Request By:
Michael R. Greene, Esq.
713 West Main Street
Louisville, Kentucky 40202
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Gerard R. Gerhard, Assistant Attorney General
Re: Whether Sheriff May Employ "Assistants" Who are Not "Deputy Sheriffs." AGO Corr. No. 91-(O)-894.
By letter of February 28, 1991, you indicate that Jefferson County Sheriff Jim Greene asked that this office advise on whether a sheriff's office may employ nonsworn employees (assistants) in professional, technical and administrative positions.
As explained below, in our view, subject to proper budgeting, and approval of the fiscal court (or urban county council where applicable) regarding their number and compensation, a sheriff may employ "assistants" who are not sworn as deputy sheriffs.
Beginning with OAG 38,675 in 1956, and in at least seven later opinions (OAG's 65-723; 69-265; 74-821; 81-219; 82-25; 82-460 and 83-301), this office adhered to the view that § 99 of the Constitution of Kentucky and KRS 70.030 effectively required that all employees of the sheriff were to be "deputies. " The rationale was that if a sheriff could employ an "assistant" other than a "deputy, " the nonsuccession provision of § 99 could be readily circumvented. We also observed that the terms "deputy" and "assistant" were used interchangeably by those who drafted our Constitution, and that KRS Chapter 70 was silent as to a sheriff's "assistant" as such.
The "nonsuccession provision" of § 99 of the Constitution, however, was eliminated in November, 1984, with ratification by the voters of the amendment proposed in Acts, 1984, Ch. 35. That Constitutional change eclipses the principal rationale underlying prior opinions of this office bearing upon the question you have posed. The opinions indicated above are distinguished in view of the amendment of § 99. They are not apposite to determining whether, under current Constitutional language, a sheriff may employ both "deputies" and "assistants."
Aside from the Constitutional concerns is the question of whether our statutes permit a sheriff to employ both "deputies" and "assistants." Several of our opinions noted, in substance, that KRS Chapter 70 (relating in part to responsibilities of the sheriff) contemplates that the sheriff's staff must consist of "deputies" regardless of the function performed. OAG 83-301 noted that Chapter 70 is silent as to a "sheriff's assistant," as such.
While KRS Chapter 70 might not "contemplate" an "assistant" of the sheriff other than a "deputy, " KRS Chapter 64 does. KRS 64.530 (3) and (4) expressly provide for the fiscal court to establish compensation for both "deputies" and "assistants." Similarly, KRS 64.345(5), which applies to counties containing a city of the first class and counties with an urban-county form of government, provides, in part, for establishment of the "number of deputies and assistants allowed to each officer and the compensation allowed to each deputy and assistant . . . " (Emphasis added.) In other words, there is specific legislative provision for two classes of employees of certain county officers - (1) deputies and (2) assistants.
Although our prior opinions make much of the "interchangeable use" of the terms "deputy" and "assistant," we believe the legally preferred approach is to give effect to the literal words of the legislature, unless ambiguity exists. As noted, the legislature has expressly provided for both a "deputy" and an "assistant." No ambiguity exists regarding those express terms.
The failure of KRS Chapter 70 to contemplate or provide for "assistants" in addition to "deputies, " does not lessen the import of the express provision for "assistants" found in KRS 64.530 and 64.345. The portion of KRS Chapter 70 that relates to sheriffs deals principally with the "peace officer" or police functions of the sheriff.
We see no likelihood that the legislature would intend to require staff not having responsibility for law enforcement matters (e.g., direct custody of prisoners, service of warrants, or exercise of the power of arrest) , to have the "peace officer" status of a deputy sheriff, with the training, duties, and costs associated therewith. An employee carrying out what might be termed administrative rather than law enforcement duties for the sheriff's office, need not be required to have the power of arrest, with the associated duties and risks, in order to carry out duties obviously reasonable in assisting the sheriff or the sheriff's office, although not involving exercise of the power of arrest or other police type functions.
While we have indicated that a sheriff may have "assistants" who are not deputy sheriffs, we caution that hiring for such positions is contingent upon approval by the fiscal court (urban-county council where applicable) of the number and the compensation of the positions involved. KRS 64.345(5), which purports to delegate approval of the budget of the sheriff in certain counties to the chief Judge of the Circuit Court, is, in our view, unconstitutional. Although the Courts have not ruled on this Constitutional question, the sheriff may wish to seek a declaratory judgment ruling from the courts on this point, however, in our view, such provision is an attempt to delegate legislative authority to the courts, in violation of § 27 and § 28 of the Constitution of Kentucky. Cf., Legislative Research Com'n. v. Brown, Ky., 664 S.W.2d 907, 912 (1984). And see, Meade County v. Neafus, Ky., 395 S.W.2d 573, 574 (1965).
For the reasons indicated, in our view, a sheriff, subject to proper budgeting and approval of the fiscal court (urban county council where applicable) as to their number and compensation, may employ "assistants" as well as "deputies. "