[1995/oagheade.htm]

OAG 95-11

March 23, 1995

Subject: Constables

Written by: Gerard Gerhard

Requested by: Hon. Tony West; Hon. Tony Workman; Hon. Mike Saunders, Constables, Boyd County

Syllabus: Except where otherwise directed by statute, allocation of resources to constables rests with the discretion of the fiscal court. Substantive responses cannot be provided regarding questions that are not accompanied by sufficient facts to enable an answer.

OAGs cited: 65-622; 82-628; 74-43

Statutes construed: 62.150; 64.530; 64.530(1); 64.530(2); 64.530(3); 67.080(1)(c); 68.210; 68.240; 70.310; 70.320(3); 134.160; 342.630(2); 342.640(3)

Constitutional sections construed: 101; 234

OPINION OF THE ATTORNEY GENERAL

This opinion addresses several questions related to constables. The questions are set forth, in substance, below, with each question being followed by the response to it.

The request for this opinion pointed out, again in substance, that the questions were in relation to constables who are elected by the people of their districts, are duly sworn peace officers with power of arrest, and who have LINK/NCIC identification numbers.

1. Is the fiscal court required to pay for the official bond of constables (KRS 70.310), as the county does for other officials?

In our view the answer to this question, in relation to Boyd County, or any county that does not have a population of 200,000 or more, is no.

The legislature has not enacted a provision specifically addressing payment of a constable's bond (KRS 70.310). KRS 62.150 provides that in a county with a population of 200,000 or more, elective or appointive officers shall have a claim against the county for the amount of a corporate surety's premium, except where the state is made liable for such claim. Boyd County, however, does not have sufficient population to fall within KRS 62.150. Since there is no statute mandating that the fiscal court pay for the bond of a constable (except in a county in which KRS 62.150 applies), whether the fiscal court shall pay the premium for such bond is a matter left to the discretion of the fiscal court under its authority to regulate and control the fiscal affairs of the county (KRS 67.080(1)(c)). The fiscal court is not required to make such payment. The fact that other officers (other than constables) have broader required tasks that they must perform on behalf of the county, by contrast to constables, might be a valid basis upon which the fiscal court might pay the official bonds of other officers, and not those of constables.

2. Are constables supposed to have an office for keeping official documents, securing evidence, and conducting official duties?

To the extent this question asks whether a constable is required ("supposed") to have an office, in our view the answer is no.

Additionally, to the extent this question might indirectly ask whether a fiscal court must supply or pay for the cost of an office for a constable, we believe the answer also is no. We overrule a previous opinion of this office, OAG 74-43, indicating that a fiscal court would have a responsibility to provide a constable with an office in his district, and the equipment necessary to accomplish his statutory duties, where he or she "pursues the duties of that office on a regularly scheduled work week basis [day by day work week]."

First, OAG 74-43 cites � 101 of the Constitution of Kentucky as the basis for the finding that a constable must maintain his office in the district from which he was elected.

A review of � 101 incident to this response indicated that it does not address the location of a constable's office. There is, however, a constitutional provision that provides that all county officers (which would, of course, include a constable) shall keep their offices in their respective districts. That section is � 234, not � 101, as indicated in OAG 74-43. See � 234 of the Constitution of Kentucky, and, Ellis v. Wright, 237 Ky. 98, 34 S.W.2d 966 (1931). And see, OAG 65-622, copy enclosed. We note that � 234 of Kentucky's Constitution, while requiring that county officers keep their offices in their districts, does not require that an officer have an office.

Second, OAG 74-43 cites Barkley v. Gatewood, 285 Ky. 179, 147 S.W.2d 373 (1941), and Funk v. Milliken, Ky., 317 S.W.2d 499 (1958), as authority for the conclusion that a fiscal court must furnish a constable with an office and equipment necessary for accomplishment of statutory duties "where a constable is elected and pursues the duties of that office on a regularly scheduled work week basis [day by day work week]." Upon review incident to this opinion, we believe these cases do not support, even by extension of reasoning, such view. Further, we believe the view expressed in OAG 74-43, that a fiscal court must furnish an office and equipment for a constable, under circumstances described in that opinion, is inconsistent with judicial decisions of a more recent vintage than OAG 74-43.

Neither Barkley nor Funk expressly address whether a constable is required to have an office, or whether the fiscal court is required to supply, under certain circumstances, an office and equipment for constables.

Barkley involved whether a fiscal court was liable for official long distance calls of a sheriff (not whether a fiscal court might have to provide an office and equipment for a constable, and not whether a constable is required to have an office).

Funk, as related to constables specifically, addressed only the maximum compensation limit of constables, not whether a fiscal court must furnish an office and equipment to a constable, etc. See Funk, above, at 505.

There is no language in either Barkley or Funk that can be reasonably said to say that a fiscal court must provide a constable with an office and equipment, or that a constable must have an office, nor is there reasoning in those cases that might be said to indicate or imply such requirements.

Additionally, certain judicial decisions, well after issuance of OAG 74-43, run counter to the conclusion in that opinion, that a fiscal court, under the circumstances described in that opinion, must furnish an office and equipment to a constable.

