Request By:
Honorable Carl D. Perkins, M.C.
Congress of the United States
House of Representatives
Washington, D.C. 20515
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney Seneral
The problem of police protection in rural Kentucky has come to your attention. You have learned that the sheriff's office, as relates to police protection, is totally dependent upon receiving funding from the fiscal court.
Your specific question is whether or not the fiscal court is required by law to provide funds so that the sheriff can provide an adequate level of police protection for the county. You request an official opinion on that point.
As you point out, the sheriff in many rural areas in our state is the exclusive means of police protection. If for some reason fiscal court does not provide him funds for deputies to be used in a police capacity, then, you say, the people will suffer.
Generally, the sheriff's duties fall into four categories: tax collection, election duties, services to courts, and law enforcement. A study made by this office indicated that the sheriff has historically spent the majority of his time on civil duties, as opposed to his criminal or law enforcement duties. 1 The sheriff, by virtue of his office, is a collector of property taxes for the state, county, and taxing districts. 2 In some cases he also collects city taxes.
The sheriff is one of four elected county officials who are peace officers possessing law enforcement powers, including the power to make arrests and carry a concealed deadly weapon [the other three being coroners, jailers and constables]. 3 Specific statutory duties devolve upon all peace officers, including enforcing all controlled substances, 4 enforcing all truck weight, limit, and size laws, 5 seizing any automobile transporting alcoholic beverages in dry territory and making all necessary arrests. 6 Peace officers must help enforce the motor vehicle traffic laws. 7
Historically, the law enforcement functions just mentioned, in the main, have to be carried on by the sheriff's office if they are to be carried out at all. In addition to the multitude of law enforcement duties applicable to the sheriff, he has been assigned the specific duty of patrolling all public roads in his county 8 and inspecting dance halls and road houses. 9 He must attend district and circuit courts (KRS 24A.140).
The fiscal court is permitted to fund the sheriff's deputies' salaries and the acquisition of necessary office equipment and supplies for the sheriff's office either out of the excess fees of the sheriff's office or the county treasury, or both. 10 The theory underlying the fiscal court's authority is that such funding is a practical necessity in the proper conduct of that public county office. 11
This office has taken the position, as we do now, that the fiscal court has a legal responsibility to fund the cost of certain equipment and supplies of the sheriff's office either through the sheriff's excess fees or the county treasury, because of the statutory treatment of that point. 12 This also applies to the sheriff's deputies' salaries. However, it is our opinion that there are no statutes mandating fiscal court to fund the sheriff's operations beyond the level just indicated.
The fiscal court has the authority to determine the number of sheriff's deputies. 13 However, there is no statute requiring fiscal court to establish any specific minimum number or other number of sheriff deputy positions, regardless of the public necessity for law enforcement purposes. In establishing the number of sheriff's deputies, fiscal court generally can set any number it wishes, assuming that money is available for that purpose out of the sheriff's fees or the county treasury. Obviously if the sheriff's office is to be used as a more effective tool of local law enforcement in rural Kentucky, 14 the sheriff's office will have to be augmented by the establishing of sufficient full time deputies to do the job. That program would require new state legislation mandating the responsibility of fiscal court to provide at least a minimal deputy staff for law enforcement purposes, as well as charting the financial course to be pursued.
Of course generally there are no legal deputy sheriffs in Kentucky except where the sheriff appoints a deputy to fill a regular full time deputy position established by orders of fiscal court. 15 Thus a special deputy sheriff not involving an authorized position as aforesaid is merely a private citizen, possessing powers similar to those of a Kentucky Colonel. The exception is found in KRS 70.045, by which the sheriff may appoint special deputies to assist him during an emergency, such as fire, flood, tornado, storm, or other emergency situations. 16
The fiscal court has an option in providing for a county police force, not connected with the sheriff's office. 17 The county judge/executive can establish a county police force, but it is up to the fiscal court as a body to fund such operation. We have no statistics on this, but we suspect that the use of KRS 70.540 in rural Kentucky is one of infrequency and one involving token staffs. The principal reason that fiscal courts would advance for the failure to use the county police force statute on a substantial scale is the lack of county money for that purpose.
Here again if county law enforcement is to be upgraded, either around the focal point of the sheriff's office, or a county police force system under KRS 70.540, new specific and explicit state legislation would be required, with an adequate system of financing provided by the new legislation.
Any fiscal court may enact ordinances relating to "police protection" , 18 however, this delegated power is permissive only, and no specific standards, quantitatively or otherwise, are provided.
In summary, the fiscal court in Kentucky under current legislation, is not mandated to provide funds such that the sheriff can provide any certain or minimum level of police protection for his county. It can be said that fiscal court has a moral duty to advance the cause of upgraded and adequate police protection. However, the legal compulsion to do so is not present in current legislation.
This office appreciates your interest in the problem of improving law enforcement in Kentucky at the county level.
Footnotes
Footnotes
1 Kentucky Law Journal, Vol. 52, No. 1 (1963-64) p.p. 15-17.
2 KRS 134.140.
3 KRS 446.010(24)
4 KRS 218A.240
5 KRS 189.223. See 64 K.L.J. 601, concerning the coal transportation problem in Kentucky.
6 KRS 242.360(1).
7 KRS Chapter 189
8 KRS 70.150. This includes directing and controlling traffic, and investigating accidents for possible criminal negligence.
9 KRS 70.160.
10 KRS 64.530; Funk v. Milliken, Ky., 317 S.W.2d 499 (1958); and Barkley v. Gatewood, 285 Ky. 179, 147 S.W.2d 373 (1941).
11 Barkley v. Gatewood, above, KRS 67.080, 67.083, and 134.160. By statute the fiscal court must provide the sheriff with an office.
12 KRS 64.530, 67.080, 67.083, and 134.160.
13 KRS 64.530(3).
14 See KRS 64.345, relating to financing the sheriff's office in counties having 75,000 or more. Also see § 106, Kentucky Constitution.
15 KRS 64.530.
16 They serve without pay for the duration of the emergency.
17 KRS 70.540.
18 KRS 67.083(3)(u) [Home Rule Statute].