RONALD McCLURE v. FRANK AUGUSTUS, SHERIFF OF McCRACKEN COUNTY, KENTUCKY; MERIT BOARD; HON. DONNIE ROBERTS, CHAIRMAN; HON. GERALD STEWART, MEMBER; HON. RONALD ALSTON, MEMBER; AND HON. CHRISTOPHER SHEA NICKELL, MEMBER
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RENDERED: December 15, 2000; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-002643-MR
RONALD McCLURE
APPELLANT
APPEAL FROM McCRACKEN CIRCUIT COURT
HONORABLE BILL CUNNINGHAM, JUDGE
ACTION NO. 99-CI-00018
v.
FRANK AUGUSTUS, SHERIFF OF McCRACKEN
COUNTY, KENTUCKY; MERIT BOARD;
HON. DONNIE ROBERTS, CHAIRMAN;
HON. GERALD STEWART, MEMBER;
HON. RONALD ALSTON, MEMBER; AND
HON. CHRISTOPHER SHEA NICKELL, MEMBER
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
McANULTY, MILLER, AND TACKETT, JUDGES.
MILLER, JUDGE:
Ronald McClure brings this appeal from a June 21,
1999, judgment of the McCracken Circuit Court.
We affirm.
On January 8, 1999, Frank Augustus, Sheriff of
McCracken County, Kentucky, filed a declaratory action in the
McCracken Circuit Court challenging the constitutionality of the
Deputy Sheriff Merit Board (Merit Board) established by the
McCracken County Fiscal Court under the provisions of Kentucky
Revised Statutes (KRS) 70.260-273.1
1
KRS 418.040 and Ky. R. Civ.
Those statutes provide, in part, as follows:
KRS 70.260(1):
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 70.261:
(2)
The board shall, at a minimum, adopt a
body of rules that addresses the
following subjects:
(a)
For deputy sheriffs:
1.
Qualifications for initial and
continued employment, which
shall at a minimum include:
citizenship, age, physical,
mental, and educational
requirements;
2.
Grounds for temporary
appointments;
3.
Advancement requirements.
Deputy sheriffs shall be
employed for at least three
(3) full years before being
eligible for the rank of
sergeant;
4.
Factors that shall, or may,
result in demotion, the
procedures for determining
whether or not to demote a
deputy, and the procedures for
executing a demotion;
5.
Factors that shall, or may,
result in firing, probation,
suspension, or removal; and
6.
Administrative procedures for
the deputies in the office
such as transfer, layoff, and
(continued...)
-2-
P. 57.
On January 15, 1999, Ronald McClure moved to intervene in
the proceedings.
McClure had been discharged as deputy by
Sheriff Augustus on July 21, 1998, and was seeking to have his
discharge reviewed by the Merit Board.
On March 2, 1999,
McClure's motion to intervene was granted.
Deputy McClure's
intervention squarely pitted the power of the sheriff to dismiss
a deputy against the authority of the Merit Board.
McClure, of
course, maintained the authority of the Board.2
The cause came on for conclusion, and the circuit court
entered the order from which this appeal arises holding that the
establishment of the Merit Board was unconstitutional.
The court
held inter alia that the Merit Board impermissibly intruded upon
the constitutional office of sheriff and was an infringement upon
the doctrine of separation of powers.
Ky. Const. §27 and §28.
Perforce, the court reasoned Sheriff Augustus acted within his
prerogative in dismissing Deputy McClure.
1
(...continued)
reinstatement. . . . (Emphasis
added.)
KRS 70.273(5):
The provisions of KRS 70.260 to 70.273 shall
not apply to any nonsworn employee appointed
by the sheriff pursuant to KRS 70.030, to any
special deputy appointed by the sheriff
pursuant to KRS 70.045, or to a deputy in a
policy-making or confidential position
excluded from coverage by the ordinance
creating the deputy sheriff merit board.
2
Kentucky Revised Statute 70.273(5) (see footnote 1)
specifically mandates the exclusion of deputy sheriffs “in a
policy-making or confidential position.” It is, of course,
arguable that all deputies are in such a position. This issue,
however, has not been raised in these proceedings.
-3-
The office of sheriff is a venerable institution -- a
part of our English heritage.
and Constables §2 (1987).
Conquest (1066).
70 Am. Jur. 2d, Sheriffs, Police,
In England, it predated the Norman
(1998) at 730.
