Request By:
Mr. Jim Nickell
Rowan County Judge/Executive
Courthouse
Morehead, Kentucky 40351
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Recently the Department of Labor (Kentucky) audited your county jail. After going through the jail records, the Department of Labor directed the county to pay the jail matron in excess of $15,000 in overtime pay since 1979.
Question:
"(1) Is the jail matron an employee of the jailer or the county?"
First, we must examine the relationship between the "matron" and "deputy jailers. " Subsection (1) of KRS 71.060 deals with the appointment of deputy jailers. Subsection (2) of that statute provides in part that any jailer may appoint a respectable woman to care for and have supervision over the female prisoners in jail. Concerning KRS 441.230 (repealed in Acts 1982, Ch. 385, § 50, eff. July 1, 1982), which dealt with matrons for a county jail, the old Court of Appeals, in Connors v. Jefferson County Fiscal Court, 277 Ky. 23, 125 S.W.2d 206 (1939), held that county jail matrons should be treated as "deputies" within the meaning of § 106, Kentucky Constitution. The court reasoned that the matrons performed practically every duty required of the jailer in the handling of female prisoners. Thus we can say with assurance that a matron is in reality a female deputy jailer.
The elected jailer has the immediate responsibility for managing the county jail. He has the custody, rule and charge of the jail. KRS 71.020. He is responsible for receiving and keeping in the jail all persons lawfully committed thereto, until they are lawfully discharged. KRS 71.040.
The jailer appoints the specific deputies and matron; and they may be removed by him at any time. The jailer is liable on his bond for the conduct of his deputies. KRS 71.060. The deputies shall have all the powers and be subject to the same penalties as the jailers. " (Emphasis added.) KRS 71.060(1). The matron has supervision over the female prisoners in the jail, subject to the orders of the jailer. KRS 71.060(2).
It is our opinion that the jail matron, as a female deputy, is a "public officer" directly and immediately responsible to the jailer. The case of Howard v. Saylor, 305 Ky. 504, 204 S.W.2d 815 (1947) 817, outlines five requisites of a "public office" :
"(1) It must be created by the Constitution or by the Legislature or created by a or bu the Legislature or created by a municipality or other body through authority conferred by the Legislature; (2) it must possess a delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public; (3) the powers conferred, and the duties to be discharged, must be defined, directly or impliedly, by the Legislature or through legislative authority; (4) the duties must be performed independently and without control of a superior power, other than the law, unless they be those of an inferior or subordinate office, created or authorized by the Legislature, and by it placed under the general control of a superior officer or body; (5) it must have some permanency and continuity, and not be only temporary or occasional."
A deputy jailer and a matron both meet the five element test of a "public office, " above set out. The county jailer and his deputies are also "peace officers" under KRS 446.010. See also 63 Am. Jur. 2d, Public Officers and Employees, § 483, page 924 and § 485, pages 925-926, dealing with the precise status of deputies.
Now let us consider your question as to whether the matron is an "employee" of the jailer or county?
The matron is a creature of the statutes. If the matron has any employee status in addition to the "officer" status, a legislative act is required. Since your ultimate inquiry concerns the application or non-application of KRS Chapter 337 (wages and hours), we must turn to that chapter for guidance.
Definitely the jailer is the "employer," as defined by KRS 337.010(1)(d), since he employs the "employes," which are the jail deputies, including the matron. Under KRS 337.010(1)(e), an "employe" is any person employed by or suffered or permitted to work for an employer. Subsection (2)(a) lists a long line of express exceptions to "employe," as covered in KRS Chapter 337. County deputies to constitutional officers, including jailer deputies, are not listed in the exceptions. If the legislature had intended to exempt deputies of county constitutional officers, they would have done so, when considering the long list of express exceptions laid out.
We conclude that the jail matron is an "employe" of the jailer, who is the "employer" for the reasons given above, based upon the sheer work relationship between the two and the responsibilities carried. 803 KRS 1:005, Section 1, discusses the employe-employer relation, which treatment supports our analysis above. It reads in part:
"Section 1. The Employment Relation. (1) In order for KRS Chapter 337 to apply there must be an employe-employer relation. This requires an employer and employe and the act or condition of employment.
