Request By:
Hon. Ben Rogers
Barren County Attorney
Second Level
Barren County Courthouse
Glasgow, Kentucky 42141
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Gerard R. Gerhard, Assistant Attorney General
You asked whether the Barren Fiscal Court could lawfully employ a constable as a county employee (or on a contract basis) for the purpose of assisting in guarding or transporting prisoners.
In our view, subject to proper provision in the county jail budget (KRS 441.505), and other points noted, a fiscal court may employ one holding the office of constable in an additional capacity as a county employee to assist in transporting or guarding prisoners. Discussion follows.
There is no blanket ban on one's being simultaneously employed in two capacities by a county. See, for example, OAG's 76-8, and 79-398. However, when a person already holds one county office (here the office of constable) , and the county is considering whether such person can be employed in an additional capacity, perhaps the first question is whether the additional employment would involve a statutorily prohibited incompatible office under KRS 61.080. Your letter does not specify the precise position the constable would be employed in, if the employment is carried out. So long as the additional employment of the constable does not involve his being employed by the county in a statutorily incompatible position (KRS 61.080(2)), there will not be a problem with statutory incompatibility. Cf., OAG's 69-671, 70-256, and 74-46 (copies enclosed) .
Once the question of statutory incompatibility is resolved, the next question is whether there is "practical incompatibility" in fulfilling the demands of two positions. Cf., OAG 79-319 (copy enclosed) .
Because the duties of a constable (e.g., KRS 70.350; 70.370; 70.390) do not require performance at specified times, we doubt that a practical incompatibility would exist as between the duties of a constable, and one holding that office also being employed to assist in transporting or guarding prisoners. Cf., OAG 70-544 (copy enclosed) .
A county is required to provide for transportation of prisoners through the jail budget (KRS 441.505). In the case of Barren County, which has an operational jail, direct responsibility for transporting prisoners rests with the sheriff (KRS 441.510(1)(c)). This fact does not prohibit a fiscal court from hiring, as a county employee, one also holding the office of constable, to assist in transporting or guarding prisoners. One who holds the office of constable, however, cannot simultaneously be employed as either a deputy jailer or deputy sheriff. KRS 61.080(2).
In sum, subject to the specific nature of employment not involving incompatibility, and to proper budgeting, one who holds the office of constable can be additionally employed by the fiscal court as a county employee, to assist in transporting or guarding prisoners. The fiscal court should make clear, in the event of such hiring, to whom the person so employed answers in connection with the employment involved.