OAG 93-51


July 1, 1993




Hon. Fred H. Grimes

McCracken County attorney

McCracken County Courthouse

301 South Sixth Street

Paducah, Kentucky 42003

RE: Whether or Not the Employment Status of Deputy Sheriffs With Long Uninterrupted Service Becomes "Probationary" for the First Year Following the Effective Date of an Ordinance Establishing a Deputy Sheriff Merit Board. KRS 70.260 et seq.

AGO Corr. No. 93-(O)-778.

Dear Mr. Grimes:

By letter of May 27, 1993, you ask, in substance, whether or not the employment status of a deputy sheriff, who has many years of uninterrupted service, is "probationary" during the first year following enactment of a deputy sheriff merit board ordinance by the county in which he or she is so employed.

In our view, while a deputy sheriff, who was serving in that capacity on the effective date of a local ordinance establishing a deputy sheriff merit board, is required to obtain certain training within one year of that effective date, or forfeit the position of deputy sheriff, a deputy's employment status is not rendered "probationary" by virtue of that training requirement, or by virtue of any other statutory language related to deputy sheriff merit boards. Discussion follows.

KRS 70.263 provides:

(1) Each person serving as a deputy sheriff on the effective date of an ordinance that creates a deputy sheriff merit board for the county in which he serves shall, within one (1) year following the effective date of that ordinance, successfully complete at least four hundred (400) hours of training approved by the Kentucky Law Enforcement Council.

(2) Each person appointed as a deputy sheriff in a county that has adopted a deputy sheriff merit board before the date of his appointment shall, within one (1) year following the appointment, successfully complete at lest four hundred (400) hours of training approved by the Kentucky Law Enforcement Council.

(3) A person failing to meet the requirements of this section shall forfeit his position as deputy sheriff immediately upon the expiration of the applicable one (1) year time limit.

It will be noticed from a plain reading of KRS 70.263(1)(see above), that a deputy sheriff, serving as such on the effective date of an ordinance creating a deputy sheriff merit board, is given one year from the effective date of that ordinance in which to successfully complete 400 hours of training approved by the Kentucky Law Enforcement Council. It will also be noticed from such a reading, that KRS 70.263(3) provides that a person failing to meet the requirements of "this section" (meaning KRS 70.263) "shall forfeit his position as deputy sheriff immediately upon the expiration of the one year time limit."

There is no language in KRS 70.263, or elsewhere in the statutory provisions concerning a deputy sheriff merit board, that provides for relief, based upon one's term of uninterrupted service (or for other reasons), from the mandatory forfeiture of one's position as a deputy sheriff, as directed by KRS 70.263(3), if training is not obtained in keeping with KRS 70.263.

Despite the fact that the continued employment of a deputy sheriff, who was serving as such on the effective date of an ordinance establishing a deputy sheriff merit board, is made contingent upon obtaining certain training within a specified time period, such fact does not render the deputy's employment status as "probationary," as that term is generally used in connection with employment.

It is perhaps common in governmental employment, for one who has just been hired, to be in a probationary status for a period of time, e.g., a year, subsequent to being hired. In the case of deputy sheriffs covered by deputy sheriff merit board provisions (KRS 70.260 et seq.), for example, KRS 70.267 expressly provides that the employment of a deputy sheriff is probationary "during the first year of service." The words "first year of service" refer, in our view, to the first year of service subsequent to appointment of a person as a deputy sheriff.

A review of the deputy sheriff merit board provisions does not disclose any language within those provisions that would place a deputy sheriff (which might include one with a number of years of uninterrupted service), so serving on the effective date of an ordinance establishing a deputy sheriff merit board in the county of the officer's employment, in a "probationary" employment status.

We emphasize that while a deputy sheriff (including one with substantial uninterrupted service in that capacity) who was serving as such on the effective date of an ordinance establishing a deputy sheriff merit board in the county in which he or she is so employed, is not, by virtue of statutory provisions related to deputy sheriff merit boards, placed in a "probationary" employment status, he or she still has only one year, following the effective date of such ordinance, in which to successfully complete required training. KRS 70.263(1). In the case of a person serving as a deputy sheriff on the effective date of an ordinance creating a deputy sheriff merit board, if the training required of such officer is not successfully completed within one year following the effective date of that ordinance, the deputy sheriff will, by operation of law, forfeit his or her position as a deputy sheriff. KRS 70.263(3).

Sincerely,

CHRIS GORMAN

ATTORNEY GENERAL





Gerard R. Gerhard

Assistant Attorney General

(502) 564-7600

GRG:par