Request By:
Major L. E. Fentress
Legal Officer
Bureau of State Police
State Office Building
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You recently requested a legal opinion concerning the extent of the enforcement authority possessed by an officer commissioned pursuant to KRS 281.770.
On February 1, 1980, pursuant to Executive Order No. 80-84, the Highway Enforcement Section of the Bureau of Vehicle Regulation of the Department of Transportation was transferred to the Bureau of State Police. The enforcement activities of that section, which primarily related to the enforcement of statutes and administrative regulations relating to motor carriers, became the responsibility of the Bureau of State Police.
This transfer of personnel and function was confirmed by the General Assembly through enactment of KRS 16.065 (1980 c. 295, § 8, eff. 7-15-80) and KRS 281.770 (1980 c. 295, § 97, eff. 7-15-80). From the effective date of these statutes, the Bureau of State Police has taken the position that the enforcement authority of officers commissioned pursuant to KRS 281.770 does not extend beyond the express limitation contained in KRS 281.770(1), to wit:
". . . and such employees when so commissioned shall have all the powers of peace officers in respect to the enforcement of this chapter and all the statutes and regulations relating to motor vehicles operated as private or for-hire carriers. " (emphasis added).
Acting under the authority of KRS 281.770(2), the Commissioner of the Bureau of State Police on 15 July 1980 issued an order extending the parameters of the enforcement authority possessed by these officers, so long as the officer was engaged in the actual performance of his primary enforcement duties on a highway. The commissioner's order was by its terms premised on an emergency deemed to exist because of a legislative oversight. The order was to remain in effect until such time as the legislature acted to clarify or correct this supposed oversight, but in the event no legislative action was taken, the order was to expire on April 15, 1982.
No legislative action was taken with respect to this issue by the 1982 session of the General Assembly, and on 15 April 1982 the Bureau of State Police informed all its officers commissioned pursuant to KRS 281.770 that their enforcement authority was restricted to the laws and regulations related to vehicles being operated as private or for-hire carriers.
The officers affected contend that KRS 281.765 grants them full authority to enforce all motor vehicle laws.
The position of the department is that KRS 281.765 and KRS 281.770 deal with the same subject matter, with the former statute granting complete enforcement authority with regard to motor vehicle laws and with the latter limiting the enforcement authority to the laws relating to private or for-hire carriers. Since KRS 281.770 was last amended in 1980 and KRS 281.765 was last amended in 1974, and since the department believes KRS 281.770 to be more specific, the department believes that KRS 281.770 controls the issue.
The specific questions that an opinion is requested on are: (1) what is the extent of enforcement authority possessed by an officer commissioned pursuant to KRS 281.770; and (2) if an officer was originally commissioned under KRS 281.770 prior to the amendment of that statute in 1980, has his authority been altered by the transfer from one department (Bureau of Vehicle Regulation) to another (Bureau of State Police) and by the statutory amendment?
KRS 281.770, as amended in 1980, reads:
"(1) The commissioner, bureau of state police, is hereby authorized to issue commissions to employes of the bureau as law enforcement officers, and such employes when so commissioned shall have all the powers of peace officers in respect to the enforcement of this chapter and all the statutes and regulations relating to motor vehicles operated as private or for-hire carriers.
"(2) Peace officers commissioned as provided herein may be assigned additional duties in enforcing other provisions of law for specified limits of time during an emergency or time of special needs as determined by the commissioner in his discretion."
KRS 281.765, as amended in 1974, reads in part:
"Any peace officer, including sheriffs and their deputies, constables and their deputies, police officers and marshals of cities or incorporated towns, county police or patrols, and special officers appointed by any agency of the Commonwealth of Kentucky for the enforcement of its laws relating to motor vehicles and boats or boating, now existing or hereafter enacted, shall be authorized and it is hereby made the duty of each of them to enforce the provisions of this chapter and to make arrests for any violation or violations thereof, and for violations of any other law relating to motor vehicles and boating, without warrant if the offense be committed in his presence, and with warrant or summons if he does not observe the commission of the offense."
Under KRS 281.770(1), the special law enforcement officers have all the powers, when commissioned, of peace officers in respect to the enforcement of KRS Chapter 281 (involving motor vehicles operated as private, or for-hire carriers) and in respect to the enforcement of statutes and regulations relating to motor vehicles operated as private or for-hire carriers as covered in portions of KRS Chapter 138, and parts of 186 and 189. Thus they are given a rather narrow role.
Under KRS 281.770(2), such law enforcement officers commissioned by the Commissioner of the Bureau of State Police may be assigned additional duties in enforcing other provisions of law for specified limits of time during an emergency or time of special needs, as determined by the commisioner in his sound discretion. Such provision was apparently made to afford the Bureau flexibility in the use of such special law enforcement officers, based upon actual emergencies, but under the strictly limited time control provisions. You have indicated that such officers presently have not had the training to engage in round-the-clock or general law enforcement.
On the other hand, KRS 281.765 deals with peace officers generally and authorizes them and special law enforcement officers to enforce the provisions of KRS Chapter 281 and to enforce "any other law relating to motor vehicles and boating. " (Emphasis added). The underlined power is broad indeed and covers any motor vehicle or boat violation. Thus KRS 281.770 and 281.765 are in direct conflict and cannot be reconciled.
It is our opinion that the later and more specific statute, KRS 281.770, governs; and KRS 281.765 cannot be applied to these special law enforcement officers. See Shannon v. Burke, 276 Ky. 773, 125 S.W.2d 238 (1939). Also see Butcher v. Adams, 310 Ky. 205, 220 S.W.2d 398 (1949) 400. There the court wrote that "It is an elementary rule of statutory interpretation that whenever in the statutes on any particular subject there are apparent conflicts which cannot be reconciled, the later statute controls." Here KRS 281.770 is the later and more specific statute. See City of Bowling Green v. Board of Education, Ky., 443 S.W.2d 243 (1969) 247, and the later case of Heady v. Com., Ky., 597 S.W.2d 613 (1980) 614.
As to question no. 2, any officer originally commissioned under KRS 281.770, prior to the 1980 amendment, and later transferred to the Bureau of State Police, has only that authority contained in KRS 281.770, as described above.