Request By:
Mr. Roger W. Burke
Magistrate
Letcher County Fiscal Court
Whitesburg, Kentucky 41858
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You request our opinion on questions relating to the sheriff's office. In your factual situation, you say that the number of deputies for the sheriff was established by fiscal court as six, pursuant to KRS 64.530, in 1981.
Question No. 1:
"(1) Do the bailiffs and bonded secretaries court toward this total of six?" of six?"
When reading KRS Chapter 70 as a whole, and especially KRS 70.030, it is our opinion that the sheriff's staff is to be made up of appointed deputies. When you speak of bailiffs, we assume you mean deputy sheriffs who provide security for the circuit court (KRS 23A.090), and wait upon the district courts (KRS 24A.140). Thus KRS Chapter 70 contemplates that the sheriff's staff must consist of "deputies, " regardless of the function of the sheriff which they perform, clerical or otherwise. Chapter 70 is silent as to a sheriff's assistant," as such. See Hodges v. Daviess County, 285 Ky. 508, 148 S.W.2d 697 (1941) 699; and Thompson v. Shipp, 298 Ky. 805, 184 S.W.2d 245 (1944) 249.
Question No. 2:
"(2) If not -- Do the bailiffs, if they perform functions after court hours relating to law enforcement, i.e., arrests, road blocks and etc., count toward this total of six?"
We have answered this above. The sheriff employs deputies, regardless of what sheriff's function they are assigned to carry out.
Question No. 3:
"(3) Under what provisions or circumstances can a sheriff declare an emergency and bring in unlimited deputies? "
It is our opinion that a sheriff can augment his staff by appointing special deputies, under KRS 70.045, to assist him in carrying out his duties in preparation for or during an emergency, such as fire, flood, tornado, storm or other such emergency situations. An emergency situation is a condition which, in the judgment of the sheriff, requires a response immediately necessary for the preservation of public peace, health or safety. However, such special deputies receive no compensation for their services. The number of special deputies appointed addresses itself to the sound discretion of the sheriff, depending largely on the emergency anticipated or which actually occurs.
Question No. 4:
"(4) Does the sheriff when declaring an emergency need Fiscal Court approval?"
In our opinion, the answer is "no." It is strictly up to the sheriff. Remember that the sheriff is not required to issue any formal declaration of the existence of an emergency.
Question No. 5:
"(5) If not, is the Fiscal Court relieved of all legal responsibilities of the Sheriff's Department during an emergency period?"
In our opinion the fiscal court is not involved in the appointment of special deputies and their individual performances in an emergency. The sheriff is responsible for his own conduct and that of his deputies and special deputies.
Question No. 6:
"(6) If the Fiscal Court has no control over deputies during this period, are we, i.e., the Fiscal Court, responsible for unemployment insurance and workers compensation for them?"
Under the facts given, it is our opinion that unemployment insurance in terms of unemployment compensation is not involved as concerns special deputies. Their employment is not "covered employment, " as treated in KRS 341.055(4)(e)(g), (an employee serving on a temporary basis in case of fire, storm, snow, earthquake, flood, or similar emergency, or as a temporary or part-time employe of a political subdivision) . Here, we assume the fiscal court has not elected that such services become covered employment, pursuant to KRS 341.250(3).
As relates to workmen's compensation for the sheriff's special deputies, it is our opinion that workmen's compensation applies to special deputy sheriffs, appointed under KRS 70.045, pursuant to KRS 342.640(3), since they are in the service of a political subdivision, i.e., the county. However, a special deputy could elect not to be covered. See KRS 342.650(6). The fiscal court of your county is responsible for providing workmen's compensation insurance coverage, unless it elects to be a self-insurer, the premium being paid as properly budgeted under the procedure outlined in KRS Chapter 68. See KRS 342.630(2) and 342.640(3). Also, see KRS 342.340 and 342.345, and Beth-Elkhorn Corp. v. Ross, Ky., 552 S.W.2d 656 (1977) 657, holding that every employer subject to the workmen's compensation law (KRS Ch. 342), must either carry workmen's compensation insurance or qualify as a self-insurer.
The Court of Appeals, in Wright v. Fardo, Ky. App., 587 S.W.2d 269 (1979), observed that there was no known judicial exception to coverage of workmen's compensation brought on by the infrequency of the employer's business.