Request By:
Alan J. George
Woodford County Attorney
Opinion
Opinion By: JACK CONWAY, ATTORNEY GENERAL; Matt James, Assistant Attorney General
Opinion of the Attorney General
Alan J. George, Woodford County Attorney, has requested an opinion of this office on three issues concerning county detectives that are employed by counties that do not contain a consolidated local government: (1) whether such a county detective has arrest powers; (2) whether such a county detective needs to be sworn and wear a badge; (3) whether an off-duty police officer employed as a county detective in such a county has arrest powers. We advise that: (1) a county detective employed by a county that does not contain a consolidated local government does not have arrest powers; (2) a county detective employed by a county that does not contain a consolidated local government may, but is not required to be, sworn in and wear a badge; (3) an off-duty police officer employed as a county detective by a county that does not contain a consolidated local government retains arrest powers consistent with the law.
Regarding the first question, KRS 69.360(1) provides in relevant part:
A county attorney may, as funding allows, employ one (1) or more county detectives. County detectives in counties containing a consolidated local government shall have the power of arrest in the county and the right to execute process statewide.
KRS 69.360(1) allows county attorneys to employ county detectives. It further adds that county detectives in counties containing a consolidated local government have arrest powers.
"It is a familiar and general rule of statutory construction that the mention of one thing implies the exclusion of another."
Fox v. Grayson, 317 S.W.3d 1, 8 (Ky. 2010). KRS 69.360(1) expressly gives arrest powers only to county detectives in a county that contains a consolidated local government. It does not give arrest powers to county detectives generally. In
Steinkamp v. Pendleton County, Ky., No. 05-42, 2011 WL 1324455 (E.D. Ky. Mar. 31, 2011), the court came to the same conclusion. "The authorizing statute provides that county detectives in counties containing a consolidated local government have the power of arrest in the county and the right to execute process statewide. K.R.S. § 69.360(1). However, Pendleton County did not contain a consolidated local government and, therefore, Samples had no authority to arrest. " Id. at *3 n.3. Therefore, we advise that only county detectives employed by a county with a consolidated local government have arrest powers; other county detectives do not.
Regarding the second question, KRS 69.360(3) provides that "a county detective certified in accordance with KRS 15.380 to 15.404 shall have the right to execute civil process statewide. " KRS 69.360(4) provides that "a county detective who is not certified in accordance with KRS 15.380 to 15.404 shall have the right to serve civil process only in the county in which the county attorney is elected." KRS 15.380(4) provides that "the following officers may, upon request of the employing agency, be certified by the council . . . (j) . . . county detectives employed under KRS 69.360." KRS 15.380(4) provides that certification of county detectives employed by counties that do not contain a consolidated local government is permissive and not mandatory. 1 Accordingly, such a county detective may be certified and wear a badge, although it is not required. However, since KRS 69.360(4) provides that such a county detective who is not certified may only serve civil process in the county of employment, such a county detective would need to be certified in order to execute civil process statewide under KRS 69.360(3).
Regarding the third question, an off-duty police officer employed as a county detective has arrest powers consistent with the law. " It is the nature of the act performed, not the clothing of the actor or even the status of being on-duty, or off-duty, which determines whether the officer has acted under color of law."
Stengel v. Belcher, 522 F.2d 438, 441 (6th Cir. 1975). We have previously advised that "a police officer's off-duty status does not relieve him of his obligation to enforce the law nor does it limit him in the discharge of his police authority in the presence of criminal activity." OAG 80-146. As long as the officer is acting in accordance with the law, an off-duty police officer employed as a county detective by a county that does not contain a consolidated local government has the arrest powers of a peace officer.
In summary, we advise that a county detective employed by a county that does not contain a consolidated local government: (1) does not have arrest powers; (2) may be certified and wear a badge, but is not required to, and (3) if an off-duty police officer, has arrest powers consistent with the law.
Footnotes
Footnotes
1 However, certification for county detectives employed by counties containing a consolidated local government is mandatory. KRS 15.380(1)(i); KRS 69.360(2).