Request By:
Mr. Sherman Dean, Jr.
Jessamine County Judge/Executive
Courthouse
Nicholasville, Kentucky 40356
Opinion
Opinion By: David L. Armstrong, Attorney General; Nathan Goldman, Assistant Attorney General
In your letter to the Attorney General you ask several questions concerning KRS 189.950(5). That statute states:
"Any constable may, upon approval of the fiscal court in the county of jurisdiction, equip vehicles used by said officer as emergency vehicles with one (1) or more flashing, rotating or oscillating blue lights, visible under normal atmospheric condition from a distance of five hundred (500) feet to the front of such vehicle, and a siren, whistle or bell, capable of emitting a sound audible under normal conditions from a distance of not less than five hundred (500) feet. This equipment shall be in addition to any other equipment required by the motor vehicle laws. Any constable authorized by the fiscal court to utilize blue lights and a siren pursuant to this section shall maintain at least the insurance described by KRS 304.39-110."
In OAG 84-241 we commented on this statute when it was first passed in 1984. We stated that the statute allows a constable to equip a vehicle with blue lights and siren only upon the formal approval of the fiscal court "since the fiscal court is the executive board of the county with both legislative and ministerial powers in 119 counties in Kentucky. Indeed, the corporate powers of a county are to be exercised by its fiscal court in those 119 counties." (Fayette County, as an urban county government, differs.)
Your questions deal with the liability of the county and the revocation of fiscal court's approval.
"(1) Does a fiscal court risk liability for wrongful conduct of constables by approval of blue lights without requiring proof of training as a peace officer and as to safe use of blue lights, sirens, whistles or bells? (Reference is made to Federal Actions under Section 1983 and other theories of liability.)"
The statute, KRS 189.950(5) does not qualify fiscal court's approval. Thus, fiscal court's approval is discretionary and whether the fiscal court's action in approving or not approving is reasonable is a question only the courts can answer. Similarly, whether the fiscal court runs a risk of liability for its approval, is also a question only a court can answer. However, it would appear to us that, for fiscal court to be liable, the wrongdoing by the constable must be directly attributable to the use of the blue lights or siren and the fiscal court must have acted negligently in its decision. We know of no case that would hold the fiscal court strictly liable for a constable's wrongdoing. However, as we stated above, the ultimate answer to this question may only come from a court of competent jurisdiction.
"(2) Can a fiscal court terminate its discretionary approval under KRS 189.950(5) at a later date?"
The statute says nothing about termination of approval. It is silent as to the fiscal court's authority in this regard. However, in our opinion, the power to grant approval implies the power to withdraw such approval. And a fiscal court may exercise expressly conferred authority and such implied powers are as necessary to execute those expressly conferred.
Farris v. Nichols, 286 Ky. 196, 150 S.W.2d 484 (1941). In
Board v. Brawner, 100 Ky. 166, 37 S.W. 950, 38 S.W. 497 (1896) the court held that the power to create an office implied the power to abolish it. In our opinion, similar reasoning applies here.
"(3) If so, is a hearing necessary to terminate the privilege previously granted to a constable? (Does the authority to approve necessarily include the authority to terminate the privilege?)"
We have answered part of this question above. As to a hearing requirement, we can find no statutory requirement that a hearing be given to a constable prior to termination of approval. Whether the constitutional principle of due process requires a hearing is a question only a court can answer. However, it would appear to us that it would have to be held that the constable had a property right in the blue lights and siren to be entitled to a hearing, a proposition which we do not find credible.
"(4) If so, what type hearing by fiscal court is necessary to revoke or terminate the privilege?"
Our answer to No. 3 makes this question moot. However, the fiscal court may wish to notify the constable that it intends to consider termination of the privilege at a particular meeting and allow the constable to address the meeting and answer questions from the fiscal court.