Request By:
Mr. Jerry P. Vincent
Boyd County Attorney
Courthouse
Catlettsburg, Kentucky 41129
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
As County Attorney of Boyd County, you request our opinion on questions relating to bailiffs.
You submitted the following facts:
"There are four bailiffs employed in the Boyd Circuit and District Courts (two in each court). Each bailiff works in excess of one hundred hours per month and is a Boyd County Deputy Sheriff. The bailiffs do not work on any other sheriff department business other than being bailiffs in their respective courts. The Boyd Sheriff is reimbursed pursuant to KRS 64.348, only for hours worked and with no reimbursement for employer contribution to the County Retirement System."
Your questions:
"Are sheriff's deputies, who serve as bailiffs in the District and Circuit Courts covered by the County Retirement System if they work in excess of one hundred hours per month? If they are covered is the county responsible for the employer contribution, or should the sheriff be reimbursed under KRS 64.348 for this contribution?"
The four bailiffs are not occupying any of the deputy sheriff positions authorized by Boyd Fiscal Court in March, 1981, pursuant to KRS 64.530. See
Funk v. Milliken, Ky., 317 S.W.2d 499 (1958). You have informed us that the eight deputy sheriffs perform all the statutory functions of the sheriff, except that very little time is devoted to waiting on the courts because of the work of that kind carried on by the four bailiffs.
KRS 64.348 covers the compensation of sheriffs, their deputies and other law enforcement officers or agencies for attending court. The rate of compensation is established in subsection (6).
Subsection (2) of KRS 64.348 reads:
"Compensation shall not be provided for more than one sheriff or other officer per courtroom unless the need for additional personnel is certified in writing by the chief circuit judge, chief district judge, or judge of the Court of Appeals, as appropriate and the utilization of additional personnel is approved by the chief justice, on his designee. In the event of an emergency of such nature precluding contacting the chief justice or his designee, the chief circuit judge, chief district judge, or judge of the Court of Appeals may authorize such assignment of additional personnel for a period not to exceed twenty-four (24) hours."
Thus the four bailiffs were appointed by the orders of the district and circuit court in Boyd County, pursuant to subsection (2). However, in administrative practice the four bailiffs have been considered to be legally deputy sheriffs by the said courts of Boyd County, by the county sheriff, and by the Finance Department of the state, which administers the payment scheme outlined in KRS 64.348. In addition, the fiscal court of Boyd County has authorized the payment of $72 per month out of the Boyd County treasury to each of the four bailiffs. Thus by court and contemporaneous construction a jointure has taken place wherein the bailiffs have been joined with the sheriffs office for certain purposes. In practice, the sheriff of Boyd County applies for compensation due the bailiffs under KRS 64.348(6) and then subsequently pays that money over to the four bailiffs directly.
KRS 70.140 provides in part that the sheriff or deputies shall attend and keep order in any court of the Court of Justice and shall obey orders of the courts. See also KRS 23A.090 (security services for circuit court) and KRS 24A.140 (services for district court).
Unless the courts tell us otherwise, we are inclined to treat this special jointure of bailiffs with the sheriffs office, as effected by the local courts, the sheriff of Boyd County, and the State Department of Finance, as a permissible variation of the establishing of deputy positions under KRS 64.530. Definitely the arrangement appears to be in the public interest. See H.B. 246, 1982 Session, which amends KRS 23A.090 to require bailiffs, rather than sheriffs, to provide circuit court security in counties containing a second class city (here, Ashland). The bill would make the bailiffs peace officers and employees of the Administrative Office of the Courts. The bill amends KRS 24A.140 to require bailiffs to provide district court security in counties containing a second class city, and makes bailiffs peace officers and employees of A.O.C.
We assume from your letter that Boyd County is participating in the County Employes' Retirement System, as covered in KRS 78.510 to 78.852, pursuant to an order entered by fiscal court under KRS 78.530.
The first question is whether these sheriff's "deputies" (the four bailiffs) who serve the courts are covered by the County Retirement System if they work in excess of one hundred hours per month. Such deputies are covered by the County Retirement System if they are regular full-time officers or employees. KRS 78.510(6). See KRS 78.540(1). Under KRS 78.510(11) and (21)(d), the deputies are covered under that system since the statute expressly provides that those working in excess of 100 hours qualify as regular full-time employees. Thus the General Assembly has established the line of demarcation between regular and part-time positions. See KRS 78.540 and KRS 78.510(6). The system does not embrace part-time workers. Under KRS 78.510(13), "creditable compensation" means all salary, wages and fees paid to the employee as a result of services performed for the employer.
The second question is as follows: "If they are covered is the county responsible for the employer contribution, or should the sheriff be reimbursed under KRS 64.348 for this contribution?"
First, KRS 64.348 relates only to the compensation of the sheriff, or other officers, paid by the state, for attending court. It does not authorize any reimbursement to the sheriff for the employer's contribution as covered in KRS 61.565. See 105 KAR 1:010, Section 1 as to the employer contribution rate payable by a participating agency applicable to creditable compensation earned on or after July 1, 1981. Under KRS 78.535(4), the county is directly responsible for paying the employer's contribution.