Request By:
John D. Sims, Esq.
Robertson County Attorney
Mt. Olivet, Kentucky 41064
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter stating that the City of Mt. Olivet, a city of the fifth class, would like to hire the county sheriff to patrol the city's streets during the evening hours. You state that the city cannot afford the services of a full-time policeman and it is interested in providing some incentive for the sheriff to patrol city streets when he is not otherwise occupied with his duties as sheriff.
Municipal corporations in Kentucky possess only such powers as are expressly granted, or necessarily implied, in statutes constitutionally enacted.
Juett v. Town of Williamstown, 248 Ky. 235, 58 S.W.2d 411 (1933). Pursuant to KRS 95.700 the city legislative body of a fifth class city is authorized, by ordinance, to establish a police department for the city, appoint its members, and provide for their number, grades, compensation and regulation. There is no statute permitting a fifth class city to provide police services for the city by contracting with groups or individuals, including the sheriff.
In OAG 71-477, copy enclosed, we concluded that cities of the fifth and sixth classes must utilize the statutory provisions of KRS Chapter 95 to provide police protection and services for their citizens. Those cities cannot contract with special local peace officers for police services. (The statute pertaining to special local peace officers, KRS 61.360, has since been repealed anyway.) We direct your attention to OAG 71-477, at page two, where we said in part as follows:
". . . It is also settled that when the Legislature confers a power upon a subordinate body to be performed in a specified manner, there is an implied restriction upon the exercise of the power in excess of the grant.
Johnson v. Correll, Ky. 332 S.W.2d 843 (1960). See also
Jefferson County v. Jefferson County Fiscal Court, 269 Ky. 535, 108 S.W.2d 181, 183 (1937);
Bruner v. Jefferson County Fiscal Court, 239 Ky. 618, 40 S.W.2d 271, 273 (1931) . . . ."
A sheriff, of course, is a county officer (see OAG 74-917, copy enclosed) while a city police officer is a municipal officer (see OAG 74-781, copy enclosed) . KRS 61.080(3) prohibits a person from filling a county office and a municipal office at the same time.
Therefore, it is our opinion that a city of the fifth class has no statutory authority to provide police services for the city by contracting with the sheriff to provide such services. The city must follow KRS 95.700 if it decides to establish a police department and provide police protection in the city. Furthermore, even if the city utilizes KRS Chapter 95, the county sheriff cannot at the same time serve as a city police officer as those two offices are incompatible.