Request By:
Mr. W. C. Flannery
Rowan County Judge-Executive
Courthouse
Morehead, Kentucky 40351
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter asking whether the county has the authority to charge the city of Morehead for the incarceration of "city prisoners" in the county jail. The fiscal court has voted to charge the city $5.00 a day per prisoner to help with the expenses encountered in maintaining the county jail. Anyone arrested within the city limits is to be considered a "city prisoner. " You further ask whether the county can refuse to accept city prisoners if the city does not agree to pay the fee the county is attempting to impose.
KRS 64.150, dealing with jailers' fees, provides in part that jailers shall be paid $6.75 per day for keeping and dieting prisoners in jail when confined for an offense or contempt. That statute further states that the unit of government whose law a prisoner is charged with or convicted of violating shall be responsible for paying the applicable fees to the jailer. KRS 64.150 controls in regard to dieting fees and a county ordinance providing some other dieting fee amount would be illegal. See OAG 79-588, copy enclosed.
Apparently the $5.00 a day per prisoner fee the county is attempting to impose upon "city prisoners" is in addition to the dieting fee authorized by KRS 64.150 as it relates to assisting the county in the maintenance of the county jail. The fiscal court in each county, however, has the responsibility for maintaining a county jail. This includes building a new one when necessary, repairing or reconstructing an existing one when necessary or sharing in the maintenance cost of a county jail in another county. See KRS 67.080 and 67.083(3)(e) and OAG 79-288, copy enclosed.
In OAG 79-588, we dealt with a situation where a county, which had recently constructed a new jail, attempted to impose a fee of $10.00 per day per prisoner, applicable to prisoners from other counties, which was to be charged against the sending county. At page two of the opinion we said in part as follows:
"When considering the responsibility of each county, through its fiscal court, to provide for jail or detention facilities [see KRS 67.080 and 67.083(3)(e)], it is our opinion that the Boyle Fiscal Court could, by ordinance, establish a reasonable charge per day for furnishing the jail facilities to out-of-county prisoners, not as a dieting fee but as a reasonable charge imposed upon the neighboring using counties under the theory of their sharing in the capital cost of constructing such facility and the cost of utilities. * * * If a particular county does not provide a jail, or adequate jail, it is merely logical reasoning that such county should share the cost of a county jail with that county which actually furnishes the jail to the former's prisoners. "
In the situation you have presented, however, we are not dealing with the transfer of prisoners from one county jail to another, but with the confinement of persons in the county jail who have been charged with or convicted of violating municipal ordinances (city prisoners) . Persons arrested within the city but charged with a violation of state law would not be city prisoners even though your ordinance or resolution apparently labels them as such.
While each county, through its fiscal court, has the responsibility of maintaining a county jail, the city of Morehead does not have the responsibility of maintaining a city jail or assisting in the maintenance of a county jail. Not only does the city not have the responsibility of maintaining a jail, but since the advent of the new judicial system on January 2, 1978, this office has expressed doubt as to the legality of the existence of city jails. See OAG's 79-367 and 79-188, copies enclosed. Thus, the maintenance of the county jail is the county's responsibility.
Finally, we direct your attention to KRS 441.020, an old statute dealing with the use of the county jail, which has not been repealed:
"The United States may use the jail of any county, and any city may use the jail of the county in which the city is located, by paying the jailer the fees allowed by KRS 64.150 for the type of services rendered. Any jailer shall receive and confine in jail, until lawfully discharged, persons committed under the laws of the United States or for a violation of the ordinances of any city within the county."
Pursuant to the above-quoted statute the city may use the county jail and the only qualification attached is that the city pay the county jailer the fees allowed under KRS 64.150. See OAG 76-536, copy enclosed, where we said that a county jailer must accept a city prisoner, provided there is sufficient space in the jail, and provided the dieting fees are paid as required by KRS 64.150.
In conclusion, it is our opinion that the county, through its fiscal court, cannot require a city to pay a jail maintenance fee to the county, which is in addition to the dieting fee allowed the county jailer under KRS 64.150, in connection with the confinement in the county jail of those persons who have been charged with or convicted of violating a city ordinance. Maintenance of the county jail is a required county function and persons charged with or convicted of violations of city ordinances may be confined in the county jail so long as the jailer's fees under KRS 64.150 are paid.