Request By:
Hon. Eberley R. Davis
Union County Attorney
Post Office Box 6
Morganfield, Kentucky 42437
Opinion
Opinion By: Chris Gorman, Attorney General; Gerard R. Gerhard, Assistant Attorney General
By letter of June 18, 1992, you ask whether a deputy sheriff may also serve as a deputy coroner.
In our view there is neither statutory nor constitutional incompatibility between the office of deputy sheriff and that of deputy coroner. However, serious common law incompatibility or conflict of interest questions may be present, or may arise, where a deputy sheriff is also appointed as a deputy coroner. The office of deputy sheriff appears to be incompatible under common law with the office of deputy coroner. Discussion follows.
KRS 61.080(2) makes incompatible, the offices of deputy sheriff and coroner, but does not list as incompatible with the office of deputy sheriff, the office of deputy coroner. We follow here the reasoning expressed in OAG 85-149, that the legislature's enumeration of particular things excludes things not enumerated. KRS 61.080 makes the office of deputy sheriff incompatible with other offices enumerated in that subsection, e.g., deputy clerk of a court, but does not list the office of deputy coroner as one which is incompatible with the office of deputy sheriff, hence we find no statutory incompatibility as between the office of deputy sheriff and that of deputy coroner. Similar reasoning is applied in OAG 76-642.
We here overrule that part of OAG 62-21 indicating that because a deputy jailer has the same powers and duties as the jailer (KRS 71.060), an incompatibility between the offices of justice of the peace and jailer would likewise apply to the deputy jailer.
The plain language of § 165 of the Constitution of Kentucky does not establish an incompatibility as between the office of deputy sheriff and that of deputy coroner.
Given the observations above, the propriety of appointment of a deputy sheriff also as a deputy coroner must be evaluated as discussed in Polley v. Fortenberry, Ky., 105 S.W.2d 143, 144 (1937):
The two employments not being incompatible under the Constitution or statute, the case turns on whether the two offices or employments are incompatible under the common law. As said in Barkley v. Stockdell, 252 Ky. 1, 66 S.W.(2d) 43, 44, 'Aside from any specific constitutional or statutory prohibitions, incompatibility depends on the character and relation of the offices and not on the matter of physical inability to discharge the duties of both of them. The question is whether one office is subordinated to the other, or the performance of one interferes with the performance of the duties of the other, or whether the functions of the two are inherently inconsistent or repugnant, or whether the occupancy of both offices is detrimental to the public interest. '
Section 99 of Kentucky's Constitution provides, in part, for the office of sheriff, and separately for the office of coroner. Our statutes separately treat such offices. A deputy sheriff, in exercising the powers of the sheriff as a general law enforcement officer (KRS Chapter 70), has a duty to respond if called in connection with a death, and to initiate an investigation under the jurisdiction of the sheriff. At the same time, a coroner, or deputy thereof, has a responsibility pursuant to KRS Chapter 72 to carry out an independent investigation of a death under the jurisdiction of the coroner. A deputy coroner might well be in the position of evaluating the findings of sheriff's personnel in connection with a death investigation.
In Polley (above), the court observed regarding the two positions there in question, that they were "not of the kind that one filling one position will have to pass upon the validity of his acts in the other position." Id., at 145.
We believe that a deputy coroner who is also a deputy sheriff might well be in the position of evaluating his own actions as a deputy sheriff, or be in the posture of evaluating, under the jurisdiction of the coroner, the validity of acts of fellow employees in the sheriff's office. Such circumstance would not be permissible under the reasoning expressed in Polley.
Employing a deputy sheriff also as a deputy coroner potentially compromises the independence of a coroner's inquiry in a death case. Conflicting interests and allegiances presumably would be present on an ongoing basis in employing one as both a deputy sheriff and as a deputy coroner. Such circumstance is, in our view, detrimental to the public interest, and appears to constitute a common law incompatibility of offices.
You might want to seek a judicial determination regarding whether the office of deputy sheriff is incompatible under the common law with the office of deputy coroner.