Request By:
Mr. Walter Chyle, Jr.
Butler County Attorney
P.O. Box 147
Morgantown, Kentucky 42261
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You request our opinion as to whether or not the office of jailer and the employment as a regular high school bus driver are incompatible.
Actually, the employment as bus driver is not an office.
Howard v. Saylor, 305 Ky. 504, 204 S.W.2d 815 (1947) 817, listing five requisite elements of a public office. Thus KRS 61.080 (incompatible offices) has no application.
The Court of Appeals held in
Reed v. Greene, Ky., 243 S.W.2d 892 (1951) that school bus drivers are public school employees within the meaning of KRS 160.380.
However, we must finally assess this situation in terms of common law incompatibility.
The court wrote in
Hermann v. Lampe, 175 KY. 109, 194 S.W. 122 (1917) 126, that common law incompatibility exists when, from the multiplicity of business in both functions or employments they cannot be executed with care and ability. In other words, incompatibility arises when both employments cannot be performed in the manner required by law. See KRS 71.020, 71.030, 71.040, 71.050, 71.060, 441.010, 441.011, and 441.500(3), concerning the key statutory duties of the county jailer.
The jail operation is a full time function for a jailer and his staff, generally. This is attributed to his statutory responsibilities, as mentioned above, and the standard of care he is held to. "The standard of care owed by a law enforcement officer to a prisoner placed in his care and custody is to keep the prisoner safe and free from harm, to render him medical aid when necessary, and to treat him humanely and refrain from oppressing him." 60 Am.Jur.2d, Penal and Correctional Institutions, § 9, page 814. KRS 441.017 stresses the purpose of a local corrections training program in order to raise the level of competence of jailers and their staffs.
The Court of Appeals, in Ratliff v. Stanley, 224 Ky. 819, 7 S.W.2d 230 (1928) 232, point out that:
The law imposes the duty on a jailer to exercise reasonable and ordinary care and diligence to prevent unlawful injury to a prisoner placed in his custody, but he cannot be charged with negligence in failing to prevent what he could not reasonably anticipate.
See 72 C.J.S., Prisons, § 18, pages 872-875, relating to the jailer's custody and control of prisoners.
CONCLUSION
Being jailer and a school bus driver at the same time involves no statutory incompatibility. It is possible that such dual roles will, in a particular county, present a common law incompatibility, as outlined in Hermann v. Lampe, above. In other words, the jailer may not be able to execute both functions in the manner required by law. However, in view of such variables as the condition and capacity of the jail, the number of prisoners normally incarcerated, the size of the jailer's staff, the amount of the jail budget and county general fund money available for the local jail, and equipment available to the jailer, we find it impractical for us to conclude as a standing premise that the jailer-bus driver roles involve a common law incompatibility. We conclude that it would be for the courts, in an appropriate case, to determine from all the evidence whether or not a common law incompatibility is involved.