Request By:
Mr. Earl A. Tabor
Breckinridge County Judge/Executive
Courthouse
Hardinsburg, Kentucky 40143
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The Breckinridge County Jailer is in the hospital. He has not resigned and apparently has no intention of doing so. The office is not vacant.
Your question is whether you have any responsibility in this situation.
Since the jailer has not resigned, he retains the responsibility of the county jailer. Under KRS 71.020, he has the custody, rule and charge of the jail in his county and of all persons in the jail. He or his deputies must operate the jail at all times. Under KRS 71.060 the deputies have all the powers of the jailer. See
Mullins v. Commonwealth, 294 Ky. 593, 172 S.W.2d 211 (1943).
You say the county attorney advised the sheriff that it was the sheriff's duty to operate the jail at this time.
KRS 71.090 reads:
"Except as provided in KRS 63.150, if the jailer is legally committed to jail, or if for any cause the office of jailer becomes vacant, the sheriff of the county shall perform all the duties of jailer until the jailer is legally discharged from jail, or until a successor to the jailer is elected or appointed and qualified. If the sheriff cannot or should not act the county judge/executive may so certify, and shall, in writing designate a responsible person to act for the occasion."
Under KRS 63.150, where there is a vacancy in the office of sheriff and the office of jailer, the coroner acts as sheriff and the county clerk takes charge of the jail until such vacancies are filled.
Under the facts you have given us, the jailer has not been committed to jail. Further, the office of jailer is not vacant. Thus KRS 71.090, requiring the sheriff to act as jailer, has no present application.
We assume that apparently the county attorney believes the jailer's office is vacant. If that office is legally vacant, then KRS 71.090 would apply (the sheriff acts as jailer) until you can appoint a person, pursuant to KRS 63.220, to fill out his unexpired term.
However, you and the county attorney differ as to the existence or non-existence of a "vacancy" in the office of jailer. But you are the appointing authority. If you reasonably choose to not take his assessment of the "vacancy" matter, then you and the other members of the fiscal court may authorize the county attorney to file suit in the circuit court, seeking to get a court ruling on the question as to the existence or non-existence of a vacancy in the office of jailer. No vacancy is created in an office until the officer's resignation is accepted.
Tabor v. Webb, 227 Ky. 611, 13 S.W.2d 758 (1929). But you say the jailer has tendered no resignation. As relates to abandonment of an office, the old Court of Appeals held, in
Stacy v. Wagers, Ky., 264 S.W.2d 299 (1954), that abandonment should not be decreed unless there is fairly conclusive evidence of intent to abandon or the inference is inescapable that there was abandonment. The court said that "in order to constitute an abandonment of an office it must be total and the conduct such as to clearly show a complete relinquishment." This rule is laid down for the reason that abandonment is not one of the regular and recognized ways of vacating an office.
Thus, as appointing officer, if you are not sure that there is a vacancy or abandonment of the office of jailer, you should ask the fiscal court in a proper meeting to direct the county attorney to file a suit in your circuit court seeking a ruling as to whether there is or is not a vacancy or abandonment of that office.