OAG 95-20

May 24, 1995

Subject: City police department's refusal to provide radio dispatching and information support to constables.

Written by: Gerard Gerhard

Requested by: Tom Gaines, Constable, Anderson County

Syllabus: A city police department is not required to authorize constables to use a radio system operating on a frequency licensed to the city or its police department for police use, or to provide to constables, radio dispatching and information support services.

OAGs cited: 95-11

Statutes construed: KRS 432.570(1), 432.570(4)

Opinion of the Attorney General

The following question, in substance, has been presented:

May a city police department lawfully refuse to provide radio communications support, including dispatching and information support, to constables?

In our view the general answer is yes, a city police department may lawfully refuse to provide radio dispatching and related information support services to constables. Discussion follows.

1. City May Refuse Constable's Use of City Police Radio System

First, if a city police department operates a radio system utilizing a radio frequency it has been licensed to use by the Federal Communications Commission, it may deny transmissions upon such frequency by others, and thus the “use of the system,” based upon authority found in regulations of the Federal Communications Commission. Pursuant to 47 Code of Federal Regulations (CFR) 90.433(b), the use of a radio frequency licensed to an operator (for example, a city police department) is subject to the control or discretion of the licensee.

Second, a city police department might, on the basis of KRS 432.570(1) (copy enclosed), decline to authorize constables to use a police radio system, the use of which would involve a constable's transmission of radio signals on a radio frequency licensed to the city or its police department by the Federal Communications Commission. Note also that a constable, without written authorization as provided in KRS 432.570(1), and subject to exceptions in KRS 432.570(4), would also be banned from possession, etc., of a portable or mobile radio or apparatus capable of receiving a frequency allocated by the Federal Communications Commission for police use.

2. City May Refuse to Provide Information Support to Constables

We are not aware of any statute or other authority of the law requiring a city police department to perform general information support services for a county constable. Absent such legal authority, we believe a city police department may lawfully decline to provide to constables, law enforcement information support services, as, for example, in relation to vehicle license checks, operators license checks, wanted persons, and other law enforcement information.

Although a city police department might provide general dispatching and law enforcement information support to a county police department and the county sheriff, and might draw information from a state automated system, we do not believe such facts equate to a constable's right to such support from the city police department. Each local law enforcement agency, again in general, must work out its own dispatching and information support arrangements.

Constables, or those who would run for such office, presumably are aware of the limitations of the office, and the complications or considerations that flow, or might flow, from those limitations.

The views expressed above address the narrow question of whether a specific governmental agency is required to provide certain support services to a given elected officer, or category of such officers. These views should not be taken as an indication that law enforcement authorities should not cooperate with each other in furtherance of the public interest.

Of possibly related interest see Opinion of the Attorney General (OAG) 95-11, copy enclosed.

Chris Gorman

Attorney General

Gerard R. Gerhard

Assistant Attorney General