Request By:
Hon. William C. Stone
Attorney at Law
Suite 705
Meidinger Tower
Louisville Galleria
Louisville, Kentucky 40202
Opinion
Opinion By: Steven L. Beshear, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
This is in response to your letters of June 23 and July 11 concerning a possible incompatible situation where the City of Newburg, a city of the fourth class, has expressed a desire to hire a Chief of Police for the city. The person under consideration is currently an employee of the Jefferson County Department of Correction. It further appears that the Secretary of Corrections of the Jefferson County Department of Correction takes the position that correctional employees are peace officers who are sworn and function in an identical fashion as deputy jailers. Under the circumstances you raise the following questions:
"1. May an employee of the Department of Correction hold at the same time the position of Chief of Police of the City of Newburg, a fourth-class City?
2. What penalty, if any, is imposed if the dual offices are improperly held?"
After reviewing the material submitted in both letters and referring to the provisions of Chapter 67B, governing metropolitan correctional service departments that may be created in counties containing cities of the first class, we have concluded that correctional employees are not peace officers since nowhere in Chapter 67B are the employees of the department designated as such. We do not believe such power can be implied from the general language found in KRS 67B.030 dealing with the nature of the department or under KRS 67B.050 detailing the powers and duties of the department.
The apparent argument in favor of the possession of peace officer powers by correctional employees is the fact that the Correctional Department is to take over the duties and responsibilities of the sheriff and jailer with reference to the operation and maintenance of the county jail and all county correctional facilities. The department is also required to comply with all statutory requirements with reference to operation, maintenance and upkeep of all correctional facilities including, of course, the county jail. However, none of the designated responsibilities found under this act includes the granting of peace officer powers to correctional employees.
In order for an officer or employee to acquire the powers of a peace officer, such powers must be specifically granted by appropriate legislation, as for example probation officiers under KRS 208.320. In construing this statute, we issued an opinion, KRS 75-177, copy attached, declaring that voluntary probation officers of juvenile court do not possess peace officer powers in the absence of any specific language therein granting so-called voluntary probation officers such power.
We next refer you to KRS 446.010(24) defining the term "peace officer" as follows:
"'Peace officer' includes sheriffs, constables, coroners, jailers, marshals, policemen and other persons with similar authority to make arrests; " (Emphasis added.)
The court in
Vandiver v. Manning, 215 Ga. 874, 114 S.E.2d 121, defined the term "peace officer" as a person designated by a public authority to keep the peace and arrest persons guilty or suspected of committing a crime. See also
Barth v. McCann, 123 Ky. 247, 94 S.W. 645 (1906).
Under the circumstances we are of the opinion that the employee in question does not possess peace officer powers. Therefore, there would be no constitutional or statutory objection to his holding the office of Chief of Police of the City of Newburg at the same time since he would be a county employee. A person cannot, of course, hold a county office and city office at the same time. However, he can hold county employment and a municipal office without violating Section 165 of the Constitution and KRS 61.080.
There is, of course, always the possibility of the existence of a common law conflict where for example the individual cannot perform the duties of both positions at the same time with care and ability. However, this is a question of fact for the courts to determine.