Request By:
Mr. Kevin E. Quill
Attorney at Law
400 Lawyers Building
Newport, Kentucky 41071
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You request an opinion of this office relative to two ordinances passed recently by Campbell Fiscal Court.
The first ordinance, No. 23-80, deals with so called minimum qualifications of deputy sheriffs of Campbell County. The ordinance becomes effective on January 1, 1982. Under the ordinance, and within 6 months of his appointment, each deputy must complete the Kentucky Bureau of Training's two (2) week peace officer course. He must qualify on a pistol range, etc. He must purchase professional liability insurance, for a minimum of $100,000. The cost of qualification shall be borne by the fees of the sheriff's office. A person who does not satisfy the above qualifications cannot hold office as deputy sheriff in Campbell County. The ordinance was stated to apply only to deputies performing law enforcement duties.
Your specific question is whether or not such ordinance is valid.
See KRS 70.030, relating to the appointment of deputy sheriffs. It is silent as to qualifications, except that a deputy must take the sheriff's oath (KRS 70.010 and § 228, Kentucky Constitution). KRS 61.300 establishes various qualifications for nonelective peace officers or deputies. A deputy sheriff is a nonelective peace officer. See KRS 446.010(24). KRS 61.300 provides that such deputy sheriff must be a citizen of the United States, and of the age of 21. He must have resided in the county of appointment for at least two years. He must not have been convicted of a crime of moral turpitude. He must have not within a period of two years hired himself out as a privately paid detective, policeman or otherwise as an active participant in any labor dispute, etc. However, KRS 15.335 provides that no person shall be disqualified from holding a position as peace officer by reason of his residence or voting eligibility, except as provided in the Constitution. See
City of Newport v. Schindler, Ky., 449 S.W.2d 17 (1970).
Thus under KRS 70.030, 61.300, and 15.335, a deputy sheriff is required, as to residence, to be only a citizen residing in the state of Kentucky.
The ordinance establishes its minimum qualifications as a condition precedent for holding the office of deputy sheriff in that county.
While realizing the spirit behind the ordinance and its merits, it is our opinion that the enactment of KRS 70.030, 61.300, and 15.335, constitutes a preemption of the field of deputy qualifications; and the ordinance is in conflict with those statutes.
The second ordinance apparently adopts a county judge/executive order which provides that where a county jail prisoner must be taken to the hospital and guards must be provided, the county jailer must coordinate the matter with the sheriff's office and/or county police chief. The sheriff must provide the guards from among his deputies. The county police must also contribute to the guard function.
You ask whether that ordinance is yalid.
We do not think so. It is in conflict with the custodial responsibilities of the jailer.
The immediate responsibility for the hospital guards attaches to the jailer. See KRS 71.020 and 71.040. Where he is unable to furnish guards from his staff, he must call upon the fiscal court for providing the necessary guards. See KRS 67.080(2)(b) and 67.083(3)(e). The sheriff's responsibility for transporting prisoners under KRS 441.500 relates only to transporting them to and from detention facilities. It does not embrace the hospital situation.