[1995/oagheade.htm]

OAG 95-6

February 28, 1995

Subject: Deputy Sheriff Merit Boards

Written by: Gerard Gerhard

Requested by: Hon. N. Scott Lilly,Assistant County Attorney, Jefferson County Kentucky

Syllabus: "Top ranking and policy making deputy sheriffs" may not be lawfully excluded from coverage under deputy sheriff merit board provisions by a local ordinance creating such a board, and such provisions do not provide or imply that the term of office of a deputy sheriff shall extend beyond the service of the appointing sheriff.

OAGs cited: 81-430, 84-31, 84-171

Statutes construed: KRS 70.030(1); 70.260; 70.260(1); 70.263; 70.267(5); 70.270; 70.273

OPINION OF THE ATTORNEY GENERAL

The following questions have been presented:

First, in creating a deputy sheriff merit board, can the creating ordinance exclude top ranking and policy making deputy sheriffs from coverage by the merit system board?

Second, does the creation of a deputy sheriff merit board in any way abrogate the general rule that the term of a deputy's appointment is co-extensive with the appointing sheriff such that a deputy's appointment expires simultaneously with the appointing sheriff's term, ouster, resignation or death?

As to the first question, in our view the answer is no. An ordinance creating a deputy sheriff merit board pursuant to KRS 70.260(1) cannot lawfully exclude "top ranking or policy making deputy sheriffs" from the purview of such board. This is because the statute in question speaks in terms of "deputy sheriffs," a phrase encompassing all deputy sheriffs. No provision is made for exclusion of "top ranking or policy making deputies" from such category.

In our view the answer to the second question is also no. The deputy sheriff merit board legislation placed a limitation on the authority of a sheriff to revoke the appointment of a deputy sheriff, but did not remove or modify the authority of a sheriff, pursuant to KRS 70.030(1), to "appoint his own deputies." Accordingly, the rule still applies, that the term of office of a deputy sheriff expires with the cessation of service of the appointing sheriff. Discussion follows.

I. May Top Ranking and Policy Making Deputy Sheriffs be Excluded from Deputy Sheriff Merit Board Purview?

In our view, the answer is no.

A review of KRS 70.260 through 70.273 does not reveal express authority for a primary legislative body of a county to exclude "top ranking and policy making deputy sheriffs" from being covered by an ordinance establishing a deputy sheriff merit board. Further, KRS 70.260(1) provides:

The primary legislative body of each county may enact an ordinance creating a deputy sheriff merit board, which shall be charged with the duty of holding hearings, public and executive, in disciplinary matters concerning deputy sheriffs. For the purpose of KRS 70.260 to 70.273, the primary legis- lative body of each county that does not have an urban-county or charter county government shall be the fiscal court.

(Emphasis added.)

The above quoted statutory language, while providing discretion to a primary legislative body to enact an ordinance creating a deputy sheriff merit board, mandates that such board, if created, "shall be charged with the duty of holding hearings, public and executive, in disciplinary matters concerning deputy sheriffs." The phrase "deputy sheriffs," as used in the statute, is all-encompassing as related to persons in such position. Such language runs counter to there being implied authority for a primary legislative body to exclude "top ranking and policy making deputy sheriffs" from coverage under an ordinance creating a deputy sheriff merit board.

In our view, the statutory language noted (KRS 70.260(1)) affirmatively indicates that "top ranking and policy making deputy sheriffs," as "deputy sheriffs," are covered by the provisions of KRS 70.260 to 70.273, and cannot be excluded by a local ordinance establishing a "deputy sheriff" merit board.

II. Does the Creation of a Deputy Sheriff Merit Board Abrogate the General Rule that a Deputy Sheriff's Appointment Expires with the Appointing Sheriff's Term, Ouster, Resignation, or Death?

In our view the answer is no. Legislation passed by the 1992 Regular Session of the Kentucky General Assembly, authorizing the creation of deputy sheriff merit boards, does not expressly provide that the term of office of a deputy sheriff shall continue beyond the service of the appointing sheriff, and such provision cannot be implied from the terms of the enactment.

First, it has long been the recognized general rule that the term of office of the deputy of an officer, in the absence of a statute to the contrary, is coextensive with the term of the appointing officer. See for example, Hord v. State, 167 Ind. 622, 79 N.E. 916, 922, (1907), and the authorities cited therein (copy enclosed). And see, 67 C.J.S. "Officers" (1978) � 278, wherein it is noted with respect to deputies of an officer: " . . . [T]heir deputation expires with the office on which it depends." See also, 63A Am Jur 2d "Public Officers and Employees" (1984) � 569, "In the absence of some statutory provision to the contrary, the commission or appointment of a deputy officer runs or continues only during the term of the officer making the appointment." And see, McQuillin, Mun. Corp. (1990) � 12.33, where it is said: "The deputy's term of office is limited by that of the principal[.]"

