Request By:
Mr. Richard H. Peek
Livingston County Attorney
Courthouse
P.O. Box 8
Smithland, Kentucky 42081
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your letter presents a question concerning the county jailer. The Livingston County jail is being closed. Your letter reads in part:
"KRS 71.060 which became effective July 1, 1982, provides that any jailer may appoint not more than two (2) deputies and a matron. KRS 441.009 Section 5 provides if a county jail is closed the jailer shall serve as a transportation officer.
"Livingston County Jail is in the process of being closed and our jailer has been informed that being only a transportation officer he is not entitled to a deputy or other benefits generally afforded to jailers.
"It would appear that the Jail Commission is attempting to circumvent Section 99 of our Constitution as well as KRS 71.060 by making the provision of KRS 441.009 applicable to the office of the jailer contrary to the Constitution and KRS 71.060."
Under KRS 71.060(1), any jailer, regardless of whether or not his jail is closed, is entitled to appoint not more than two (2) deputies. It is our opinion that the jailer of Livingston County could appoint up to two (2) deputies, unless the courts found that two deputies are not needed. This would depend upon the particular facts of this situation, and involving, inter alia, the number of prisoners to be transported during the remainder of his term. Only the courts could determine the reasonableness of the number of deputy appointments.
Under KRS 441.009(5), where the county jail is closed for any reason, the jailer shall serve as a transportation officer and shall be responsible for transporting prisoners of his county, as provided in KRS 441.500. The designation as "transportation officer" is unfortunate, since he is still the jailer of Livingston County, jail or no jail. It would have been better stated that such jailer, when his jail is closed, has the responsibility to transport his prisoners as necessary, i.e., to the courts and to the doctor, etc.
As you say, the county jailer is a constitutional and elected officer, pursuant to § 99 of the Kentucky Constitution. The old Court of Appeals, in Johnson v. Commonwealth, 291 Ky. 829, 165 S.W.2d 820 (1942) 829, observed that ". . . the office (referring to another constitutional office, attorney general) may not be stripped of all duties and rights so as to leave it an empty shell, for, obviously, as the legislature cannot abolish the office directly, it cannot do so indirectly by depriving the incumbent of all of his substantial prerogatives or by practically preventing him from discharging the substantial things appertaining to the office." (Emphasis added).
As to whether the legislature has stripped the jailer, in counties having no jail, so as to leave that office an empty shell, is a question which only the courts can resolve.