Request By:
Sgt. Ron Hart
Elkton Police Department
City Hall, City of Elkton
Elkton, Kentucky 42220
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter raising two questions, one of which asks whether the county attorney has the responsibility for prosecuting violations of municipal ordinances.
KRS 15.725(2) provides that, "The county attorney shall attend the district court in his county and prosecute all violations of criminal and penal laws within the jurisdiction of said district court." KRS 24A.110 provides in part that the district court shall have exclusive jurisdiction to make final disposition of all criminal matters, including violations of county, urban-county, or city ordinances or codes, except offenses denominated by statute as felonies or capital offenses and offenses punishable by death or imprisonment in the penitentiary.
Thus, the county attorney is required to prosecute violations of municipal ordinances in the district court. See OAG's 78-407 and 78-682, copies enclosed.
Your other question asks whether a traffic control officer has to be a sworn police officer.
We have not found any statute which requires that a person directing and controlling traffic be a police officer. Elkton is, of course, a city of the fourth class. KRS 94.360 provides in part that a city of the fourth class shall have and exercise exclusive control over its public ways. KRS 95.700 states in part that the city legislative body may, by ordinance, establish a police department, appoint its members, and provide for their number, grades, compensation and regulation. While directing and regulating traffic is a function normally associated with and required of police officers, KRS 95.740, setting forth the powers of police officers in a city of the fourth class, makes no mention of directing and regulating traffic. Thus, a city of the fourth class could probably employ persons who are not police officers to direct traffic.
Numerous problems arise, however, if the person designated to direct and control traffic is not a police officer. As will be shown, such a person is placed in an extremely disadvantageous position in that he is performing a rather dangerous function and he has none of the protections and advantages which a police officer would possess.
If the person employed by the city to direct traffic is not a police officer he is not a peace officer [KRS 446.010(24)] and he, therefore, cannot exercise the peace officer's power to arrest which includes the power to arrest when a misdemeanor is committed in his presence, KRS 431.005(1). As a nonpeace officer he can only arrest when a felony has been committed in fact and he has reasonable grounds to believe that the person being arrested has committed it, KRS 431.005(2). Furthermore, while a peace officer may issue a citation for a misdemeanor or violation committed in his presence, a nonpeace officer may not do so, KRS 431.015(1). Obviously most of the illegalities encountered by a traffic officer will involve misdemeanors and violations, rather than felonies; and while a peace officer is statutorily equipped to handle such situations a nonpeace officer is not.
Furthermore, KRS 527.020 permits peace officers, when necessary for their protection in the discharge of their official duties, to carry concealed weapons. Nonpeace officers, cannot legally carry concealed weapons. Peace officers, such as policemen, are easily identified by their uniforms and badges but nonpolice officers cannot wear the uniform of a policeman and have no law enforcement powers. KRS 189.393 provides in part that no operator of a vehicle, after having received a visual or audible signal from a traffic officer or marked police vehicle, shall knowingly flee or attempt to elude any traffic officer by willful or wanton disregard of such signal so as to interfere with or endanger the operation of the police vehicle or the traffic officer or other vehicles or pedestrians. However, since the penalty provision set forth in KRS 189.990(19) does not involve a felony, a nonpeace officer, on his own, could not avail himself of the protection set forth in KRS 189.393.
We cannot find a statute requiring that a person directing and controlling traffic be a police officer. However, that person is subjected to the same dangers as a peace officer without being afforded any of the protections, powers and authority granted to peace officers directing and regulating traffic. He is almost entirely dependent upon the good will of the driving public for his safety and well being.