Request By:
Mr. John Woestendiek
City Editor
The Lexington Leader
Main & Midland
Lexington, Kentucky 40507
Opinion
Opinion By: Steven L. Beshear, Attorney General
On behalf of the Lexington Leader, you request a formal opinion of this office as to whether or not the jailer can run a commissary for profit.
In your factual statement you say that the Metropolitan Detention Center Director Harold Buchignani is running a commissary in that jail for a profit. You indicate that he is selling various items, such as toothpaste, deodorant, cigarettes and food products, to the inmates, the sales of such nonessential items as cigarettes and food products being on a profit basis to himself. Your letter reads in part that Mr. Buchignani told the Leader that his gross sales for 1979 were $69,700, and that his net profit was $9,500. You have also stated that the Director has been running his commissary for a profit to himself since 1972, when he became jailer.
Question No. 1:
"Can a jailer run a commissary for profit?"
Mr. Buchignani is actually the jailer of Fayette County, a constitutional officer, elected by the people of Fayette County and is responsible for the detention and security of all prisoners assigned to his custody. See Section 11.07 of the Lexington-Fayette County Urban County Government Charter and KRS 67A.060. In filling that office he has the custody and management of the jail. KRS 71.020 and 71.040. The jail or "detention center" is public property; and he is the public officer in charge of that public property. Thus the commissary in question is a part of the operations of the jail in the jail building.
A public office is not private property, and it is not held by contract or grant, but only by the vote of the people, as an elective office. In 67 C.J.S., Officers, § 11, pages 245-246, this is written about a public office:
". . . public offices are not deemed created for the benefit of the individuals who for the time being occupy them, or for the profit, honor, or private interest of any one man, family, or class of men, but they are created for the benefit, and in the interest, of the people, and for the purpose of carrying on the operations of government. They are considered as public trusts or agencies." (Emphasis added).
Elsewhere in 67 C.J.S., Officers, § 204, p. 666, we find this doctrine:
" A public office is a public trust, as considered in § 11, and the holder thereof may not use it directly or indirectly for a personal profit, or to further his own interest, since it is the policy of law to keep an official so far from temptation as to insure his unselfish devotion to the public interest." (Emphasis added).
The protective principle of public policy enunciated in Corpus Juris Secundum above was adopted by Kentucky's High Court in the winter term of 1847-8, in the landmark case of Miller v. Porter, 47 Ky. (B. Monroe, Vol. 8) 282. There the court ruled that:
". . . . the jail is public property provided at the public expense for public uses, which are defined by law, and that the jailer is the officer intrusted by law with the immediate possession and control of this public property for those public uses for which it was erected, and not to be used at his discretion for his own private convenience or emolument " (Emphasis added).
As the court pointed out in Miller v. Porter, if the jail could at the discretion of the jailer be converted to private uses, then it would be difficult to fix any limit on either the nature or the extent of the uses of the public property. The court said: "The motive of private gain will always be an inducement with the jailer to appropriate the jail to the accommodation of those who might desire its use for their private convenience. "
Of similar import is the case of Thompson v. Probert, 65 Ky. (Bush, Vol. 2) 144 (1867), in which the jailer had allowed the operation of a saddler's shop in the jail.
This office, in the prior opinions of OAG 64-309 and 64-754, copies enclosed, took the formal view that a jailer in Kentucky cannot run a jail commissary on a profit basis to himself.
The simple answer to question No. 1 is that the jailer cannot lawfully run a jail commissary on the basis of a profit to himself.
The miscellaneous letter of September 3, 1976, which you enclosed and which stated that the jailer could enjoy a profit, was not an official opinion of the Attorney General. We note that the author of that correspondence has acknowledged this fact to the news media. In our opinion, the conclusions reached in that correspondence are incorrect under the above authorities.
We have carefully "Shepardized" the old Kentucky cases listed above, and we find that they are still the law in Kentucky on this point (See Shepard's Kentucky Citations). The ancient position of public policy assumed by our appellate court has never been modified or retreated from. We know of no valid reason why it should. The reasons underlying the rule are rather obvious, as set out in Miller v. Porter, above. Great principles of public policy and morality in public office, as established rules, have not changed over decades or a century. The court in
Buchanan v. Watson, Ky., 290 S.W.2d 40 (1956) 44, wrote this:
"The doctrine of stare decisis requires that we do not depart from the established rule."
We see no objection in running a commissary for the sole benefit of the prisoners, where the jailer enjoys no profit. It could be said that the commissary program could perhaps promote better behavior of the prisoners and thus could promote the security aspect of the jail. Where no public funds are involved in the procurement of items for the commissary, the bidding principle would not apply.
Question No. 2:
"Is a jailer obligated to keep records on his commissary, whether he runs it for profit or not?"
Since the jailer is carrying on the commissary operation, though the operation is not treated by statute, it is our opinion that he should maintain commissary records. If he does not maintain such records, then there is no adequate basis for determining whether he is operating at a profit to himself or not. Since this is a public office, the public is entitled to know, one way or the other. Especially is this true, since he has no statutory mandate to run the commissary. Such records, for reasons given, take on the nature of public records. There is no logical way to disassociate the commissary activity of this public officer from his functions as jailer. Such records would be a part of his total official records as concerns any auditing of his books. See KRS 43.050 and 43.070 (audits of county officers). His accounts are subject to an audit by the State Auditor or an employed certified public accountant.
Finally you ask whether the jailer can supplement his state salary by contracting out services to the local government and getting additional money for that?
