Request By:
Mr. Frank Brown, Jr.
Staff Writer
Morehead Publishing Company
722 West First Street
Morehead, Kentucky 40351
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You request the opinion of the Attorney General on a matter involving the Rowan County Fiscal Court and the Rowan County Jailer.
For eleven months, you say, there has been no Rowan County jail. A circuit judge condemned it, and prisoners have been transported to and housed in jail facilities in surrounding counties.
The incumbent county jailer performs janitorial services at the courthouse, but no duties in relation to keeping prisoners.
You ask whether fiscal court can legally pay a $16,000-plus yearly salary to the jailer under the circumstances.
The county jailer's chief responsibility is receiving and keeping in the jail all persons who are lawfully committed to the jail, until they are lawfully discharged. KRS 71.040. He must feed the prisoners and treat them humanely. In counties of less than 75,000 population, the county jailer is additionally the superintendent of all county buildings.
But the county jailer cannot exercise custody of the jail and jail prisoners unless there is a county jail. The securing of a sufficient jail is the responsibility of the fiscal court. KRS 67.080(4). Rowan County has no jail.
The constitution and statutes contemplate the use of tax money to pay salaries of public officials for only services actually rendered. Section 3, Kentucky Constitution and KRS 64.410. No officer can demand and receive a fee for services not actually rendered. KRS 64.410(2)(c); and Ray v. Woodruff, 168 Ky. 563, 182 S.W. 622 (1916).
Thus, the payment of any portion of the jailer's $16,000 salary not reflecting services actually rendered would be illegal. As between the jailer and members of fiscal court, it would be up to the courts to determine whether he would be allowed to recoup any financial loss [where he is directed by the courts to turn back into the county treasury any salary not earned] from such members of fiscal court, under the theory that their failure to furnish a jail was the immediate cause of the jailer's inability to earn his salary.
That portion of the $16,000 which represents the annual appropriation for janitorial expenses, under KRS 67.130, would be legal, provided it reflects actually janitorial work performed. See Leslie County v. Hensley, 276 Ky. 679, 125 S.W.2d 255 (1939) 256.
Lastly, you ask whether the fiscal court can legally provide a house for the jailer, since the jail structure does not offer adequate quarters. The answer is "no".
Where possible the jailer, or deputy, is required to reside in the jail. KRS 71.020. Since it is not possible, the jailer or deputy is not required to live in the jail. There is, however, no statutory provision permitting or requiring the fiscal court to furnish the jailer a house. The purpose of KRS 71.020 is to insure the physical presence of the jailer or deputy in the jail building at virtually all times. Here the jail building has been condemned and abandoned. The furnishing of a house to the jailer in this situation will not subserve the purpose of KRS 71.020.