(2) The courts have made it clear that the employment relation under similar laws, such as the Fair Labor Standards Act, is broader than the traditional common law concept of the master and servant relation. The difference between the employment relation in KRS Chapter 337 and the common law employment relation arises from the language that employe includes to suffer or permit to work. The courts have indicated that, while "to permit" requires a more positive action than "to suffer," both terms imply much less positive action than required by the common law. Mere knowledge by an employer of work done for him by another is sufficient to create the employment relation under KRS Chapter 337.
Note the detailed "test of the employment relation, " in 803 KAR 1:005, Section 4. See also 803 KAR 1:060, treating in detail overtime payment requirements.
Thus KRS 337.285, providing for time and a half for employment in excess of forty (40) hours, applies to the jailer as employer and the jail matron as an employee of the jailer.
If the jail matron is the wife of the jailer, then under KRS 337.010(2)(vi), such a spouse of the employer would be exempt from the operation of KRS Chapter 337. Under that subsection a spouse of the employer is expressly exempt.
Question:
"(2) Since the Fiscal Court has no direct supervision over jail employees, who is responsible for overseeing their work (such as hours worked) ?"
As we pointed out above, the jailer has the direct supervision over his deputies, including the matron. KRS 71.020, 71.030, 71.040, and 71.060. Thus the jailer has the direct responsibility of determining precisely the necessary work schedule. He must use good judgment in authorizing overtime.
Question:
"(3) If the matron of the jail is the jailer's wife, and there was never any hours kept for the past four (4) years, or documented, is it reasonable and legal for the Dept. of Labor to take the matron's affidavit of hours worked per week, without any other proof?"
Since the matron, as the jailer's wife, is exempt from the operation of KRS Chapter 337 and specifically KRS 337.285, this question, which really concerns time and a half, is moot. However, as to employment records, KRS 337.320 requires every employer to keep a certain record, which, inter alia, must include "the amount paid each pay period to each employe; the hours worked each day and each week by each employe. " (Emphasis added). Obviously the legislature felt, in enacting KRS 337.320, that record keeping was central in the proper enforcement of KRS Chapter 337.
Question:
"(4) In 1979 the jailer hired the jail matron, (his wife) and the court agreed to pay her $450.00 per month at that time. Since then her salary has been increased twice to a total of $7,008 per year. With the above information, is the fiscal court responsible to pay that overtime pay that the Dept. of Labor says the matron is due?"
As we said above, if the matron is the jailer's wife, she is exempt from KRS Chapter 337, and specifically KRS 337.285.
However, suppose a county jailer employs a matron who is of no relation to the jailer. He must carefully, as the matron is a covered employee under Chapter 337, determine whether the time in excess of a forty (40) hour week is "actually necessary."
See KRS 337.010(2)(a)(ix), dealing with the concept of paying overtime as "necessary for the efficient operation of government." (Emphasis added.) However, we would think it difficult to prove in a particular period that the jailer deputies' working in excess of a 40 hour week was not necessary, since the jail operation is a continuous, 24 hour, around the clock type of operation. Prisoners require constant supervision; and the jailer must at all times have deputies to accept new prisoners. It is our view that where the overtime is not shown to be actually necessary in the exercise of the deputy's or matron's public function, such overtime would not be valid against the "jail" budget or the general county budget. See § 2 (arbitrary power prohibited), Kentucky Constitution; and Johnson v. Commonwealth, 291 Ky. 829, 165 S.W.2d 820 (1942) 823. Where overtime is not shown to be in the "public good," this is equivalent to saying that the extra time is not necessary.
Thus where it is shown that a jailer is guilty of mismanagement in creating an "overtime" situation, he will be liable on his bond under KRS 71.010 (see KRS 62.050 and 62.060). See also KRS 61.170, relating to an indictment of a jailer for misfeasance, malfeasance, or wilful neglect of office. Such jailer, where he illegally creates an overtime situation, would finally be personally responsible to the employee for the overtime.
It must be borne in mind that where KRS 337.285 (time and a half) is properly applied (extra time is necessary), then if the "jail budget" part of the county budget does not contain the money to pay for it, the fiscal court is then responsible for paying it, since the fiscal court has the overall duty of maintaining a county jail operation regardless of whether it admits an employer-employee relationship or not, unloss the matron is exempt from Chapter 337 where she is the jailer's wife. See KRS 441.005, 441.006, and 441.008. In such situation the "employer" is still the jailer under KRS Chapter 337.