Request By:
Mr. Raymond E. Lape, Jr.
Davies, Lape & Quill
331 York Street
Newport, Kentucky 41071
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Elizabeth E. Blackford, Assistant Attorney General
You have written to ask whether a sheriff may collect the $6 court attendance fee, which is to be paid to the jailer on those days the jailer transports prisoners to the court, when the jailer is physically unable to attend court and the sheriff has assumed the duty of transporting the prisoner to the court. Conversely, you have asked whether the jailer is entitled to collect court attendance fees on those days when the sheriff transports prisoners to the court. Finally, you have asked what constitutes a proper showing of need on the part of the jailer such that the sheriff shall or may assume the jailer's transportation duties.
As you know, this office is of the opinion that the sheriff shall assume the jailer's duty to transport prisoners to the court upon a proper showing of need by the jailer. What constitutes a proper showing of need is entirely dependent upon the facts. The classic showing of need would occur where the jailer, and his deputies, due to physical illness or official duties find it impossible to transport prisoners and attend court. A lesser showing of need on the part of the jailer would suffice where the sheriff, and his deputies, are relatively unencumbered. In those situations severe inconvenience, as opposed to impossibility, would constitute a sufficient showing of need. But, in those situations where it is equally inconvenient for the sheriff and the jailer to transport prisoners, the duty shall remain with the jailer since he bears the primary responsibility therefore. Thus, the performance of this duty should be, to some extent a cooperative effort on the part of the sheriff and the jailer, even though the primary duty rests on the jailer.
KRS 64.090 syas:
"The sheriff may charge for the following services the following fees:
Performing the duties of the jailer, the same fees and allowances that are prescribed for jailers.
KRS 64.150 says:
"The jailer shall be paid . . . the following fees for the following services: attending district or circuit court, perday (jailer shall be paid the fee for eachday a prisoner is transported to thecourt$6.00
Under the fee system the officer's right to collect a fee arises only upon performance of the commensurate duty. The fee schedules for the sheriff and the jailer recognize the fact that there are situations in which it will be necessary for one officer to carry out duties which are typically the responsibility of the other. In those situations, it is the one who actually performs the service, rather than the one who has the primary duty for performing the service, who is entitled to collect the fee. This is just such a situation.
The language of KRS 64.150 makes it clear that a jailer is entitled to the $6.00 court attendance fee only on those days when a prisoner is transported to the court. The statute implicitly contemplates that the jailer will in fact perform the service of transporting the prisoner. Thus, if the jailer in fact transports a prisoner to the court, he is entitled to the court attendance fee. But, where the sheriff rather than the jailer transports the prisoner, the jailer has performed no service. Consequently, the jailer is not entitled to the fee.
KRS 64.090 says the sheriff shall be paid the jailer's fee for performing the duties of the jailer. Therefore, the sheriff is entitled to collect the jailer's court attendance fee on those days that he performs the jailer's duty of transporting a prisoner to the court.
In summary, the sheriff and the jailer are to engage in a cooperative effort regarding the duty of transporting prisoners to the court, though the primary duty always remains with the jailer, and the one who actually performs the service is the one who is entitled to collect the fee therefore.