Request By:
Hon. Deborah H. McCarthy
Knott County Attorney
Post Office Box 861
Hindman, Kentucky 41822
Opinion
Opinion By: Chris Gorman, Attorney General; Gerard R. Gerhard, Assistant Attorney General
By letter of June 16, 1992, you ask whether KRS 70.045(1), providing for appointment of a certain number of special deputies to assist with "general law enforcement and maintenance of public order, " expands the duties of special deputies beyond emergency situations. Additionally you ask, if their duties are expanded, to what extent, since, you indicate, they do not meet the definition of peace officers as set out in KRS 431.005.
The duties of a special deputy sheriff appointed pursuant to KRS 70.045(1) are not limited to emergency situations. A deputy sheriff appointed pursuant to KRS 70.045(2) has duties only "in preparation for or during an emergency. " The restricted definition of "peace officer" set forth in KRS 431.005(3) limits the arrest power of a deputy sheriff only in connection with a warrantless arrest pursuant to KRS 431.005(2). Discussion follows.
KRS 70.045 provides for two types of special deputies that may be appointed by a county sheriff. KRS 70.045(1) authorizes appointment of a limited number of special deputies based upon the population of a county "to assist . . . with general law enforcement and maintenance of public order. " KRS 70.045(2) provides for a sheriff to appoint "as many special deputies as needed to assist in the execution of his duties and office in preparation for or during an emergency situation such as fire, flood, tornado, storm or other such emergency situations." KRS 70.045(2) further provides that "emergency situation, " for purposes of such section "is a condition which, in the judgment of the sheriff, requires a response immediately necessary for the preservation of the public peace, health, or safety, utilizing special deputies previously appointed in preparation for the contingency."
It appears from the above cited language, that the duties of a special deputy sheriff appointed pursuant to KRS 70.045(1) are not limited to an "emergency situation, " while the duties of a special deputy sheriff appointed pursuant to KRS 70.045(2) are limited to "preparation for and during an emergency situation. "
Your letter mentions that special deputies do not meet the definition of peace officers set out in KRS 431.005. KRS 431.005(3) defines "peace officer" for purposes of a warrantless arrest pursuant to KRS 431.005(2), as "a full-time sworn officer of the Kentucky State Police, a full-time city policeman, a full-time county policeman, a full-time university safety and security officer . . ., a full-time city-county policeman, a duly elected sheriff, or a full-time paid deputy sheriff. " KRS 70.045(3)(b) provides that a special deputy sheriff cannot receive any monetary compensation for his time or services. It follows that a special deputy sheriff, whether a "general law enforcement deputy" (KRS 70.045(1)), or an "emergency situation deputy" (KRS 70.045(2)), as an unpaid deputy, cannot make a warrantless arrest pursuant to KRS 431.005(2).
Opinions of this office issued prior to the amendment of KRS 70.045 in 1986 and 1990, may not provide a current view of the duties of special deputy sheriffs.