Request By:
Honorable Donnie McWhorter
Clinton County Judge/Executive
Albany, Kentucky 42602
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter raising questions concerning county government, the first group of which ask:
"Please advise me of the responsibility of County Judge Executive concerning the County Jail; of what authority a County Judge Executive has over the prisoners and if he or the District Judge has the authority to release prisoners from the County Jail for work detail. Also, can the County Judge Executive prepare an Executive Order to release county prisoners from jail? "
While the county jailer has the custody of the jail in his county and of all persons lawfully placed in the county jail (KRS 71.020), the internal management of the jail is vested in the county governing body (KRS 441.010). The latter statute provides that the county governing body shall prescribe rules for the government and cleanliness of the county jail and the comfort and treatment of prisoners. The county judge/executive is required to inspect the jail at least once each month.
In Henry v. Wilson, 249 Ky. 589, 61 S.W.2d 305 (1933), the Court said that the statute which now appears as KRS 441.010 pertains only to the internal management of the jail. While the county governing body can adopt rules concerning the "inside" management of the jail, the jail is not to be operated jointly by the county jailer and the county governing body. The county governing body must remain within the intended boundaries of its authority so the jailer can exercise his responsibilities and authority pursuant to KRS 71.020, 71.030 and 71.040.
In connection with the release of prisoners for work details, see KRS 431.140 and 441.120 concerning prisoners sentenced to hard labor by a court judgment. Such prisoners sentenced to hard labor shall, if there is no workhouse, be put to work upon some public work or road of the county. If the judgment does not reflect the hard labor provision, the prisoners cannot be so worked. If hard labor is authorized by the judgment, the working conditions and security must be determined by the county governing board pursuant to KRS 441.140. See OAG 79-9, copy enclosed. If you are referring to the release of persons sentenced to jail for misdemeanors and their privilege of leaving the jail during necessary and regular hours for such purposes as working at their employment, see KRS 439.179. The sentencing court grants such privileges and these matters are beyond the scope of the power and authority of the county judge/executive.
As to the release of prisoners from the county jail by the county judge/executive, perhaps you are referring to KRS 439.175 and 439.177 which formerly provided that the county judge had the power to grant parole. KRS 439.175 was repealed effective January 2, 1978, and KRS 439.177 presently vests the parole function in misdemeanor cases solely with the district judge of the sentencing court. The county judge/executive now has no authority to grant parole privileges to misdemeanants under KRS 439.177 but this office has in previous opinions concluded that the statute is unconstitutional. See OAG's 78-281 and 78-150, copies enclosed.
Your next question asks:
"If a motion is made by the fiscal court regarding personnel hiring with a salary set at $5,000.00 (for example), and the vote results in a tie, does the County Judge Executive have the authority to vote breaking the tie? "
First of all, the county judge/executive has the right and duty to vote on all matters or questions coming before the fiscal court. As a member of the fiscal court, he has all the powers of a member, including the right to vote. See OAG 78-52, copy enclosed.
Pursuant to KRS 67.040(3), the county judge/executive breaks a tie where the selection of any officer or employe is involved. That provision, however, does not limit the county judge/executive's right to vote as a regular, full member of the fiscal court on all matters properly before the court. The tie vote provision, KRS 67.040(3), presupposes that the county judge/executive has voted on some officer or employe, along with other members of the fiscal court, and a tie vote has resulted. Where a tie vote has resulted, and the deadlock continues for fifteen days or longer, the county judge/executive shall cause to be entered upon the minutes of the fiscal court an order reciting the facts as to the deadlock, and the question upon which it has occurred and exists, and then the county judge/executive shall make such appointment. See OAG 78-52, at page two as well as OAG 78-164, copy enclosed.
Your last question is as follows:
"When a prepared budget is submitted to the fiscal court for approval, can the fiscal court delete any appropriation made for personnel salary? "
The statutes dealing with the county budget are set forth in KRS 68.210 et seq. KRS 68.240(6) provides that immediately upon approving a proposed budget for the county, the county budget commission shall forward a copy of the proposed budget to the fiscal court. The fiscal court shall comment upon the proposed budget, and the budget commission shall amend the proposed budget according to the desires of the fiscal court before it is sent to the state local finance officer according to KRS 68.250.
KRS 68.260 as amended, effective January 1, 1979, provides in subsection (1) that the proposed county budget adopted by the county budget commission, tentatively approved by the fiscal court and approved by the state local finance officer as to form and classification, shall be submitted to the fiscal court for adoption not later than July 1 of each year or within ten days after receipt of the certified assessment from the Department of Revenue (KRS 133.180), whichever shall be later. Subsection (3) of KRS 68.260 states:
"If the fiscal court rejects any part of the proposed budget, it shall make the changes in the nature and amount of funds a majority of the court considers desirable; but it has no power to make any change in the form or classification of the budget units or subdivisions of units."
Thus, pursuant to the above-mentioned statutory provisions, the fiscal court may make changes in the budget in the nature and amount of funds expended, within the form or classification of the budget units previously established. See OAG 74-214, copy enclosed, at page four.