Request By:
George W. Wilson, Secretary
Department of Corrections
State Office Building
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; Martin Glazer, Assistant Attorney General
You seek a formal opinion of this office as to whether prisoners working in a private production center (within a prison) may be paid "prevailing wages," whether any statutes forbid such payment to inmates employed by a private company or by their silence authorize such payment.
Your request is precipitated by the Department of Correction's application to LEAA for a certificate waiver which would provide it a partial exemption from federal prohibition on the sale of inmate-made goods through interstate commerce. One of the LEAA preconditions is the requirement of legal authority authorizing payment of prevailing wages to inmates employed by a private company.
While your inquiry has zeroed in on the authority to pay prevailing wages, we were concerned in our research as to other correlated questions, not asked, such as, can a prisoner manufacture private goods for a private employer and where can they be manufactured?
KRS 365.240(1) previously forbade the sale of convictmade goods on the open market, except to governmental agencies. However, this statute was repealed in 1980.
Further, KRS 439.600(4) authorizes prisoners to do work at paid employment in the community on a voluntary basis, returning to the institution at night. This section, although still on the books, was held unconstitutional in Commonwealth ex rel Hancock v. Holmes, Ky., 509 S.W.2d 258 (1974), in violation of Kentucky Constitution Section 253, which forbids the employment of prisoners outside the institution except on public works.
However, your contemplated proposal is the employment of prisoners on prison grounds for a contracting private company for "prevailing wages."
Prevailing wages are required to be paid persons working in public construction for public authorities on public works (as defined in KRS 337.010(3)(a), (d), and (e). While the Department of Corrections is a public authority and the work is under contract, the manufacture of products in a prison industry would not be "public works" or public construction.
Therefore, the prevailing wage statutes of KRS Chapter 337, particularly 337.505 - 337.550, do not apply to these proposed projects.
KRS 439.640 authorizes the Commissioner of Corrections to permit an inmate (during the last 90 days of confinement) to work in a vocational training program in the community on a voluntary basis. "The inmate shall be eligible to receive compensation while participating. . . ." The amount is not specified.
Also, KRS 196.070(2) gives the Commissioner of Corrections the authority to "supervise the employment of prisoners who have not been paroled. . . ."
KRS 196.110 authorizes the Bureau (now Department) of Corrections to:
"(2) Encourage the employment of the inmates of the institutions under its control in such ways as will contribute to their physical, mental and moral improvement and to meeting the cost of their maintenance. The bureau may utilize the product of inmate labor in the upkeep or maintenance of the respective institutions or for other departments of the state government, and may transfer from one institution to another, or otherwise dispose of, any surplus products produced."
We cannot think of any more direct method of carrying out such mandate than by the employment of such inmates at such wages as will help in the cost of their upkeep and contribute to their well-being. The payment of reasonable "going" wages paid for similar services to persons not prisoners will help achieve that mandate.
KRS 197.120 authorizes the bureau (now department) to enter into contracts with any other state agency for the use and employment of prisoners:
". . . . The contracts shall specifically set forth the compensation to be paid to the bureau for the use and employment of the prisoners, for the payment of the expenses of transporting, guarding, housing, disciplining, and maintaining the prisoners while so employed and the amount to be paid shall be certified by the contracting parties to the department of finance at the end of each month and shall be charged to the appropriation of the agency liable for the payment thereof and credited to the budget of the bureau to be disbursed and expended as it directs. Any such contract may provide for a fixed per diem compensation to be paid to the bureau for each day's work performed by the prisoner and the bureau shall pay, out of the per diem compensation, the expenses of transporting, guarding, disciplining, housing and maintaining prisoners as may be provided in the contracts."
Also, KRS 197.110(4) provides:
Also, KRS 197.110(4) provides:
"The bureau shall make such rules and regulations as it deems necessary and proper in relation to:
". . . .
"(4) The payment of money to such prisoners and their dependents for work performed, including the amount to be paid and the manner of the payment and distribution thereof; . . ."
Thus, in reviewing all these statutes and constitutional sections, we do not see any legal prohibition against the Department of Corrections entering into a contract with an employer manufacturing products on prison grounds being required to pay those prisoners at specified prevailing rates of pay. We assume that the monies so paid will be earmarked for later distribution to released prisoners after proper deductions.