With reference to deputy sheriffs specifically, 80 C.J.S. "Sheriffs and Constables" (1953) � 26 indicates, in part:

At common law the office and functions of a deputy terminate ipso facto when the sheriff goes out of office, as when the sheriff dies, resigns, or is removed, or is duly succeeded by another sheriff, or if his term expires under such circumstances that he is not entitled to hold over . . . .

Two prior opinions of this office (the Attorney General's Office), are in conformity with the common law as expressed above. See OAGs 81-430, and 84-31 (84-31 having been modified by OAG 84-171, regarding an issue not here involved). We believe the common law view or general rule regarding the term of a deputy is well recognized and followed in Kentucky.

It has been suggested that the prior opinions of this office (cited above) are based upon the "general rule," and KRS 70.030(1), prior to its amendment in 1992, and that, since the passage of the deputy sheriff merit board provisions, a new rule now applies. Both KRS 70.030(1), and the rigorous training requirements of KRS 70.263, it is suggested, limit the sheriff's discretion in appointing or revoking the appointment of deputies. See letter of counsel to Jefferson County Sheriff, February 6, 1995, copy attached.

We believe the general rule still applies.

KRS 70.030(1) was amended by � 6 of House Bill 84 of the 1992 Regular Session of the Kentucky General Assembly (Acts, 1992 Reg. Sess. ch. 438). KRS 70.030(1), as it now reads, is set forth below with the codified form of the new language being underlined.

The sheriff may appoint his own deputies, and may revoke the appointment at his pleasure except where that revocation is prohibited by the provisions of KRS 70.260 to 70.273. Before any deputy executes the duties of his office, he shall take the oath required to be taken by the sheriff.

It will be observed that the new language added to KRS 70.030(1) (underlined text immediately above) addresses only a sheriff's authority to revoke an appointment of a deputy. No limitation is placed upon the authority of a sheriff to "appoint his own deputies."

To say that the language added to KRS 70.030(1), by the amendment noted, limits the authority of a sheriff to appoint his own deputies, is tantamount to saying that such words say something which they plainly do not, or that the words "The sheriff may appoint his own deputies" have been removed from the statute, or have no meaning, which is clearly not the case.

If a sheriff must accept the deputies appointed by a preceding sheriff, then the sheriff clearly cannot "appoint his own deputies," despite the specific statutory authority to do so, as provided by KRS 70.030(1).

The legislature had before it the very provision of the statutes where it might have said: "The term of office of a deputy sheriff shall continue from sheriff to sheriff, unless a deputy is removed for cause." Or the legislature might have amended KRS 70.030(1) to read: "The sheriff shall accept as his deputies, deputies previously serving, and may appoint his own deputies as openings become available, and may revoke his appointments, and those of previously serving deputies, except where such revocation is prohibited by merit board provisions." Such language, or language of similar import, however, does not appear in either KRS 70.030(1), or the deputy sheriff merit board provisions.

In our view the current language of KRS 70.030(1) grants specific and unequivocal legislative authority for a sheriff to "appoint his own deputies." The effect of such authority, again in our view, is that the term of office of deputies appointed by a former sheriff automatically ceases when the service of the appointing sheriff ends, as when his or her term expires, or upon the resignation, ouster, or death of the sheriff. OAG 81-430, OAG 84-31.

The language added to KRS 70.030(1), by the 1992 Regular Session of the General Assembly, limits only a sheriff's power to revoke the appointment of a deputy, not the power of a sheriff to "appoint his own deputies."

III. Review of Substantive Provisions of KRS 70.260 to 70.273

Because of the remarks of counsel to the Jefferson County Sheriff (noted above, see letter attached), and the import of the issues here addressed, we have reviewed the substantive provisions (KRS 70.260 to 70.273) regarding deputy sheriff merit boards, to determine if language contained therein might provide or imply that the term of office of a deputy sheriff continues beyond the service of the appointing sheriff. We believe it does not.

The provisions quoted or discussed below are, in our view, the only ones, as among KRS 70.260 to 70.273, that are in the realm of bearing upon the tenure or term of office of a deputy sheriff.

KRS 70.260(1) - Basic Authority for Deputy Sheriff Merit Board

KRS 70.260(1) authorizes the primary legislative body of a county to establish, by ordinance, a deputy sheriff merit board. It provides, in part pertinent here:

The primary legislative body of each county may enact an ordinance creating a deputy sheriff merit board, which shall be charged with the duty of holding hearings, public and executive, in disciplinary matters concerning deputy sheriffs.

(Emphasis added.)

KRS 70.263 - Mandatory Training Requirements

KRS 70.263 provides, in part and in substance, that deputy sheriffs shall obtain 400 hours of certified training within one year, which, in the case of a deputy serving on the effective date of an ordinance creating a deputy sheriff merit board, means within one year of such date, and, in the case of a deputy appointed after the effective date of such an ordinance, within one year of his or her appointment. Other requirements are applicable to a deputy providing security services to the courts. Subsection (4) of KRS 70.263 provides:

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 limit.

