[1993/oagheade.htm]

OAG 93-61

September 3, 1993

Hon. Don C. Kelly, P.E.

Secretary of Transportation

State Office Building

Frankfort, Kentucky 40622

Re: Whether Selected State Motor Vehicle Enforcement Officers May also be Appointed as Special Deputy Sheriffs.

Dear Secretary Kelly:

By letter of July 19, 1993, you ask whether selected Motor Vehicle Enforcement Officers may be appointed as special deputies of the Franklin County Sheriff.

In our view, a state "Motor Vehicle Enforcement Officer" is a "state officer," and a "Special Deputy Sheriff" is a "county officer." Because of statutory prohibition, one cannot lawfully hold both positions at the same time. Stated another way, a state Motor Vehicle Enforcement Officer cannot lawfully be, while holding such state office, also a Special Deputy Sheriff. Discussion follows.

Whether a state Motor Vehicle Enforcement Officer may also be lawfully appointed as a Special Deputy Sheriff of the Franklin County Sheriff, while holding such state position, is determined by KRS 61.080(1) (see also, Constitution of Kentucky � 165), regarding "incompatible offices." That statute provides:

No person shall, at the same time, be a state officer, a deputy state officer or a member of the general assembly, and an officer of any county, city or other municipality, or an employee thereof.

It follows that a determination must be made as to whether a "motor vehicle enforcement officer" is a "state officer," and whether a "special deputy sheriff" is a "county officer," or, an employee of a county.

In Commonwealth v. Howard, Ky., 379 S.W.2d 475, 476-477, (1964), the court, quoting from Taylor v. Commonwealth, 305 Ky. 75, 202 S.W.2d 992 (1947), set forth the elements to be considered in determining whether a position in public employment constitutes a "public office of a civil nature" as follows:

'(1) It must be created by the Constitution or by the Legislature or created by a municipality or other body through authority conferred by the Legislature; (2) it must possess a delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public; (3) the powers conferred, and the duties to be discharged, must be defined, directly or impliedly, by the Legislature or through legislative authority; (4) the duties must be performed independently and without control of a superior power, other than the law, unless they be those of an inferior or subordinate office, created or authorized by the Legislature, and by it placed under the general control of a superior officer or body; (5) it must have some permanency and continuity, and not be only temporary or occasional.'

First, regarding Motor Vehicle Enforcement Officers, KRS 281.770 is recognized as the statute providing for such officers. Wilson v. Bureau of State Police, Ky.App., 669 S.W.2d 18, 21 (1984). That statute provides:

(1) The commissioner, department of state police, is hereby authorized to issue commissions to employes of the department as law enforcement officers, and such employes when so commissioned shall have all the powers of peace officers in respect to enforcement of the chapter and all the statutes and regulations relating to motor vehicles operated as private or for-hire carriers.

(2) Peace officers commissioned as provided herein may be assigned additional duties in enforcing other provisions of law for specified limits of time during an emergency or time of special needs as determined by the commissioner in his discretion.

Applying the elements listed in Howard, supra, to Motor Vehicle Enforcement Officers: (1) The appointment of Motor Vehicle Enforcement Officers as agents of the state has been provided for by the legislature. KRS 281.770, Wilson, supra. (2) They have been delegated a portion of the sovereign power of government to be exercised for the benefit of the public (e.g., the power of peace officers to act in the name of the Commonwealth) (KRS 281.770). (3) The powers conferred upon them and the duties they are to discharge are defined or implied (KRS 281.770). (4) They perform their duties under the control of a superior officer (KRS 281.770). (5) The position, as a creature of statute, has some permanency and continuity.

In view of the analysis above, in our view the position of state Motor Vehicle Enforcement Officer is that of a "state officer."

For examples of comparable analysis, finding state enforcement positions to be "state offices," see OAG 60-57 (state Probation and Parole Officer), OAG 72-276 (State Park Ranger) (copies enclosed).

The question remains whether a "Special Deputy Sheriff" is a "county officer," or an employee of a county.

KRS 70.045 provides:

(1) The sheriff may appoint and have sworn in and entered on the county clerk order book one (1) special deputy for each two thousand five hundred (2,500) residents or part thereof in his county, to assist him with general law enforcement and maintenance of public order. The population of the county shall be determined by the most recent count or estimate by the federal bureau of census.

(2) The sheriff in each county may appoint and have sworn in, and entered on the county clerk order book, as many special deputies as needed to assist him 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. For purposes of this section only, an emergency situation 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.

(3) The special deputy shall:

(a) Be appointed and dismissed on the authority of the sheriff;

(b) Not receive any monetary compensation for his time or services;

(c) Serve at the request of the sheriff, unless personal conditions rule otherwise;

(d) Be answerable to and under the supervision of the sheriff, who shall be responsible for the actions of the special deputy; and

(e) Be appointed regardless of race, color, creed, or position.

(4) The position of special deputy as created and defined in subsections (1), (2), and (3) is subject to the provisions of this section only.

Analyzing the position of Special Deputy Sheriff in relation to the elements listed above from Howard, we find: (1) The position of "Special Deputy Sheriff" is created by the legislature by its enactment of KRS 70.045. (2) The position possesses a portion of the sovereign power of government, that of the power of the sheriff to make arrests, etc. (3) The powers conferred and the duties to be discharged are both directly and impliedly defined by the legislature in KRS 70.045(1) and (2). (4) The duties are those of an inferior or subordinate office authorized by the legislature and placed by it under the general control of a superior officer (the sheriff) (see KRS 70.045(3)(a)(b)(c) and (d)). The position, in being provided for by statute, has some permanency and continuity, it is not a temporary or occasional position.

Based upon the analysis above, in our view the position of "Special Deputy Sheriff" is that of a "county office," such that one appointed as a Special Deputy Sheriff would be a "county officer." In substantial accord with this view is OAG 82-254 (copy enclosed).

KRS 61.080(1), in part, bans one from serving at the same time as a state officer and as an officer of any county. Given our analysis above, regarding the positions of Motor Vehicle Enforcement Officer and Special Deputy Sheriff, we believe a Motor Vehicle Enforcement Officer cannot lawfully serve simultaneously in both positions. The two positions are statutorily incompatible with each other. KRS 61.080(1).

Sincerely,

CHRIS GORMAN

ATTORNEY GENERAL

Gerard R. Gerhard

Assistant Attorney General