Request By:
Honorable J. Bruce Miller
Jefferson County Attorney
1129 Kentucky Home Life Building
Louisville, Kentucky 40202
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your letter from Sheriff Joe Greene of Jefferson County points up a problem relating to the service of process and various papers by the sheriff's office, which additional work was formerly performed by the magistrates and constables.
You request our opinion as to whether or not the Jefferson Fiscal Court could lawfully provide a salary and office staffing for constables employed by the sheriff for the purpose of serving process and other legal papers.
KRS 24A.140(1) makes the sheriff responsible for attending court, keeping order, and providing the same services to district court as are provided to the circuit court. This would include serving all necessary process and legal papers.
The statutes normally envision that the sheriff carry out his statutory duties with his deputy staff. See KRS 64.530. However, this statute is inflexible since it prohibits a change in the number of deputies during term by fiscal court. The new court system has created a problem in process serving, since the old inferior court process serving has been transferred to the district court.
It is our opinion that, assuming the sheriff's regular deputy staff is inadequate to meet the total statutory responsibilities of the sheriff, including the service of process and legal papers in Jefferson County, he may in writing empower the elected constables, as peace officers, to assist him in the serving of process under his supervision and direction. Such authority stems from the express powers given the sheriff in this emergency in KRS 70.050 [persons may be empowered to execute process], KRS 70.060 [sheriff may command power of the county], and KRS 70.070 [execution of process by sheriff]. The constable's authority to serve process is derivative from the sheriff under KRS 70.050 and 70.060.
The fees accruing as a result of the process serving of such constables under the direction of the sheriff would accrue to the sheriff's office. See KRS 64.090, 24A.140, 64.345, and § 106, Kentucky Constitution.
It is our opinion that the sheriff, if an appropriate order is entered by the chief judge of the district court pursuant to KRS 64.345 authorizing such use of the constables as a necessary office expense, could pay such expense [a reasonable compensation for their services in serving process for the sheriff], including necessary office expenses for the constables, out of his 75% account in the state treasury through the Department for Finance and Administration.
An alternative would be that the fiscal court could, under the terms of KRS 64.346, fund a reasonable compensation and necessary office expenses for the constables employed by the sheriff in the work of process serving.