Request By:
Mr. John W. Garner
Pulaski County Judge Executive
P.O. Box 712
Somerset, Kentucky 42501
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
As County Judge Executive of Pulaski County, you request our opinion on certain matters pertaining to KRS 70.045, the Special Deputies statute. That 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."
Your question, as it appears in your request letter, reads:
"We recognize that KRS 70.045 provides for the appointment of special deputies and relates to emergency situations. We are very concerned regarding the definition or interpretation of the term 'emergency situations' as that term applies to the statute.
"Specifically, we would like to know whether or not the county sheriff or the county judge executive or the fiscal court, or any combination of these officers, could declare a 'continuing emergency situation. ' Particularly, we are concerned with whether a 'continuing emergency situation' may be declared when a county has an insufficient number of deputies to property provide for law enforcement within the county and when the circumstance is created by a fiscal restraint occurring through a lack of money being available to the office of the county sheriff. "
KRS 70.045, as originally enacted in 1976 (Ch. 154, § 1, regular 1976 session) , provided that the sheriff in each county may appoint and have sworn in as many special deputies as needed to assist him in the execution of his duties and office "during an emergency situation, such as fire, flood, tornado, storm, or other such emergency situations." (Emphasis added). Such deputies were to be appointed and dismissed by the sheriff; and they were to receive no compensation for their services. They were to serve for the duration of the emergency situation, or any part thereof, as directed by the sheriff.
The 1982 amendment (Ch. 109, § 1, 1982 regular session) , added the provision that the appointments would be entered on the county clerk order book. It added the provision that the sheriff could appoint 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, etc. (Emphasis added). The amendment added this provision: "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. " (Emphasis added).
The previous provision, that the special deputies would serve for the duration of the emergency situation or any part thereof, as directed by the sheriff, was deleted. The previous term "temporary position" under the amendment reads "the position." The amendment adds Section 2: "Whereas, it is increasingly difficult to provide adequate law enforcement services, an emergency is declared to exist, and this Act shall become effective upon its passage and approval by the Governor."
It is our view that Section 2 of the 1982 Amendment Act must inevitably be viewed in terms of its integration with Section 1 of that Act. Standing alone, Section 2 is meaningless as an affirmative act.
The language of KRS 70.045(1) in effect defines an emergency situation as a fire, flood, tornado, storm or other such emergency situation, which produces a condition requiring the preservation of public peace, health or safety.
The court, in George Wohrley, Inc. v. Com., Dept. of Rev., Ky., 495 S.W.2d 173 (1973) 174, pointed out that when a statute defines words used therein, the courts must look to the legislative definition rather than the dictionaries or common usage. Thus the statute seems to define their duties in terms of assisting the sheriff in his statutory duties relating to the public peace, health or safety, i.e., as relates to law enforcement, but only during an emergency as defined by the express examples of fire, flood, tornado, storm, or other such emergency situations. See OAG 82-254, dealing with that interconnection, copy enclosed.
In addition, as concerns the phrase in KRS 70.045(1): "or such other emergency situatins", the effect of the rule of ejusdem generis is that where, in a statute, general words follow a designation of particular subjects or classes of persons, the meaning of the general words will ordinarily be presumed to be restricted by the particular designation, and to include only things or persons of the same kinds, class or nature of those specifically enumerated, unless there is a clear manifestation of a contrary purpose. Jefferson County Fiscal Court v. Jefferson County ex rel. Grauman, 278 Ky. 688 128 S.W.2d 230 (1939) 232, 233.
We therefore conclude, first, that the special deputies can only serve under the sheriff's appointment in specific relation to one or more of the specifically enumerated kinds of emergencies contained in the statute, or in relation to any other emergency of the same kind, class or nature.
Only the sheriff can make the appointments. The county judge executive and the fiscal court have no authority to declare a "continuing emergency situation. " Further, the nature of the emergencies listed in the statute do not contemplate an emergency of a continuing nature. They are all of a rather short duration.
It must be understood that the statute does not deal with the usual and lasting problem of law enforcement in the county generally. The law enforcement aspect is finely tuned to mesh only with one or more of the categories of emergencies set out expressly in the statute. The law is not designed to augment the existing deputy staff arrangements for the ordinary, usual and lasting law enforcement purposes.
As you know, KRS 64.530 requires a fiscal court in the year of the sheriff's election, to establish the number of deputies for the sheriff, for general law enforcement and tax collecting purposes; and during the term such number of regular deputies cannot be changed. Such deputies must be properly salaried. Funk v. Milliken, Ky., 317 S.W.2d 499 (1958).
Thus the vision of KRS 70.045 as authorizing an augmented sheriff's staff for general law enforcement purposes is clearly erroneous and deceptive.
Like the poor, the crime problem will be with us always. It is, however, not an emergency in the sense envisioned by KRS 70.045. Flexibility in improving the general law enforcement picture in Kentucky could come about through amending KRS 64.530, to provide that the number of regular deputies can be changed during term to meet actual needs, and through providing ample government revenue for the salaries of augmented sheriff's deputy staffs.