Request By:
Mr. James Hite Hays
Shelby County Attorney
501 Main Street
Courthouse
Shelbyville, Kentucky 40065
Opinion
Opinion By: David L. Armstrong, Attorney General
Recently your sheriff died and one of his deputies was appointed as sheriff of Shelby County. You raise the following questions:
"1. When a sheriff dies does his appointed deputies have to be reappointed by the new sheriff or do they continue to serve?
"2. Can a sheriff appoint elected constables as deputies while the constables are being paid by the county as constables only?
"3. How can deputies be relieved of duties after being appointed?
"4. May non-constables be appointed deputy sheriffs and not be paid unless called upon by the sheriff for assistance?"
The answer to question no. 1 is that the serving of the deputies of the deceased sheriff came to an end upon his death. Deputy sheriffs serve only at the pleasure of the sheriff who appoints them, and their serving can only continue during that appointing sheriff's term unless sooner terminated by that sheriff's death, which was the case here. See KRS 70.030; and
Hodges v. Daviess County, 285 Ky. 508, 148 S.W.2d 697 (1941). The subject deputies could continue to serve only if reappointed by the new sheriff.
The answer to question no. 2 is that a constable could be appointed as a deputy sheriff, since KRS 61.080 does not prohibit a person's filling two county offices. However, such deputy would be required to perform both functions as required by law, otherwise there could be a practical or common law incompatiblity. In
Hermann v. Lampe, 175 Ky. 109, 194 S.W. 122 (1917) 126, the court wrote that a common law incompatibility could arise where from the multiplicity of business in them they both cannot be executed with care and ability, or with impartiality and honesty.
In response to question no. 3, the tenure or serving of the deputies of the deceased sheriff automatically terminated upon the death of the appointing sheriff. Under KRS 70.030, an incumbent sheriff can dismiss his appointees at his pleasure. The statute prescribes no formality. However, the conservative practice would be to deliver to the deputy to be terminated a writing indicating clearly that termination of the deputy's tenure is being effected pursuant to KRS 70.030.
In reply to question no. 4, regular deputy sheriffs must be paid reasonable salaries. Of course, the fiscal court, as required by KRS 64.530, sets the number of deputies in the year of the regular election of the sheriff and the salaries to be paid to the regular deputies. There are only two categories of deputies: (1) regular deputies, as covered in KRS 64.530; and (2) special deputies appointed for emergencies only (fire, flood, tornado, storm, etc.), who serve without pay, pursuant to KRS 70.045. The statutes envision that regular deputies be full time deputies. There are no provisions for part time deputies.
I hope this may be helpful to you.