Request By:
Ms. Rhonda E. Morgan
Director of Investigations and
Legal Counsel
Auditor of Public Accounts
Capitol Annex
Frankfort, Kentucky
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The audit of Livingston County for fiscal year 1979 disclosed that the fiscal court had entered into an agreement with the sheriff's department to operate the county ambulance service, based on a bid of $24,000 per year. Your office advised them that the contract was illegal and void.
The fiscal court recently requested submission of bids for operation of the county ambulance service for the remainder of the fiscal year, and awarded that contract to the sheriff on September 26, 1980.
Certain questions have been raised by the county uditor and Livingston County Judge/Executive.
Question No. 1:
"Whether a fiscal court may enter into a contract with the sheriff of the county to operate the county ambulance service from the sheriff's office;"
There is no statutory authority for the fiscal court to enter into a contract for ambulance service with the office of the sheriff, as such. KRS 65.710 contemplates contracting with private persons, partnerships, or corporations. There is nothing to prevent such a contract with the sheriff as an individual person, apart from his sheriff's office and staff, provided that he can carry on both functions in the manner required by law and the contract.
The basic statutory duties of a county sheriff are set forth in KRS Chapters 70 and 134. His duties fall into four categories: tax collection, election duties, services to courts, and law enforcement. The court, in City of Middlesboro v. Kentucky Utilities Co., 284 Ky. 833, 146 S.W.2d 48 (1940) 52, pointed out that: "Public office is a public trust and it is fundamental that the performance of the trust cannot be farmed out or delegated to one not chosen directly or indirectly by the citizens, and then only under permission of the legislative body which established the trust." Further, the legislature may provide that a public officer devote his entire time to his duties, whether or not the entire time of the officer is in fact required for the complete and faithful performance of his duties. Board of Education of London Ind. Sch. Dist. v. Miller, Ky., 299 S.W.2d 626 (1957) 628.
While there is no express statutory requirement that a sheriff devote all of his time to the sheriff's office, it could be argued that implicit in the broad range of statutory duties is the requirement that he devote his full time that office. Only the courts can resolve that question.
Aside from the latter point, there is some question as to whether or not a practical or common law conflict of duties might exist where the sheriff is serving as sheriff and running a county ambulance service at the same time. Offices were stated to be incompatible so as to be executed by the same person when from a multiplicity of business in them they cannot be executed with care and ability. See Hermann v. Lampe, 175 Ky. 109, 194 S.W. 122 (1917) 126. While the ambulance contract makes the sheriff an independent contractor, the principle dealt with in Hermann v. Lampe, above, would apply. Here again only the courts could determine whether or not such a conflict in duties exist.
Question No. 2:
"If the contract with the sheriff is proper, must the sheriff apply monies received from the county for operation of the ambulance service to his fee income to determine his total yearly compensation for the purposes of KRS 64.535;"
The maximum salary for being sheriff in 1980 is $23,184. See KRS 64.527 and Commonwealth v. Hesch, Ky., 395 S.W.2d 362 (1965) relating to the rubber dollar maximum compensation. Since Coleman v. Hurst, 226 Ky. 501, 11 S.W.2d 133 (1928) 137, holds that the constitutional salary limitation (here: $23,184 for 1980) applies to the same person for public services paid for out of public funds, whether such services are rendered in one position or more than one, the amount of money received by the sheriff from the county treasure for this county ambulance service would have to be added to his regular sheriff's office fee income to apply the rubber dollar maximum.
Question No. 3:
"Whether the ambulance service employees are county employees entitled to county employee benefits or employees of a private contractor not entitled to county employee benefits?"
The answer is "no". The employees working for the sheriff in connection with ambulance service must be private individuals. The fact that the sheriff is working on a contract of a public nature does not convert the situation into a public-employee relationship.