Request By:
Ms. Patricia L. Collinsworth
Magoffin County Treasurer
Courthouse
Salyersville, Kentucky 41465
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You ask whether the pro-tem county judge/executive can, at the same time, serve as a deputy sheriff?
KRS 61.080(2) provides in part that the offices of "county judge" and "deputy sheriff" are incompatible. (Emphasis added). Under S.B. 18 (Ch. 20, Acts of 1976 Extraordinary Session), § 6, "wherever the words 'county judge' appear in previously existing statutes, the language shall be changed by the Revisor of Statutes to read 'county judge executive'." See note under KRS 61.080, Banks-Baldwin, stating that "Effective January 2, 1978, the Revisor of Statutes has directed that 'county judge' shall be changed to 'county judge executive' in subsection (2), p r 1976 ex s, 518, § 6."
You enclosed with your letter a copy of the bond Miss Linda Montgomery executed as "deputy sheriff" . The document also indicates that the sheriff appointed her as a deputy sheriff, that she accepted the office and took the constitutional oath under § 228 of the Constitution.
Clearly one cannot be a deputy county judge executive and a deputy sheriff at the same time, since KRS 61.080(2) explicitly prohibits it. Further, the acceptance by one of another office incompatible with the office first held operates to vacate the first. KRS 61 090.
However, in spite of the negative overtones of KRS 61.080 (2), the statute cannot be applied in the abstract or in a vacuum. We must here determine whether or not Miss Montgomery accepted the "office of deputy sheriff" in the legal or technical sense. The only deputy sheriffs in Kentucky are those appointed by sheriffs to fill a deputy sheriff position specifically authorized by the legislative action of fiscal court pursuant to KRS 64.530 and KRS 70.030. Such deputy sheriffs, under a proper salary set by fiscal court, work full time for the sheriff's office in carrying out various duties assigned to the sheriff by the General Assembly. We understand that Miss Montgomery is not such a regular deputy under the precise terms just outlined.
It therefore is our opinion that when she accepted the office of deputy sheriff, she accepted nothing. She accepted no legal deputy sheriff office. The notion that it was a legal office is patently illusory. Under this analysis KRS 61.090 has no application, and her acceptance of the so called office of deputy sheriff had no legal effect on her holding the office of deputy county judge/executive. Cf. KRS 70.045, relating to special deputies needed to assist the sheriff during emergencies such as fire, flood, tornado, storm, or other such emergencies.
In order to eliminate the possibility of any legal problems arising out of going armed and making arrests as a deputy sheriff [see KRS 431.005], the sheriff and she would be wise to disavow this appointment, cancel the so called bond, and treat the matter as if it had never happened.