KRS 70.267 - Prohibited Conduct, Construction, Probationary Period

KRS 70.267(5) provides:

A deputy sheriff's employment shall be probationary during the first year of service. A sheriff may, at his pleasure, revoke the appointment of a deputy who works for him at any time within one (1) year following the appointment.

(Emphasis added.)

KRS 70.270 - Discipline and Removal Procedures by Sheriff, Charges by Citizen

KRS 70.270 provides:

(1) Any deputy sheriff may be removed, suspended, or laid off by the sheriff for any cause which will promote the efficiency of the department. Except when an appointment is revoked during the probationary period described in KRS 70.267(5), the sheriff shall furnish the deputy with a written statement of the reason why the action was taken.

(2) Except for a revocation of an appointment pursuant to KRS 70.267(5), every action in the nature of a dismissal, suspension or reduction made by the sheriff shall be subject to review by the board at the request of any deputy sheriff affected by the provisions of KRS 70.260 to 70.273.

(3) Any citizen who makes written charges of misconduct, under oath, concerning the actions of any deputy sheriff covered by the provisions of KRS 70.260 to 70.273 shall present the charges to the sheriff, who shall investigate the charges. The sheriff shall determine what action, if any, shall be taken against the deputy, subject to the limitations set out in KRS 70.260 to 70.273. The citizen may appeal the determination of the sheriff to the board.

KRS 70.273 - Disciplinary and Removal Procedures by Board, Hearing, Appeals

KRS 70.273 provides, in part pertinent here:

(1) The board may remove, suspend, lay off or discipline any deputy sheriff covered by the provisions of KRS 70.260 to 70.273 on written charges of misconduct preferred on its own initiative or the initiative of any citizen, but only after reasonable notice to the accused and after a com- plete public hearing at which the deputy accused shall have the right to be present, represented by counsel, and confronted by all of the witnesses preferring charges against him.

* * *

(4) When an appointment is revoked during the probationary period described in KRS 70.267(5), the action of the sheriff shall be final. In all other disciplinary matters, the action of the sheriff or the board shall be final, except that any ag- grieved person may, within thirty (30) days after the decision is rendered, appeal to the Circuit Court of the county in which the board meets. The board shall be named as the respondent, and the county attorney shall represent the board before the court. The appeal taken to the Circuit Court shall be a review of the record by the court.

* * *

(Emphasis added.)

It will be noticed that two basic issues are addressed by the deputy sheriff merit board provisions cited above. One is disciplinary matters concerning deputy sheriffs. The other is required training. There is no language within such provisions expressly addressing the term of office, as such, of a deputy sheriff. There is no language, for example, stating that the term of office of a deputy sheriff covered by deputy sheriff merit board provisions shall continue from sheriff to sheriff, unless the deputy is removed for cause.

The deputy sheriff merit board provisions that address revocation, or, in the case of a deputy's failure to meet training requirements, forfeiture, of an appointment, have no relation to the expiration of a deputy's appointment by virtue of the cessation of service of the appointing sheriff. The expiration of a deputy's term of office by virtue of the cessation of the service of the appointing sheriff simply does not involve a revocation, forfeiture, or disciplinary matter that is within the purview of a deputy sheriff merit board pursuant to KRS 70.260 to 70.273.

Counsel to the Jefferson County Sheriff has indicated that the "rigorous training requirements of KRS 70.263(1), (2) and (3) limit the sheriff's discretion in appointing or revoking deputies." We do not agree.

While training provisions might affect the retention of a deputy, in that a deputy might forfeit his or her appointment if training requirements are not met, no mention is made among such provisions of training being an issue in relation to the appointment of a deputy sheriff. Further, any notion that the requirement or obtaining of "rigorous" training somehow equates with a deputy sheriff having a term of office continuing from sheriff to sheriff, is refuted by the fact that, by express proviso, a sheriff may dismiss a deputy at his pleasure at any time within one year following a deputy's appointment. It is within this same period that training must be obtained. The point is that the legislature did not specify that if a deputy sheriff obtains required training, the deputy shall be accepted by a sheriff subsequent to the one who initially appointed the deputy. Stated another way, a deputy sheriff's compliance with training requirements does not translate to an extended term of office, or restrict the appointive authority of the sheriff.

The deputy sheriff merit board provisions principally address the revocation, etc., of the appointment of a deputy sheriff in connection with disciplinary matters; they do not address, as such, the term of office of a deputy sheriff, and do not limit the authority of a sheriff to appoint his own deputies.

Of interest in relation to the reasoning and views expressed above, see El Paso Cty. Sher. Deputies v. Samaniego, 802 S.W.2d 727 (Tex.App.-El Paso 1990). A copy of that opinion is enclosed.

CHRIS GORMAN

ATTORNEY GENERAL

Gerard R. Gerhard

Assistant Attorney General