Request By:
Mr. David H. Bland
Kentucky Jailers Association
McCowans Ferry Road
Versailles, Kentucky 40383
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your letter deals with the appointment of a jailer's deputies and matrons.
Pursuant to KRS 71.060(1), effective July 1, 1982, (H.B. 440, Section 28), any jailer may appoint not more than two (2) deputies, and with the approval of the fiscal court, may appoint additional deputies at any time during the jailer's term of office. Under KRS 71.060(2), as amended by H.B. 440, any jailer may appoint a matron for the female prisoners. With approval of the fiscal court, the jailer may appoint additional matrons at any time during the jailer's term of office.
You say that the Department of Finance has advised fiscal courts that they are under no obligation to pay either of the two deputies or one matron. They referred to several opinions of this office. The opinions they relied upon were issued prior to the signing of H.B. 440.
Your first question:
Given the fact that the jailer is no longer a fee officer, by what authoritiy can a fiscal court refuse to budget funds for jailers' deputies' salaries?
H.B. 440 has brought about dramatic changes in the operation and funding of county jails.
KRS 441.006 (Section 2, H.B. 440) imposes upon fiscal courts the responsibility for maintaining a jail in the county or contracting with another county or city for the incarceration and care of its prisoners. KRS 441.008 (Section 4, H.B. 440) places the responsibility upon fiscal courts of adopting an operating budget for the jail, involving the expenditure of all state, county and other funds for jail operations. In that budget the responsibility to fund properly the salaries of the jailer and his deputies and matrons is clearly included. See also KRS 441.009 (Section 5, H.B. 440). The "operating budget for the jail" is literally expressed and includes the entire and necessary jail operation. the statute is unambiguous and should be so literally construed.
Barrett v. Stephany, Ky., 510 S.W.2d 524 (1974).
The answer to Question No. 1 is that the fiscal court cannot refuse to budget funds for the salaries of the jailer's necessary deputies and matrons.
Question No. 2:
"If a jailer appointed a deputy or matron and they began working, would they have a justified claim before the wage and hour board if the fiscal court refused to pay their wages?"
Where the fiscal court refused to pay a jailer's deputy or matron their salaries, they would have a justified claim before the Wage and Hour Board. See KRS 337.010(1)(c) (defining wages), KRS 337.020, and KRS 337.060.
Under KRS 337.020 the deputy and matron, who have not been paid, have a right of action against the jailer and fiscal court for the full amount of wages due on each regular pay day.
Instead of utilizing the administrative machinery of the Commissioner of Labor (see KRS 337.310), the affected deputy and matron could go into the local circuit court with a mandamus action, seeking a judgment ordering the fiscal court and county treasurer to get on with paying their salaries pursuant to KRS 337.020.
Young v. Jefferson County Election Commission, 304 Ky. 81, 200 S.W.2d 111 (1947).
KRS 337.385 provides that any employer who pays an employee less than wages to which he is entitled to shall be liable to such employe for the full amount of such wages and for costs and such reasonable attorney's fees as may be allowed by the court.
See also KRS 337.990, relating to criminal penalties for failure to pay wages due.
OAG 82-155, 80-319, and related opinions are modified accordingly under legislative change.