Request By:
Mr. Gary M. Smith
Attorney
Executive Department for
Finance and Administration
Capitol Annex Building
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your problem was stated as follows:
"James Knauf, Kenton County Jailer, was a defendant in a civil suit filed in United States District Court by an inmate. See attached copy of summons. A settlement between the plaintiff and Mr. Knauf was reached on March 28, 1978, with Mr. Knauf paying five hundred dollars ($500) from his imprest fund advancement to the plaintiff. He now wishes to reimburse his imprest fund from his 75% account in the state treasury.
"Is this expenditure a 'necessary office expense, ' as set forth in KRS 64.345(2), payable from Mr. Knauf's operating account?"
There is a general principle that a municipal corporation may, in its discretion, indemnify a city officer against liability incurred in the discharge of his official duties. There are two conditions under which this principle operates. One is that the litigation involved is one of governmental interest. Second, it must appear that the officer acted in good faith in the discharge of his duties. See 62 C.J.S., Municipal Corporations, § 535 at p.p. 982-983. From the suit records it does not affirmatively appear that the jailer was negligent in the discharge of his official duties. Thus we presume that the jailer was acting in the bona fide discharge of his duties, free from negligence or other wrong. We further assume from the facts that the state-county had an interest in the suit, since the continued statutory performance of the jailer's duties is a state-county interest. Apparently the jailer was unable, in the performance of his duties, to prevent such a suit.
It is our opinion that under KRS 64.345(2) the jailer may be reimbursed for the $500 expenditure by an order of the fiscal court. It is our view that under the total facts submitted this expenditure was occasioned through the bona fide discharge of the jailer's duties, and thus such expense would constitute a necessary office expense as envisioned by KRS 64.345. Note the residual interest of the county in the jailer's "75% account" under KRS 64.350(1).
"Necessary office expenses," as envisioned by KRS 64.345(2) and § 106, Kentucky Constitution, clearly refer to expenses incident and necessary to the proper conduct of the duties of the office of jailer other than salaries for deputies.
Connors v. Jefferson County Fiscal Court, 277 Ky. 23, 125 S.W.2d 206 (1938). From the suit papers in the Knauf case it appears the litigation arose out of the jailer's performing the duties of his office. We are speaking of expenses reasonable in amount, beneficial to the public, and not predominantly personal to the officer.
Funk v. Milliken, Ky., 317 S.W.2d 499 (1958) 506. Here the public is benefited by the jailer simply carrying out his custodial duties under the statutes. The expense appears reasonable, and the expense is not predominantly personal, since it accrued strictly in the line of his duties. Cf.
Roberts v. City of St. Louis, Mo., 242 S.W.2d 293 (1951), in which the court ruled that the city had no authority to indemnify a city policeman for his legal expenses where the policeman transcends his authority by engaging in a willful and malicious wrongdoing.
In summary, it is our opinion that the Fiscal Court of Kenton County, in its discretion, may, pursuant to KRS 64.345(2), issue an order authorizing the reimbursement of the $500 legal expense to the jailer, to be paid out of his "75% account."
In American Airlines, Inc. v. Louisville and Jefferson C.A.B. (CCA-6) (1959), 269 F.2d 811, the court pointed out that "It is well established in Kentucky, that, assuming municipal authorities have acted within the limits of their constitutional or statutory or charter authority, the court will not ordinarily interfere with the exercise of discretionary powers. . . ."