OAG 93-9


February 9, 1993




Hon. Charles R. McCollom, III

Henderson County Attorney

P.O. Box 1316

Henderson, Kentucky 42420

Re: Questions Concerning Deputy Sheriff Merit Boards. AGO Corr. No. 93-(O)-92.

Dear Mr. McCollom:

By letter of January 18, 1993, you pose several questions related to statutes providing for the establishment of "deputy sheriff merit boards" (KRS 70.260 to 70.273).

First, you ask, in substance, for clarification of the meaning of the phrase "prohibited conduct" as that phrase appears in the title (but not the text) of KRS 70.267. We understand your question to relate to what constitutes prohibited conduct of deputy sheriffs.

KRS 70.267 provides, in part:

(1) No deputy sheriff covered by the provisions of KRS 70.260 to 70.263 shall directly or indirectly solicit, receive, or be in any manner concerned in receiving, soliciting, or publicizing any assessment, gift, subscription or contribution to or for any political party or candidate for public office.

* * *

(3) No deputy sheriff covered by the provisions of KRS 70.260 to 70.273 shall be a candidate for any public office. Any person who violates this subsection shall forfeit his position as a deputy sheriff.

(4) Nothing contained in this section shall be construed to abridge the rights of any deputy sheriff with respect to his personal opinions, beliefs, or right to vote.

From a plain reading of KRS 70.267(1) it appears that a deputy sheriff is prohibited from participating in fund or gift solicitation matters of a political party or candidate, and by KRS 70.267(3) from being a candidate for any public office.

As the statute does not ban political activities that are not associated with political fund or gift solicitation, a deputy sheriff is not prohibited from activities not encompassed within the plain words of KRS 70.267. We do not believe, however, that a deputy sheriff may engage in campaign activities for or against a given candidate or political party while on duty, as such would involve direction of public resources toward a private purpose, which is violative of § 171 of the Constitution of Kentucky. A deputy, while off duty, and assuming private resources were involved, could for example stuff envelopes in connection with a political campaign if the mailings do not involve solicitation of contributions or gifts for a political party or candidate for public office.

Specific statutory protection is provided to deputy sheriffs regarding their personal opinions, beliefs, and right to vote. KRS 70.267(4) (above).

Your second question asks, again in substance, whether deputies who, in prior employment, received 400 hours of training, may be "grandfathered" so as not to be required to obtain additional training as called for by KRS 70.263. We believe the answer is no.

KRS 70.263 provides:

(1) Each person serving as a deputy sheriff on the effective date of an ordinance that creates a deputy sheriff merit board for the county in which he serves shall, within one (1) year following the effective date of that ordinance, successfully complete at least 400 hours of training approved by the Kentucky Law Enforcement Council.

(2) Each person appointed as a deputy sheriff in a county that has adopted a deputy sheriff merit board before the date of his appointment shall, within one (1) year following the appointment, successfully complete at least four hundred (400) hours of training approved by the Kentucky Law Enforcement Council.

(3) 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 time limit.

(Emphasis added.)

KRS 70.263 is specific as to when training must be obtained as indicated by the emphasized (underlined) language of the statute (above). There is no statutory authorization for accepting prior training in lieu of training as specifically called for by KRS 70.263. Accordingly, we believe one cannot be "grandfathered" as to training based upon training obtained other than in strict compliance with the specific requirements of KRS 70.263(1) and (2).

Last you ask about alternatives for obtaining training given the time limits for obtaining training imposed in KRS 70.263, and the large number of deputies involved.

KRS 70.263 does not provide alternatives for obtaining training. The department obviously should attempt to arrange a "staggered" schedule of training, and might want to seek legislative relief.

Sincerely,

Chris Gorman

Attorney General





Gerard R. Gerhard

Assistant Attorney General