Request By:
Honorable Perry Lewis
District Court Judge, Division II
38th Judicial District
Courthouse Square
Hartford, Kentucky 42347
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in response to your letter raising a question pertaining to the payment of transportation costs for juveniles. You state that it is sometimes necessary to transport juvenile offenders from one county to another in order to detain them in a property facility.
A sheriff and a county judge-executive within your judicial district have requested your assistance in obtaining compensation for the sheriff when it is necessary to transport juveniles to or from the county. They believe the state should pay this expense and you ask the procedure to be followed in submitting an official request for compensation for such expenses.
You cite KRS 208.370 which provides in part as follows in connection with fees allowed in juvenile court proceedings:
". . . The county or state may compensate any officer or person in the amount prescribed by law for the detention or return of any person to the jurisdiction of the court, and funds for this purpose may be appropriated and paid by the fiscal court."
Letters from the Department of Finance indicate that except in felony cases it has not in the past assumed the responsibility for the reimbursement of the transportation costs for juveniles under the fact situation set forth in your letter. While the Department of Finance apparently feels that KRS 64.070 does not apply to the situation with which we are now concerned, it is not certain as to its responsibility pursuant to KRS 208.370 and 208.540.
In Overstreet v. Boyle County Fiscal Court, 264 Ky. 761, 95 S.W.2d 584 (1936), the Court quoted with approval the following rule: "Statutes relating to the fees and compensation of public officers must be strictly construed in favor of the government, and such officers are entitled only to what is clearly given by law." See also KRS 64.410 providing in part that no officer shall demand or receive for his services any other or greater fee than is allowed by law or any fee for services rendered when the law has not fixed a compensation therefor.
KRS 64.070 deals with officers conveying prisoners. While it covers such situations as conveying a prisoner to the penitentiary, conveying a prisoner charged with a felony from one county to another and arresting a person charged with a misdemeanor upon a warrant issued from another county and conveying the person to the county jail of the county from which the warrant issued, it does not cover the transportation of a juvenile in a nonfelony situation from one county to another in order to detain him in a proper facility.
KRS 441.030 deals with the transfer of prisoners to a secure jail in another county if there is no jail in the county or the jail is insecure or there is danger that persons in the jail will be removed from the jail by violence. KRS 441.040 sets forth the manner of transfer and the compensation of officers, including the sheriff. KRS 441.050 concerns the transfer of a prisoner from the county jail to the penitentiary when violence is threatened and the compensation of the officer making the transfer. None of these statutes would seem to apply to the situation you have presented.
KRS 441.500 deals with transporting the accused to and from the jail or the detention facility. Regardless of whether the police, the jailer or the sheriff does the transporting, there is no provision in the statute for a fee for the service of transporting the accused from the jail or the detention facility to the court. Thus, the sheriff cannot charge or collect any fee for rendering this particular service.
KRS 208.540 concerns the mileage and expense allowance to a peace officer who conveys a child from the committing court or from the detention facility of the committing court to an institution or facility operated by the Department for Human Resources. The amounts paid are determined by regulations adopted by the Department of Finance. This statute does not apply to the fact situation you have presented.
KRS 208.370, cited in your letter, and quoted in part earlier in this letter, states in part that the county or state may compensate an officer in the amount prescribed by law for the detention or return of any person to the jurisdiction of the court and funds for such purpose may be appropriated and paid by the fiscal court. Since the statute uses the word "may" rather than "shall," it is discretionary or permissive as opposed to mandatory and thus the fiscal court, in its discretion, may appropriate funds for such purposes. See KRS 446.010 (20) and (29). However, the statute directs that the officer be compensated in the amount prescribed by law and there is no fee provided for the sheriff for rendering the services in question in the statutes we have specifically mentioned or in any other statute of which we are aware.
While there is no specific statutory provision which authorizes a sheriff to receive expenses and a fee for transporting a juvenile from one county to another, we direct your attention to OAG 80-499, copy enclosed, page two, where we said:
"The sheriff may however be given a credit against any excess fees for the actual costs involved in this type of transfer under the doctrine of Funk v. Milliken, Ky., 317 S.W.2d 499 (1958), as he is performing an official function in making these transfers. Also see Wilson v. Ball, Ky., 323 S.W.2d 840 (1959)."
Thus, in conclusion, neither KRS 208.370 nor any other statute requires the Commonwealth to pay a sheriff for transportation expenses incurred in connection with transporting a juvenile in a nonfelony situation from one county to another in order that the juvenile be detained in a proper facility. The Commonwealth also has no authority to pay a sheriff a fee for the rendering of such services. KRS 208.370 is discretionary rather than mandatory in nature. Even if the fiscal court decides to appropriate funds under the statute, it can only pay the sheriff the amount prescribed by law and there is no statute which authorizes the fiscal court to pay the sheriff for such services as you have described in your letter.