are not generally interchangeable. These deputies are officers. See Howard v. Saylor, above, for the five (5) requisites of an "officer". See also 67 C.J.S., Officers, § 7, p. 233. A public office is created by law and the statutes must be looked to which define the officer's powers and duties.