Request By:
Mr. Ed Scrivner
Constable
Third Magisterial District
2002 Mobile Court
Lexington, Kentucky 40505
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your letter refers to OAG 70-3, in which we concluded that the provisions of KRS 15.335 repeal by implication the residential requirements of KRS 88.170 with respect to a town marshal of a sixth class city.
Your question concerns a constitutional peace officer, i.e., a sheriff or constable and their respective deputies regarding residency requirements, in particular whether or not such an officer must reside in the county where his or her authority originates or the officer is elected. "
KRS 15.335 reads:
"No person shall be disqualified from holding a position as a peace officer by reason of his residence or voting eligibility, except as provided in the Constitution."
In
City of Newport v. Schindler, Ky., 449 S.W.2d 17 (1970), the Court of Appeals decided the question as to whether KRS 95.440(2), a residency statute for certain city policemen and firemen, contravened § 234 of the Kentucky Constitution. That latter section reads:
"All civil officers for the State at large shall reside within the State, and all district, county, city or town officers shall reside within their respective districts, counties, cities or towns, and shall keep their offices at such places therein as may be required by law."
The court concluded in City of Newport v. Schindler, above, that the word "officer" as used in section 234 of the Constitution applies only to those directly named and designated in the constitution. A city policeman, of course, is not such an officer.
As relates to a sheriff or a constable, such officers must reside within the county for which they were elected. Section 234, Kentucky Constitution. In addition, § 100 of the Kentucky Constitution requires that the sheriff and constable be citizens of Kentucky and reside in Kentucky two years, and one year next preceding his election in the county (the sheriff) and district (magisterial district: constable) in which he is a candidate. See also § 101, Kentucky Constitution. Section 234 of the Constitution requires the sheriff to continue to maintain his residence in the county for which he was elected, and requires the constable to continue to maintain his residence in the magisterial district of the county in which he was elected. Thus KRS 15.335 is not in conflict with the above mentioned constitutional sections, as relates to the sheriff and constable, since the waiver of residency require ment was expressly declared to be not effective for constitutional officers.
However, as concerns the deputies of sheriffs and constables, KRS 15.335 is an effective statutory waiver of residency requirement for such nonconstitutional peace officers. Actually, the question of residency of such deputies is a practical matter to be determined by the sheriff and constable who appoint them, based primarily upon the distance from and accessibility to the office they are serving. Thus deputy sheriffs and deputy constables can legally reside outside of Fayette County. The deputies are not constitutional officers since they are not directly and affirmatively named and designated in the text of the constitution.
Your second question concerns unsalaried deputy sheriffs, i.e., "courtesy special deputies. "
Such deputies are illegal. The only legal deputy sheriffs are those appointed by the sheriff to fill deputy positions authorized by the urban county council pursuant to KRS 64.530, 67A.060, 67A.300, and §§ 4.08 and 11.02 of the Lexington-Fayette Urban County Government Charter. They actually work day-by-day for the sheriff in carrying out his statutory duties. The sheriff may appoint special deputies to assist him in a dire emergency situation, such as fire, flood, tornado, storm, etc., KRS 70.045.
Such illegal deputies are merely private persons and would have the power of arrest given to private persons under KRS 431.005(2). They are not peace officers. See KRS 446.010(24). They cannot carry concealed deadly weapons for any reason. See KRS 527.020.
Finally, you ask how such illegal activities if so, can be stopped. You refer to the activities of these "illegal deputies. " Since the so called deputies are not actually pretending to hold a legal office, as such, an ouster action under KRS 415.040 (commonwealth's attorney against usurpers of county offices) would not be appropriate. There is no color of title here. If necessary, the Urban County Government counsel could bring an injunctive suit seeking to permanently enjoin such special deputies from acting or performing under that appellation. See