Request By:
Hon. Bobby L. Bunch
Warren County Jailer
Warren County Jail
920 Kentucky Street
Bowling Green, Kentucky 42101
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Gerard R. Gerhard, Assistant Attorney General
Re: Whether Constable May Also Serve as Part-Time Deputy Jailer. AGO Corr. No. 91-(O)-767.
By letter of May 14, 1991, you ask, in substance, whether a constable may also serve as a part-time deputy jailer.
In our view the answer is yes. Discussion follows.
When one holding one county office seeks to be employed in a second county office, a question may arise as to whether the holding of two offices is legally permissible, as certain county offices are statutorily designated as being incompatible with others. In other instances a common law incompatibility may exist.
KRS 61.080(2) provides:
The offices of justice of the peace, county judge/executive, surveyor, sheriff, deputy sheriff, coroner, constable, jailer and clerk or deputy clerk of a court, shall be incompatible, the one (1) with any of the others. The office of county judge/executive and county school superintendent are incompatible.
The above quoted provision, while mentioning a deputy sheriff and a deputy clerk, makes no mention of a deputy jailer. As explained in OAG 85-149 (copy enclosed) , regarding a coroner also holding the position of deputy jailer, a general rule of statutory construction is that the enumeration of particular things excludes other items not specifically mentioned. Thus, where the legislature specified that a deputy of certain offices was incompatible with certain other county offices, but did not specify that the office of deputy jailer was incompatible with other county offices, no statutory incompatibility is established as between the office of deputy jailer, and another county office. It follows that there is no incompatibility under KRS 61.080(2) as between the office of constable and that of deputy jailer .
Aside from statutorily established incompatibility, if there are inherent conflicts in functions or responsibilities as between different county government offices, a common law incompatibility might exist that would prohibit one person holding two county offices. See Polley v. Fortenberry, Ky., 105 S.W.2d 143 (1937) (copy enclosed) . We see no inherent inconsistency or conflict in functions or responsibilities as between a constable and deputy jailer. This assumes, of course, that there is no overlapping of governmentally established working hours or pay.
For the reasons indicated, in our view, a constable may be employed as a part-time deputy jailer.