Request By:
Honorable James L. Purcell
Grant County Attorney
Grant County Courthouse
Williamstown, Kentucky 41097
Opinion
Opinion By: David L. Armstrong, Attorney General; Nathan Goldman, Assistant Attorney General
In your letter to the Attorney General you state that an individual is being considered for an appointment as a deputy sheriff in Grant County. This individual owns land that is in both Pendleton and Grant Counties. His home sits on the Pendleton County side and he pays property tax to Pendleton County. He is registered to vote in Grant County, his motor vehicles are registered in Grant County, his home address is a Grant County address, his children attend Grant County schools and bus service is provided by Grant County for his children. You cite KRS 15.335, 61.300(2), OAG 75-52, 82-460, 83-269 and 83-491, and ask how they should be applied in this situation.
KRS 15.335 was enacted in 1968. It states: "No person shall be disqualified from holding a position as a peace officer by reason of his residence or voting eligibility, except as provided in the Constitution."
KRS 61.300(2), which was last amended in 1980, states that no person shall serve as a deputy sheriff unless he "has resided in the county wherein he is appointed to serve for a period of at least two (2) years. . . ."
OAG 75-52 held that KRS 15.335 repealed by implication that provision of KRS 61.300 that required deputy sheriffs to reside in the county they served for at least two years. It also held that a deputy sheriff was not an officer named in the Constitution.
OAG 82-460 held that a deputy sheriff may reside in a county other than the county he serves, pursuant to KRS 15.335. See, also, OAG 82-105.
OAG 83-269 held that a deputy sheriff was required to reside in the county he was to serve for at least two years, pursuant to KRS 61.300(2).
OAG 83-491 held that the 1980 amendment to KRS 61.300 repealed by strong implication KRS 15.335 as it relates to deputy sheriffs, deputy constables and special local peace officers appointed pursuant to KRS 61.360.
OAG 75-52 was written prior to the 1980 amendment to KRS 61.300. However, OAGs 82-460 and 82-105 were written after the 1980 amendment and are directly opposite the holding of OAGs 83-269 and 83-491, as relates to residence requirements for deputy sheriffs.
Bogard v. Commonwealth, Ky. App., 687 S.W.2d 533 (1984) settles this issue. In Bogard, KRS 95.440(2) required city police officers of second and third class cities (who, like deputy sheriffs, are nonconstitutional officers) to reside in the county containing the city of employment. This statute was in effect in 1968 when KRS 15.335 was enacted. Thus, KRS 95.440(2) was impliedly repealed in 1968.
KRS 95.440(2) was amended in 1980 to add urban county governments to second and third class cities. The court in Bogard held that this amendment impliedly repealed KRS 15.335 as it relates to second and third class cities and urban county governments.
The situation is the same for KRS 61.300(2) as it relates to deputy sheriffs. Thus, OAGs 83-269 and 83-491 are correct. OAGs 82-105 and 82-460 are modified to the extent they are inconsistent with those opinions.
We now turn to your particular situation. KRS 61.300(2) requires the individual to have "resided" in the county for at least two years before he may be appointed a deputy sheriff. In Moore v. Tiller, Ky., 409 S.W.2d 813, 815 (1966) the court made this comment about residential requirements of a governmental officer:
"The residential requirements of the Constitution or a statute must have some reasonably determinable aspect and the objective of such a requirement deserves consideration. We construe it to be that a voter should exercise this privilege in an area where he is most likely to be cognizant of local issues and candidates. By the same token, a person running for office from a particular area should be so closely associated with the problems of that area that he can effectively represent the inhabitants thereof. Living there assures the accomplishment of these objectives."
The same reasoning is applicable to the residency requirements of KRS 61.300(2) for deputy sheriffs.
The terms "residence" and "domicile" are often used interchangeably. However, there are differences in meaning between the two terms. Johnson v. Harvey, 261 Ky. 522, 88 S.W.2d 42 (1936). Residence means living in a particular locality, while domicile means living in a locality with the intent to make it a fixed and permanent home. In re Riley's Will, 266 N.Y.S. 209, 148 Misc. 588.
Consistent with the Moore v. Tiller reasoning, we believe the requirement of residency as used in KRS 61.300(2) refers to living in the county and participation in the life of the county. The individual you refer to appears to qualify in that respect. Therefore, it is our opinion, based on the facts you have indicated, that the individual in question fulfills the requirement of KRS 61.300(2), assuming his situation has been as you describe for at least two years.