Request By:
Mr. Ed Huck
Campbell County Jailer
345 Columbia Street
Newport, Kentucky 41071
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You have in your budget $10,000 for legal services or attorney fees. You want to know who controls this money when it is needed by the jailer for his legal defense in civil rights suits in the federal district court.
There is a basis for reimbursing an officer for monetary loss suffered as a result of having to pay litigational fees. However, in order for a fiscal court to reimburse a local county officer for legal expenses, it must appear that the officer was acting in good faith in the discharge of his official duties (and did not engage in a willful and malicious wrongdoing), and that the litigation involved the county's interest. By the latter, we mean that the county in which the officer serves must have a legal, equitable or official interest in the subject of the action. See Roberts v. City of St. Louis, Mo., 242 S.W.2d 293 (1951); and 62 C.J.S., Municipal Corporation § 535, at p.p. 982-983.
The proper supervision of a county jail concerns the security of the jail, the custodial duties of the jailer, as well as the general safety of the county's inhabitants. See specific fiscal court powers in KRS 67.083(3)(e) and (p) relating to the provision for effective jail facilities. See also Pell v. Procunier, 417 U.S. 817, 41 L. Ed. 2d 495, 94 S. Ct. 2800 (1974), in which the Supreme Court observed that lawful incarceration brings about the necessary withdrawl or limitation of many privileges and rights, a restriction justified by the considerations underlying our penal and correctional systems.
Where litigation is really a personal action, i.e., where an officer transcends his authority by engaging in willful and malicious wrong, the county's authority to intervene by way of paying legal fees and costs after the litigation has come to an end would not exist, even though the county may have an interest in the subject of the action.
Even where the litigation meets the two tests (1) good faith of jailer and (2) a legitimate county interest is involved), it is necessary that such potential reimbursement expense money be established as a part of the county budget pursuant to KRS Chapter 68.
It is true that KRS 441.008(2) permits the county treasurer to disburse "jail operating funds" at the direction of the jailer. However, if the jailer is to be reimbursed for certain litigational expenses, as outlined above, the money must be budgeted in the county budget proper, but not as a part of the "operating budget for the jail. "
CONCLUSION
(1) The budgeting for reimbursement of the jailer for litigational expenses must relate to the county budget proper, but not as relates to the "operating budget for the jail. " There is simply no statute authorizing it to be a part of a "jail budget. "
(2) The fiscal court, where such reimbursement money is properly budgeted in the county budget, proper, may, in its sound judgment, effect such reimbursement where the litigation meets the two tests specifically mentioned above.