Request By:
Hon. Barbara W. Jones
General Counsel
Department of Corrections
State Office Building, 5th Floor
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; George Geoghegan, III, Assistant Deputy Attorney General
You seek an opinion as to what positions the Department of Corrections may employ ex-offenders. More specifically, you note that under KRS 196.037 all employees of the Department of Corrections have peace officer status and that under KRS 61.300 peace officers must meet certain qualifications in order to serve as peace officers. You have, therefore, asked to what extent KRS 61.300 affects KRS 196.037.
KRS 196.037 reads as follows:
"All personnel of the cabinet, while acting for the cabinet in any capacity entailing the maintenance of custody over any prisoners, shall have all the authority and powers of peace officers. " KRS 196.037. (Emphasis Added).
It is clear from the above-quoted statutory language that peace officer status is afforded only those personnel of Corrections who are acting ". . . in any capacity entailing the maintenance of custody over any prisoners. " Consequently, it should be noted at the outset that those persons not directly involved in the maintenance of custody over prisoners are not afforded peace officer status.
KRS 61.300 sets forth the qualifications for nonelective peace officers.
"No person shall serve as a deputy sheriff, deputy constable, patrol or other nonelective peace officer or deputy peace officer, unless:
(1) He is a citizen of the United States and is twenty-one (21) years of age or over;
(2) He has resided in the county wherein he is appointed to serve for a period of at least two (2) years; this subsection shall apply only to deputy sheriffs, deputy constables, and to special local peace officers appointed pursuant to KRS 61.360;
(3) He has never been convicted of a crime involving moral turpitude;
(4) He has not within a period of two (2) years hired himself out, performed any service, or received any compensation from any private source for acting, as a privately paid detective, policeman, guard, peace officer or otherwise as an active participant in any labor dispute, or conducted the business of a private detective agency or of any agency supplying private detectives, private policemen or private guards, or advertised or solicited any such business in connection with any labor dispute. " KRS 61.300.
In view of the fact that those persons afforded peace officer status by virtue of KRS 196.037 are clearly nonelective peace officers, it is the opinion of this office that such persons must meet the qualifications mandated by KRS 61.300. A previous opinion of this office is in accord with the foregoing interpretation. See OAG 78-486 (copy attached) .
Your question concerning the hiring of ex-offenders is specifically addressed by KRS 61.300(3). An individual who has been convicted of a crime involving moral turpitude is prohibited from serving as a nonelective peace officer. See KRS 61.300(3). Therefore, any person who has been convicted of a crime involving moral turpitude may not act in any capacity entailing the maintenance of custody over prisoners.
Of course, Corrections may hire those ex-offenders who have not been convicted of a crime involving moral turpitude to act in a capacity entailing the maintenance of custody over prisoners. Moral turpitude is defined in Black's Law Dictionary as follows:
"The act of baseness, vileness, or the depravity in private and social duties which man owes to his fellow man, or to society in general, contrary to accepted and customary rule of right and duty between man and man." Black's Law Dictionary (1979 Ed.) at p. 910.
A more complete discussion of the concept of moral turpitude may be found in OAG 64-397 (copy attached) .
In addition, it should be noted that an ex-offender who has received a pardon from the Governor pursuant to Section 150 of the Kentucky Constitution would be eligible for peace officer status. See OAG 70-99 (copy attached) .
In view of the foregoing, it is the opinion of this office that Corrections may employ ex-offenders to perform duties which do not entail the maintenance of custody over prisoners. If ex-offenders are hired to serve in a capacity involving the maintenance of custody over prisoners, however, such ex-offenders must meet the qualifications set forth in KRS 61.300.