10 The New Encyclopedia Britannica, Sheriff
In this Commonwealth, it is a constitutional
office filled by vote of the people.
Ky. Const.
§99.3
The
constitution does not prescribe the duties of the sheriff.
duties are left to the legislature and the common law.
Those
The
sheriff is not an officer of the state (Shipp v. Bradley, 210 Ky.
51, 275 S.W. 1 (1925)), but rather a ministerial officer under
the executive branch of the county government.
The office of sheriff is one of high esteem and large
consequence.
importance.
It is charged with functions of great and small
The sheriff's responsibilities are wide in scope and
varied in nature.
Whether it be to guard and protect life or
property, quell domestic disturbances, or remove a pet from a
tree, the office of sheriff is the point of initial contact.
No
office is closer to the people.
The sheriff is statutorily empowered to: collect taxes
(KRS 134.140); be in attendance upon the office of clerk for
delivery of processes to be served (KRS 70.075); be in attendance
3
§99.
County officers, justices of the peace, and
constables — Election — Term.
At the regular election in nineteen hundred and ninetyeight and every four years thereafter, there shall be
elected in each county a . . . Sheriff . . ., who shall
enter upon the discharge of the duties of . . . [his]
office(s) on the first Monday in January after . . .
[his] election, and who shall hold . . . [his]
office(s) four years until the election and
qualification of their successors.
-4-
upon the fiscal court and any Court of Justice for the purpose of
keeping order (KRS 70.140); post notice of the release of certain
prisoners (KRS 197.170); act as jailer under specified conditions
(KRS 71.090); convey prisoners to institutions for execution of
sentence (KRS 70.130 and KRS 431.215); visit and inspect dance
halls, roadhouses, places for sale of alcohol, restaurants,
places of lodging, etcetera, and to report monthly to the county
attorney and circuit court clerk (KRS 70.160); and patrol the
public roads in the county (KRS 70.150).
These enumerated
statutory duties are not, by any means, exhaustive.
is the general conservator of the peace.
The sheriff
See Lusk v.
Commonwealth, 291 Ky. 339, 164 S.W.2d 389 (1942).
Overall, the
office of sheriff is entrusted with the maintenance of law and
order and the assurance of peace and tranquility in the lives of
all countians.
The sheriff is, in fact, the chief law enforcement
officer of the county, especially empowered to summons all
persons to aid in the performance of his duties.
KRS 70.060
provides as follows:
Sheriff may command power of county.
Any sheriff, deputy sheriff or other like
officer may command and take with him the
power of the county, or a part thereof, to
aid him in the execution of the duties of his
office, and may summon as many persons as he
deems necessary to aid him in the performance
thereof.
The office of sheriff is unique in that the occupant is required
not only to take the oath prescribed by Kentucky Constitution
§228, but also the “special oath” required in KRS 70.010.
-5-
In order to execute the many and divers functions of
his office, the sheriff is empowered to act through deputies.
KRS 61.035.
The deputies are not employees of the sheriff, but
rather are deputized persons who fill the office of sheriff in
the sheriff's place and stead.
of the sheriff.
KRS 61.035.
same oath as the sheriff.
A deputy acts with the authority
A deputy is required to take the
KRS 70.030.
It has long been
established that a sheriff is liable for the acts of a deputy in
the performance and discharge of official duties.
See West v.
Nantz' Adm'r., 267 Ky. 113, 101 S.W.2d 673 (1937), Stephens v.
Wilson, 115 Ky. 27, 72 S.W. 336 (1903).
In Harlan v. Lumsden, 62
Ky. 86, 1 Duv. 86 (1863), it was held that a deputy sheriff was
not directly liable to the Commonwealth for failure to pay over
revenues collected, but was liable to the sheriff, who in turn
was liable to the Commonwealth.
Deputies have historically served at the pleasure of
the sheriff.
See Hodges v. Daviess County, 285 Ky. 508, 148
S.W.2d 697 (1941), and Day v. The Justices of the Fleming County
Court, 42 Ky. 198, 3 B. Mon. 198 (1842).
Kentucky Statutes §
4560, the precursor of the statute under attack, provided as
follows:
§ 4560. Deputies; appointment and removal;
oath. — Every sheriff may, by and with the
approval of the county court, appoint his own
deputies, and may revoke the appointment at
his pleasure. Before any deputy shall
proceed to execute the duties of his office
he shall take the oath required to be taken
by the sheriff. (Emphasis added.)
