Request By:
Mr. A. V. Conway, II
Ohio County Attorney
Main Street
P.O. Box 66
Beaver Dam, Kentucky 42320
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You seek our opinion concerning problems arising out of the operation of the county jail.
Question No. 1:
"Does the district court on the circuit court have responsibility for the prosecution of the indictments against the jailer and the deputy jailer? "
If you are speaking of the offense of misteasance or malfeasance in office, or wilful neglect in the discharge of official duties, as provided in KRS 61.170, such a charge is by way of an indictment. In such case the matter is one for the grand jury of the circuit court. Likewise, any indictment framed around some penal code offense would come under the jurisdiction of circuit court. See KRS 29A.060 and 29A.210. The grand jury is an arm of the circuit court only. See OAG 80-152, of related interest, copy enclosed.
Question No. 2:
"Does the grand jury have any authority to recommend the release of the deputy jailer, and if so, if the jailer refuses to release the deputy jailer, does the fiscal court or any other county official other than the jailer have any authority to force the release of the deputy jailer as requested by the grand jury report?"
The function of a grand jury is to inquire into the commission of crime, and to find indictments against supposed offenders.
Turk v. Martin, 232 Ky. 479, 23 S.W.2d 937 (1930); and RCr 5.02. See also
Matthews v. Pound, Ky., 403 S.W.2d 7 (1966), as to the grand jury's narrow function. Of related interest is OAG 80-97, copy enclosed.
The grand jury has no authority to recommend any administrative action on the part of the jailer, such as firing or releasing the deputy jailer. If they have reason to believe that the deputy has committed a crime, then they can indict him. Thus the grand jury can indict or not indict the deputy, as the case may be, but they have no authority to give administrative recommendations or advice as to what to do with the deputy administratively.
The deputy is subject to being discharged by the jailer, as an administrative matter, not by the fiscal court. See KRS 71.060. They [deputies] may be removed at any time by the jailer.
Question No. 3:
"What responsibility do the members of the fiscal court have with respect to the operation of the jail, other than the adoption of rules as required by KRS 441.010?"
The fiscal court is responsible for the maintenance of the jail, as a county building, and for establishing rules, under KRS 441.010, for the internal management of the jail. Where the fiscal court fails to prescribe such rules, the management of the jail cannot be brought under proper supervision through the county judge/executive's monthly inspection of the jail. The jailer is the immediate custodian of the jail and its prisoners [see KRS 71.020 and 71.040]; but the jailer's management of the jail is designed to be regulated and supervised through the regulations of the fiscal court and the monthly inspections of the jail by the county judge/executive. Otherwise, the operation of the jail is the responsibility of the jailer.
Question No. 4:
"If the fiscal court has failed to adopt rules as set out in KRS 441.010 what, if any, criminal sanctions would be available to the grand jury against individual members of the fiscal court?"
The failure of fiscal court to adopt rules for the jail operation under KRS 441.010 could possibly subject the members of that body to an indictment for wilful neglect in the discharge of their duties, as prescribed in KRS 61.170.
Question No. 5:
"After rules have been promulgated and assuming that the inspection of the county judge/executive notes willful violation of the rules, who has the authority to cite the jailer or deputy jailers for such violation? In answering the question, please include any other officials who have authority for citing the jailer or deputy jailers for such willful violation. "
Since the county judge/executive conducts the inspections of the jail, he would be primarily responsible for making a complaint against the jailer and his deputies for violations of the rules. The other members of the fiscal court would have that responsibility where the county judge/executive fails to seek appropriate enforcement action.
Question No. 6:
"Lastly, please indicate what authority, if any, the county attorney has over the operation of the county jail? "
The county attorney has no authority over the administrative operation of the county jail. Where the county judge/executive or other members of fiscal court come to him with a complaint involving alleged violations of the jail rules, then he as prosecutor must handle the complaint as he is required to do with other alleged violations of the criminal law coming to him as the prosecutor before the district court.
At the instance of the fiscal court, he can file a mandamus or injunctive action in circuit court, seeking an order requiring the jailer to carry out his legal duties.