Opinion No. (1989) ( 1989 )

THE ATTORNEY GENERAL HAS ASKED ME TO RESPOND TO YOUR REQUEST FOR AN OPINION BY MEANS OF THIS LETTER EXPRESSING MY PERSONAL VIEWS ON THE QUESTIONS YOU ASK.

AS YOU POINT OUT IN YOUR LETTER IT APPEARS FROM THE LANGUAGE OF 19 O.S. 547 (1981), THAT THE SHERIFF MAY APPOINT AS MANY RESERVE DEPUTIES "AS ARE NECESSARY TO PRESERVE THE PEACE AND DIGNITY OF THE COUNTY." THE DECISION AS TO HOW MANY RESERVE DEPUTIES ARE NECESSARY APPEARS TO BE COMMITTED BY THE LEGISLATURE TO THE DISCRETION OF THE SHERIFF AT LEAST AS AN INITIAL DECISION. IN MY OPINION THIS STILL LEAVES SOME ROOM FOR DISCRETION ON THE PART OF THE COUNTY EXCISE BOARD AS TO HOW MANY RESERVE DEPUTIES THE COUNTY CAN AFFORD. WHEN THE EXCISE BOARD UNDERTAKES TO REVIEW THE ESTIMATE OF NEEDS PURSUANT TO 68 O.S. 2487(2) OR TO REVISE THE ESTIMATE OF NEEDS PURSUANT TO 68 O.S. 2487(5), IT CLEARLY EXERCISES ITS LAWFUL DISCRETION. SEE ABEL V. MADDEN, 738 P. 2D 1340 (OKL. 1987); ROGERS V. EXCISE BOARD OF GREER COUNTY, 701 P 2D 754 (OKL. 1984); AND SUMMEY V. TISDALE, 658 P. 2D 464 (OKL. 1982). THE REVIEW PURSUANT TO 2487(2) IS CLEAR AND DISTINCT FROM THE REVISION PURSUANT TO 2487(5), AND AT NEITHER STAGE CAN THE BOARD BE ARBITRARY IN ITS DECISIONS.

AT THE 68 O.S. 2487(2) REVIEW STEP I THINK THAT THE SHERIFF GETS A HEAVY PRESUMPTION RUNNING IN HIS FAVOR BECAUSE OF THE LANGUAGE OF 19 O.S. 547 (1981), BUT THAT IT IS POSSIBLE TO OVERCOME THIS IF EVIDENCE IS PRESENTED TO THE BOARD SO THAT IT CAN HAVE SOME BASIS FOR DISAGREEING WITH THE SHERIFF'S DETERMINATION OF NEED. AT THE 68 O.S. 2487(5) REVISION STAGE (WHEN NECESSARY) BOTH THE COUNTY COMMISSIONERS AND THE SHERIFF SHOULD BE OFFERED OPPORTUNITY TO BE HEARD BY THE BOARD, SINCE THE RESERVE DEPUTIES ARE THE SHERIFF'S APPOINTEES BUT THE COMMISSIONERS PAY FOR THEIR BOND AND WORKERS COMPENSATION COVERAGE. I DON'T THINK THE COUNTY COMMISSIONERS REALLY HAVE ANY SAY-SO UNTIL THIS STAGE OF THE BUDGET PROCESS.

IN SHORT I THINK IT IS THE COUNTY EXCISE BOARD WHOSE DISCRETION CAN SUPERSEDE THAT OF THE SHERIFF, AND NOT THAT OF THE COMMISSIONERS, AS TO HOW MANY RESERVE DEPUTIES THE COUNTY MAY NEED AND/OR CAN AFFORD.

(HUGH H. COLLUM)