-6-
Under that statute, the power of the sheriff to dismiss deputies
was absolute.4
If there is anything self evident in our system of
government, it is that a constitutional office holder is charged
with the unqualified responsibility of fulfilling the functions
of the elected office.
To these ends, the sheriff may be removed
from office for sundry failures.
Ky. Const. §227, KRS 61.040,
KRS 63.100, and Cf. Holliday v. Fields, 210 Ky. 179, 275 S.W. 642
(1925).
We think it must naturally follow that a sheriff could
suffer a forfeiture of his office by and through the delinquent
acts of deputies.
For this reason alone, it is indispensable
that a sheriff at all times must possess the full and complete
confidence of deputized personnel.
We now come to the pivotal question of whether the
sheriff or the Merit Board is be empowered to remove deputies.
More succinctly, we frame the issue as whether the legislative
branch of government may constitutionally seize the prerogative
of the sheriff to dismiss deputies and place that prerogative in
the discretion of a Merit Board.
Under the statutory scheme of KRS 70.260-273, the
legislature has authorized the local legislative body to
establish a five-member board, two of whom are appointed by the
county judge/executive, two by the sheriff, and one “elected” by
the deputy sheriffs of the county.
“Deputy Sheriff Merit Board.”
The board is designated the
Primarily, the board is empowered
4
The power of appointment was subject to approval of the
county court as a part of the system of checks and balances. See
70 Am. Jur. 2d Sheriffs, Police, and Constables §13 (1987).
-7-
to establish the qualifications for initial appointment of
deputies.
The Board is also directed to adopt rules pertaining
to training and disciplinary matters and to set forth factors
that may result in demotion or dismissal.5
concerned with appointment and training.
We are not here
We are only concerned
with the power to discharge.
As heretofore noted, deputies are not mere employees;
they are rather deputized persons with the full power of the
sheriff.
In our opinion, it is beyond all hope that a sheriff
could fulfill the multiple and heterogeneous functions of the
office without the power to discharge a deputy who is empowered
to act in place and stead.
Moreover, it is beyond all reason
that a sheriff could be so expected.
We do not think that in this Commonwealth the power of
removal of deputies has been exercised other than by the sheriff.
For the first time, the enactment of the merit system places the
ultimate power of discharge within the jurisdiction of the board.
It simply strips the sheriff of the power to discharge deputies.
It is this transfer of authority that is said to offend the
constitution.
Our constitution is emphatic in addressing separation
of powers.
Ky. Const. §27 provides:
§ 27. Powers of government divided among
legislative, executive and judicial
departments. — The powers of the government
of the Commonwealth of Kentucky shall be
5
It does not appear that the statutory scheme makes
provision for termination of deputies when the sheriff leaves
office. In this regard, it has the characteristics of “tenure of
office.”
-8-
divided into three distinct departments, and
each of them be confined to a separate body
of magistracy, to wit: Those which are
legislative, to one; those which are
executive, to another; and those which are
judicial, to another.
Ky. Const. §28 provides:
§ 28. One department not to exercise power
belonging to another. — No person or
collection of persons, being of one of those
departments, shall exercise any power
properly belonging to either of the others,
except in the instances hereinafter expressly
directed or permitted.
It has been said that the foregoing provisions present a “doublebarreled, positive-negative approach.”
See Legislative Research
Commission, Prather v. Brown, Ky., 664 S.W.2d 907, 912 (1984).
Our division of government into three branches is clear and
unambiguous, probably more so than provided by constitutions of
other states.
(1922).
See Sibert v. Garrett, 197 Ky. 17, 246 S.W. 455
Sections 27 and 28 not only separates the powers of
government but prevents each branch from intruding into the
powers or functions of another.
See Legislative Research
Commission, Prather, 664 S.W.2d 907.
The unreasonable
interference by one branch into the functions of another is an
intrinsic violation of Sections 27 and 28.
The dismissing of deputies by the sheriff is the
exercise of an executive power by an independently elected
executive officer.
We are of the opinion the legislative branch
may not usurp this power without offending Sections 27 and 28 of
our constitution.
As such, we hold that the establishment of the
Merit Board is unconstitutional.
-9-
For the foregoing reasons, the judgment of the
McCracken Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE, FRANK
AUGUSTUS, SHERIFF:
Tod D. Megibow
Paducah, Kentucky
Mark D. Pierce
Paducah, Kentucky
-10-
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