Request By:
Mr. Fred Greene
Logan County Attorney
P.O. Box 306
Clark Building
Russellville, Kentucky 42276
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
On April 28, 1981, the fiscal court of your county passed a resolution authorizing five deputies for the jailer. The question is whether the jailer may employ a cook, in addition to the five deputies. The answer is "no".
The case of
Funk v. Milliken, Ky., 317 S.W.2d 499 (1958), in connection with KRS 64.530(3), establishes the principle that the number of deputies of the constitutional officer must be set by fiscal court no later than the first Monday in May in the year of the election (here 1981), and during the term such number of deputies cannot be changed.
While Funk v. Milliken, above, mentions KRS 71.060, as relates to the jailer's being entitled to two deputies and appointing additional deputies with approval of the county judge executive, it is now in conflict with the latest amendment of KRS 64.530 (1978, Ch. 384, § 131), which apparently reiterates that the general law shall govern. That 1978 amendment to KRS 64.530 and 71.060 was the Kentucky Statutes Reviser's Bill to correct technical flaws in the statutes.
Thus under KRS 64.530(3), the number of deputies of the county clerk clearly must be set by fiscal court no later than the first Monday in May in the year of the election, and the number cannot be changed during the term.
In view of the conflict between the general statute, KRS 64.530(3), and KRS 71.060, it is our opinion that the later law should govern. See 1978 Acts, Chapter 384, § 131, amending KRS 64.530. See also
Butcher v. Adams, 310 Ky. 205, 220 S.W.2d 398 (1949) 400. The two statutes (KRS 64.530(3) and 71.060) could be harmonized only by ruling that the fiscal court would have to recognize that the jailer is automatically entitled to two deputies, and that under KRS 64.530(3) the fiscal court could authorize additional deputies within the time frame required by that statute.
Cawood v. Coleman, 294 Ky. 858, 172 S.W.2d 548 (1943). The harmonizing of the statutes would promote uniformity in establishing deputy positions for county constitutional officers.
One of the five deputy jailers may be a matron. KRS 71.060(2). In addition, it is our opinion that KRS 64.530(3) and 71.060 provide only for deputies (one of which may be a matron) for the jailer. In strict legal parlance there is no assistant or miscellaneous assistant to the jailer. Thus the jail cook, if he or she is to be paid, must be one of the deputies. Any other arrangement would obfuscate the financial control over jail affairs which the fiscal court has. See
Funk v. Milliken, Ky., 317 S.W.2d 499 (1958); and
Yocum v. Franklin County Fiscal Court, Ky. App., 551 S.W.2d 833 (1977) 834. In Yocum, above, the court cited
Knott County Fiscal Court v. Duke, 157 Ky. 499, 502, 163 S.W. 459, 461 (1914), for the proposition that the jailer of a county has no authority whatever to expend any money for any purpose, intending to make it a charge against the county, without first obtaining the consent and direction of the fiscal court.
The second question relates to a fiscal court order of April 28, 1981, providing that seven deputies are allocated to the county clerk, and six are to be funded beginning January 1, 1982. The question is whether or not the fiscal court must fund the seventh deputy. The answer is "yes".
KRS 64.530 requires the fiscal court to establish the number of deputies for county constitutional officers and set their compensation.
Funk v. Milliken, Ky., 317 S.W.2d 499 (1958). Thus the entire number of deputies will have to be funded. Those deputies may be paid: (1) out of the fees of the clerk's office or (2) out of the county treasury, or (3) from a combination of (1) and (2). Where it is necessary to fund the deputy's salary from the county treasury, proper budgeting is required under KRS Chapter 68.
A third question arises as to the salary to be paid the deputy of the county judge executive. See KRS 67.711. Upon the appointment of a deputy by the county judge executive (fiscal court consent not called for), the fiscal court has the duty to provide a reasonable salary for the deputy, payable out of the county treasury as a properly budgeted item under KRS Chaper 68, based upon his actual work schedule.