The jailer is held to the maximum rubber dollar level each year under KRS 64.527 and Sect. 246 of the Kentucky Constitution. See
Commonwealth v. Hesch, Ky., 395 S.W.2d 362 (1965). For example, the maximum compensation for Kentucky jailers for 1980 is $23,184. This maximum would apply to his salary and these special governmental payments, considered in the aggregate. The maximum applies, whether such services are rendered in one position or more than one.
Coleman v. Hurst, 226 Ky. 501, 11 S.W.2d 133 (1928) 137. In other words, if he is getting additional money from urban county government as compensation for any statutory duties, such extra money would violate Sect. 246 of the Constitution and KRS 64.527, since he is already receiving the maximum annual salary rate, i.e., $23,184 for 1980.
It has been contended that since Mr. Buchignani executed an agreement with the Lexington-Fayette Urban County Government to perform a "booking-of-prisoners" function for a stipulated salary, and since, as the argument goes, such function is not a part of the normal statutory function of jailer, the extra compensation, even though the jailer is already at the maximum in salary under the rubber dollar law, is valid.
First, the case of Coleman v. Hurst, above, is controlling. At page 137, we find this controlling principle:
"Section 246 of the Constitution contains the provision that no public officer other than the Governor shall receive more than $5,000 (prior to 1949 amendment) per annum as compensation for official services. It is not allowable to pay exceeding $5,000 annually to the same person for public services, whether such services are rendered in one position or more than one. If it were allowable to pay compensation up to the constitutional limit for each public position held, the provision of the Constitution would mean nothing. (Emphasis added).
Of course, as we mentioned earlier, the monetary limits on constitutional officers' compensation under Section 246 of the Constitution has been adjusted upward under the Consumer Price Index doctrine adopted by the courts. But a careful "Shepardizing" of the Kentucky cases reflects that our high courts have not departed one iota from the above stated principle of overarching public salary limitation, regardless of the number of public functions and public sources of salary. And it must be kept in mind that the constitutional restriction relates strictly to public funds or public moneys.
Alvey v. Brigham, 286 Ky. 610, 150 S.W.2d 935 (1941) 940.
The principle of Coleman v. Hurst, above, was reiterated in the later cases of
Funk v. Milliken, Ky., 317 S.W.2d 499 (1958) 504; and
Matthews v. Allen, Ky., 360 S.W.2d 135 (1962).
In Coleman v. Hurst, above, added compensation "within constitutional limits" was allowed for the imposition of added duties. But the court limited that concept to this holding at page 137:
"Therefore, in allowing compensation for public services, the aggregate of the amount allowed for services to the same person holding different public offices must be limited to the sum prescribed in Section 246 of the Constitution. " (Emphasis added).
The view that this extra "booking" function can be salaried with public money over and above the maximum rubber dollar salary now enjoyed by the jailer relies upon the case of
Slayton v. Rogers, 128 Ky. 106, 107 S.W. 696 (1908). There the court had before it a question as to whether a county attorney, who had been allowed $875 as extra compensation for services rendered in federal court, was entitled to such compensation in addition to the compensation for serving as county attorney. The court cited the rule that where the extra services were outside the county attorney's statutory functions, he could receive the extra compensation, and would not violate Section 161 of the Constitution, which prohibits a "change" in compensation during the term. But that case in no way held that the aggregate of his two sources of income was not subject to the overall salary limitations of Section 246 of the Constitution.
The view that the jailer can legally enjoy this extra compensation for the "booking" operation, relies upon
Land v. Lewis, Ky., 186 S.W.2d 803 (1945) 806. But that case, involving an extra duty for the county clerk not required by statute, merely reiterated the holding in Slayton v. Rogers, above, and as relates only to Section 161, Kentucky Constitution. However, there is nothing in Land v. Lewis which can be reasonably construed as overturning the court doctrine that the aggregate of public money paid to a constitutional officer cannot exceed the limits set out in Section 246, Constitution. The court merely concentrated on the point that the clerk's extra function was outside his statutory duties as clerk.
Dennis v. Rich, Ky., 434 S.W.2d 632 (1968) 636, is also relied upon in the argument that a constitutional officer may be paid extra public money for a function outside of his statutory duties. However, a careful examination of that case reveals that it merely repeats the earlier case holdings, mentioned above, that such extra pay does not contravene Section 161, of the Constitution (prohibiting a change in compensation during term). The point underlying the "Section 161" cases is that extra public compensation may be paid to the officer during term where the compensation obviously had never been set before. But here again, the latter case in no way militates against the fundamental holding in Coleman v. Hurst, above.
Thus, the compensation for the added "booking" services, even though arguendo it does not involve the jailer's statutory function, is subject to the "aggregate doctrine" of Coleman v. Hurst, in terms of the total compensation allowed him. Since the jailer is already being paid the maximum salary for his jailer function, the extra compensation is clearly unconstitutional as being in violation of Section 246 of the Constitution, and such extra money is recoverable to the public treasury.
SUMMARY
In addressing these questions, we do not intend to imply that the Fayette County Jailer has intentionally violated the law. Mr. Buchignani has stated that he relied upon what we believe to be the incorrect advice contained in the September 3, 1976, letter. However, regardless of that fact, it is our opinion that he is entitled to neither the profits from the operation of the commissary nor the excess compensation discussed above. Therefore, Mr. Buchignani should render an accounting to the Lexington-Fayette Urban County Government and pay over to it all profits realized from the operation of the commissary and all excess compensation received over and above his constitutional maximum salary.
In addition, this entire area relating to jailers appears to be one which the next General Assembly might wish to address, and accordingly we have sent a copy of this letter to the Legislative Research Commission.