In Fiscal Court v. Taylor County Police, Ky., 805 S.W.2d 113, 115 (1991) (copy enclosed), the Kentucky Supreme Court, in the course of reversing a Court of Appeals ruling effectively requiring a fiscal court to fund an established county police force, indicated:

[W]e cannot substitute our judicial fiat for that of the clear legislative purpose and the traditional role of fiscal courts in setting legislative and fiscal policy.

The Court, earlier in its opinion, specifically discussed KRS 67.080(1)(c) which provides that the fiscal court may regulate and control the fiscal affairs of the county, and commented that:

No matter how far one looks, or how far one stretches the language, the only interpretation that can be made is that the fiscal affairs of the county are to be regulated and controlled by the fiscal court.

(Id., 114.)

In a "not to be published" opinion rendered May 27, 1994, the Court of Appeals, in Hardin County Constables Association, Inc. v. Hardin County Fiscal Court, Nos. 93-CA-300-MR and 93-CA-415-MR, disc. rev. den. 9/21/94 (copy enclosed), in specific relation to the request of constables in that litigation that the fiscal court of Hardin County pay certain of their expenses as necessary governmental expenses, cited and followed the view of the Kentucky Supreme Court in Fiscal Court of Taylor County v. Taylor County Metro Police (above). The Court of Appeals indicated, in substance, that neither the trial court nor the Court of Appeals had authority to order the fiscal court to provide a minimum level of funding to cover the expenses of constables.

While the Court of Appeals opinion cited above is a "not to be published" opinion, that, in accordance with Rules of Civil Procedure (CR) 76.28(4)(c), cannot be cited or used as authority in any other case in any court of this state, the opinion nonetheless provides an indication of the view the courts might adopt, in a later published opinion, that, under present law, constables do not have a judicially enforceable right to funding from a fiscal court, absent statutory direction to the contrary.

Our review of the statutes that might bear upon a constable being required to have or be furnished an office did not disclose any statute to such effect. There is no statute related to constables that is comparable, for example, to KRS 134.160, which directs that fiscal courts provide the sheriff with a room or rooms for an office.

We believe that absent express statutory direction that a constable be furnished with specified resources, or perhaps the statutory imposition upon constables of a broad range of specific duties comparable to the duties imposed upon a sheriff, the allocation of county funds to provide a constable with an office and equipment is a decision that lies within the discretion of the fiscal court.

OAG 74-43, for the reasons indicated above, is overruled.

3. Is the county required to carry insurance on constables, as for example, through the Kentucky Association of Counties (KACO)?

A county is required to carry insurance on constables where expressly required to do so by statute.

This question does not describe what is meant by "insurance," as the term is used in the question. A county is required to carry, on constables, such insurance as a statute directs be carried. Absent statutory direction that a given type of insurance be carried, a fiscal court is not, in our view, required to do so. This view is based upon reasons discussed above, regarding a fiscal court's authority over the financial affairs of a county.

A county (or fiscal court) is required, for example, to carry workers' compensation coverage for constables. See KRS 342.630(2), 342.640(3), and 64.530(2). And see, OAG 82-628, copy enclosed.

4. Is the county required to establish a budget for the constable's office?

We understand this question as asking whether the county must establish in its budget a category for constables, and allocate funds in such regard.

In our view, for the reasons expressed above, a county (or fiscal court) is not required to "establish a budget for the constable's office" meaning to make a budgetary allocation or appropriation to such office, except where express requirements of the statutes mandate an appropriation or payment to, or on behalf of, constables.

If a county allocates funds to constables, it must establish a budget category in such regard, and show appropriate funds allocated in such category.

For example, KRS 70.320(3) requires that each deputy constable in counties containing a city of the first class "shall be compensated for his services by salary fixed by the fiscal court, and paid out of the county levy." A county in such circumstance must budget funds for the statutorily required expense. Similarly, if a fiscal court, as a matter of discretion, allocates funds to constables, the county budget must have a category in such regard.

As the question of whether the county is required to "establish a budget for the constable's office" can be taken different ways, we note that a county budget must also have a category related to any monies that might be received from constables.

See KRS 68.210 and 68.240. For details regarding county budget requirements, consult with the Department of Local Government.

5. Do constables have the same privileges as the sheriff's office and the volunteer county police department?

Because we do not know what "privileges" are addressed by this question, we cannot provide a definitive answer. Each agency would obviously have those express powers specifically provided to the agency by law. Certain "privileges" might be common to all peace officers, others might not. Without knowing the specific privileges related to this question, we cannot provide a definitive response.

6. Does the Regional Public Safety Communications Center have the right to discriminate against constables by not allowing them the "full usage agreement" it allows other law enforcement departments in the county?

Because detailed facts regarding the communications center involved did not accompany this question, we cannot provide a substantive response. A reliable, substantive response to this question would require information about the legal character or status of the center, its funding source or sources, a description of the content of a "full usage agreement," and any "limited usage agreement" that might have been extended to constables, and, a description of the basis of the center's refusal to extend to constables, a "full usage agreement."

In addition to items mentioned in the text above as being furnished with this opinion, we are enclosing "miscellaneous letter" responses of this office dated November 30, 1994, and December 5, 1994, to Constable Raymond Sands, and Constable Peter Samples, respectively. We believe those responses may be of interest in connection with constables.

CHRIS GORMAN

ATTORNEY GENERAL

Gerard R. Gerhard

Assistant Attorney General