Request By:
Hon. James Hite Hays
Shelby County Attorney
Shelby County Courthouse
501 Main Street
Shelbyville, Kentucky 40065
Opinion
Opinion By: Chris Gorman, Attorney General; Gerard R. Gerhard, Assistant Attorney General
By letter of February 26, 1992, you ask whether the County Judge/Executive and Sheriff have the discretion as to which laws they have the time and ability to enforce, or could be made by mandamus to perform specific duties that residents request.
You explain that residents along a county road are upset about overweight trucks on that road, and have asked the County Judge/Executive to purchase scales and other equipment so that the Sheriff can enforce the weight limit on the road. You further indicate that the judge has refused such request saying Sheriffs have no expertise in enforcement of such laws, and that they are working full time collecting taxes and enforcing criminal laws in the county.
You indicate that KRS 67.710 involves the responsiblity of the county judge/executive, and that KRS 281.765 provides that sheriffs have a duty to enforce the laws which would possibly include all motor vehicle laws, such as those related to overweight vehicles. You state that it is obvious that county sheriffs do not have the manpower to enforce all the laws of the Commonwealth in each county.
In our view, law enforcement officers have no general discretion to determine which laws they have the time and ability to enforce, i.e., to decide not to enforce some statutes at all. Whether mandamus will lie to require a county to purchase scales for a sheriff's use in enforcing truck weight limits on county roads is doubtful, but is a question for the courts. Discussion follows.
As posed, your question interwines the county judge/executive and the sheriff, as if they both have the same law enforcement role, which they do not. The county judge/executive, in the context of your question, is an administrative officer. The sheriff is a sworn law enforcement officer.
A sheriff takes an oath pursuant to KRS 70.010, to, in part, faithfully execute the duties of his office. KRS 281.765 imposes upon sheriffs, and their deputies, as well as other peace officers, the duty of enforcing violations of laws related to vehicles. KRS 189.221 establishes a maximum weight for certain vehicles operated on county roads. KRS 189.221 is obviously a law related to vehicles. It follows that a sheriff has a duty to enforce KRS 189.221.
We recognize, as pointed out in your letter, that sheriffs do not have the manpower to enforce all the laws of the Commonwealth in each county. At the same time, however, they have no general discretion to refrain from enforcement of certain laws, or to fail to take reasonable action in relation to a complaint regarding violation of a statutory provision. Should a sheriff willfully refrain from enforcement of statutory provisions, he or she might be exposed to a claim of willful neglect of duty under KRS 61.170.
If a sheriff does not have the equipment or expertise to carry out proper enforcement of statutory provisions, he or she should seek such assistance as is necessary. Thus, if a sheriff does not have scales for weighing vehicles possibly being operated in violation of KRS 189.221, one approach might be to seek assistance from the Transportation Cabinet's Division of Vehicle Enforcement, which has both the equipment and the expertise. With respect to mandamus, while such remedy might lie to direct the sheriff to enforce statutory provisions within his purview, such remedy probably will not compel the exercise of such duty in a particular way, e.g., to require a sheriff to acquire scales for enforcement of vehicle weight provisions. Cf .,
Hargis v. Swope, Ky.,114 S.W.2d 75, 77 (1938).
The county judge/executive is not a sworn law enforcement officer in the sense of having police authority to enforce the traffic laws. Further, the county judge/executive has no duty to purchase scales for use by the sheriff's office in enforcing truck weight provisions. Mandamus probably will not lie against a county judge executive to require him to purchase scales for a sheriff's office use, as such is not his duty.
The fiscal court as a body, in its general oversight of county matters, might have a responcibility to fund necessary equipment for a sheriff's office, if the fees of the office do not permit the purchase of necesary equipment for operation of the sheriff's office. See for example, OAG's 83-293, and 83-360 (copies enclosed). Certainly a fiscal court could appropriate funds for such purpose. KRS 67.083(3)(t) and (u). However, the fiscal court, in determining whether to make an appropriation for purchase of scales for use by the sheriff's office, could weigh such need against funds available, reasonable enforcement priorities, availability of outside resources, and other considerations. A fiscal court is under a strict duty to ensure that essential obligations are provided for before making appropriations for those things that, while allowable, are not compulsory or indispensable. Cf.,