[1995/oagheade.htm]

OAG 95-22

May 26, 1995

Subject: Authority of Special Deputy Sheriffs

Written by: Gerard Gerhard

Requested by: Hon. Michael D. Bowling, State Representative, 87th Legislative District

Syllabus: "Volunteer" deputy sheriffs are, from a legal perspective, "special deputy sheriffs" (KRS 70.045). A "volunteer" (special) deputy sheriff, appointed for "general law enforcement" pursuant to 70.045(1) has the same powers, except in the case of a warrantless arrest pursuant to KRS 431.005(2), as a "regular" or paid deputy sheriff. A special deputy appointed for "emergency circumstances" under KRS 70.045(2) has the powers of a special deputy sheriff only during preparation for, or the occurrence of, emergencies such as fire, flood, storm, or other "such emergencies." The sheriff must cause signification of the statutory provision under which a special deputy is appointed to appear on the county clerk order book together with the deputy's name.

OAGs cited: OAG 92-115 and 92-140

Statutes construed: KRS 70.030; 70.045; 70.045(1); 70.045(2); 431.005(2); 431.005(3); 446.010(24)

OPINION OF THE ATTORNEY GENERAL

The following question, in substance, has been presented:

What is the scope of authority of "voluntary" (special) deputy sheriffs?

"Voluntary" or "Volunteer" deputy sheriffs are, from a legal perspective, "special deputy sheriffs" (KRS 70.045). A special deputy appointed under KRS 70.045(1) has the same powers as the sheriff, except in the case of a warrantless domestic violence arrest pursuant to KRS 431.005(2). A special deputy appointed under KRS 70.045(2), for emergency circumstances, has the authority of the sheriff, subject to the same limitation noted above, only during preparation for, or the occurrence of, an emergency of the nature provided for by KRS 70.045(2).

Kentucky law provides for two "basic" types of deputy sheriff, (1) a "regular deputy," (KRS 70.030) who must be paid, and (2) a "special deputy sheriff" (KRS 70.045), who may not be paid. In turn, there are two categories of "special deputy sheriffs." There are what might be termed "general law enforcement special deputies" (KRS 70.045(1)), and there are "emergency circumstance" special deputies (KRS 70.045(2)) (see below).

"Voluntary" or "volunteer" deputy sheriffs would fall in one of the categories of "special deputy sheriff."

KRS 70.045 provides for "special deputy sheriffs" in the following terms:

(1) The sheriff may appoint and have sworn in and entered on the county clerk order book (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 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.

It is obvious from the statute quoted above that the legislature intended that certain deputies would have "general law enforcement" authority (KRS 70.045(1)), while other deputies (emergency special deputies) would have authority only in connection with an emergency of the nature described in KRS 70.045(2). If this were not so, there would have been no need to enact KRS 70.045(2).

Other than the limitation on the authority of an emergency special (volunteer) deputy sheriff imposed by KRS 70.045(2), there appears to be only one statute limiting the general authority of a special deputy sheriff. KRS 431.005(3) effectively prohibits a special deputy sheriff, whether general or emergency, from making a warrantless arrest pursuant to KRS 431.005(2) in relation to what might be termed "domestic violence." See Opinion of the Attorney General (OAG) 92-115 and 92-140, copies enclosed.

In our view, a deputy sheriff, to include a "special" deputy sheriff, has, subject of course to statutory limitations, the same powers as the sheriff. Humphrey's Ex'r v. Wade, Ky., 84 Ky. 391, 1 S.W. 648, 650 (1886). The sheriff is, of course, a "peace officer" with associated powers. KRS 446.010(24).

To summarize, in our view: (1) A "general law enforcement" special (volunteer/voluntary) deputy sheriff, appointed pursuant to KRS 70.045(1), has general law enforcement authority not restricted to times of emergency, except as noted above in relation to a warrantless arrest under KRS 431.005(2). Such authority would include the authority to write citations, serve papers and perform other functions a regular deputy sheriff is authorized to perform. (2) An "emergency circumstance" special deputy, appointed pursuant to KRS 70.045(2), has the powers of a special deputy sheriff (authority to issue citations, make arrests, etc., subject to the limitation of KRS 431.005(2)) only during preparation for, or the occurrence of, a fire, flood, tornado, storm or other "such emergency."

In our view, given the distinction in types of special deputy sheriffs, the sheriff must cause the provision under which each deputy is appointed to be specifically indicated upon the county clerk order book, together with the name of each special deputy. The order book should reflect as appropriate, either "General Enforcement" or "Emergency," or, alternatively, KRS 70.045(1) or 70.045(2).

CHRIS GORMAN

ATTORNEY GENERAL

Gerard R. Gerhard

Assistant Attorney General