Request By:
Mr. David H. Bland
Kentucky Jailers Association
McCowans Ferry Road
Versailles, Kentucky 40383
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You request clarification on the following issues:
"1. Are not the two (2) deputies and one (1) matron provided for in KRS 71.060 to be considered full time positions i.e. at least 40 hours per week? (Ref. 82-108)
"2. If a fiscal court only provides one (1) matron, what must the jailer and/or the fiscal court do to classify her as a matron/ cook (OAG 82-463)?
"(3) If the fiscal court provides for a cook(s), are there any prohibitions against converting the matron position to a third full time male deputy?
"(4) Are there any statutes which would prohibit one of the night deputies from serving both as a deputy and radio dispatcher? "
As to question no. 1, KRS 71.060 provides that, except in counties having a population of 75,000 or over (KRS 64.345), any jailer may appoint not more than two (2) jailer deputies and a jail matron. Those positions are mentioned in the statute as being primarily full time positions. The 40 hour work week merely establishes the salary at the regular rate. Working "full time" , as we are using it, means working as a deputy (a matron is a deputy) on a regular, full time schedule, i.e., a full working day for seven days in a week (a jail does not shut down on Sunday), regardless of whether a particular deputy actually works all or part of that time. See Lexington Mining co. v. Richardson, 286 Ky. 418, 150 S.W.2d 889 (1941). In a practical and real sense, "full time" means the time during which the deputy is required to work. See
Hendricks v. Smith, 251 Ky. 699, 65 S.W.2d 986 (1933).
However, where the employment of one person as a full time deputy (including a matron) is not possible or feasible, we pointed out in OAG 82-108 that the jailer may employ two part-time persons to perform functionally what a full-time deputy would normally be expected to accomplish. This is just simple arithmetic to bridge over what otherwise would be a hiatus.
While KRS 71.060 is a general law requiring general application, the statute does not require a computer's numbers game to make it workable. Thus two or more people may work at what is generally envisioned a one person function, where it is shown to be necessary. KRS 71.060, when stripped down to its essential intent, is designed to enable a jailer to carry out his function as custodian and operator of the county jail. The purpose of the statute must be given effect if possible.
City of Bowling Green v. Bd. of Ed. of Bowling Green Indep. Sch. Dist., Ky., 443 S.W.2d 243 (1969).
In question no. 2, you say suppose the fiscal court only provides one (1) matron, then what must the jailer and/or the fiscal court do to classify her as a matron-cook?
Assuming that women prisoners will be housed in the jail in question, thus bringing on the necessity for a matron, such matron is, at the same time, a deputy and must meet the qualifications of a peace officer under KRS 61.300. See OAG 82-463. We pointed out in that opinion that there is nothing to prevent a matron from being a jail cook "at the same time." However, by that phrase "at the same time" we did not mean that both functions (checking on and watching prisoners and cooking) could be accomplished at the same time. Before a jailer can decide to vest both functions in a matron, he must carefully consider whether this division of functions in the matron could be effected such that the jailer's overall prisoner related functions may be adequately performed. These are practical operational considerations. However, where the jailer opts to have a matron-cook in one person, he should formally notify the fiscal court, because of appointing implications under KRS 71.060, of the dual role of the matron. In addition, the jailer's records must accurately reflect the time spent in both roles, for the purpose, inter alia, of the implications of the wage and hour law of KRS Chapter 337.
In question no. 3, you ask whether there are any prohibitions against converting the matron position to a third full-time male deputy? Here, we assume the matron is not required to do the cooking for the jail. We also assume from your question that the jailer decided to have no matron as such. We said in OAG 82-549 that the appointing of a matron is permissive. However, in your question, he appointed a woman as matron; and now, he wishes to convert the matron appointment into a third regular deputy position.
The answer is that the jailer cannot convert a "matron" position into a third or other regular deputy position. In terms of KRS 71.060(2), a person appointed as a matron remains a matron until the matron is removed by the jailer. While the matron is considered a deputy, she is really a deputy jailer as relates to her supervision over female prisoners in the jail. When she ceases to be a matron, she cannot be changed into a third regular or general deputy. To do so would be to change the intent of KRS 71.060. Note that the division of the deputy staff into regular or general deputies and a matron is carefully made in separate subsections (1 and 2). However, where the matron qualifies as a deputy jailer under KRS 61.300, the fiscal court could approve the jailer's appointment of the former matron as a third regular deputy under KRS 71.060(1).
Question no. 4 is whether there are any statutes prohibiting one of the night deputies from serving both as a deputy and radio dispatcher?
You are referring to a situation in which the night deputy jailer, at intervals, would operate radio dispatch equipment for the county sheriff's office or county police.
Since the role as dispatcher involves no officer status, we are not aware of any statute which prohibits the dual role. Cf. KRS 61.080. We assume the dispatcher would not involve a deputy sheriff role. Otherwise, KRS 61.080(2) and (3) would make such "offices" incompatible.
However, the important issue here is whether or not there is a practical incompatibility in terms of attempting two functions within the same general time frame. If the deputy jailer would execute both functions with care and ability, such that the requirements and standards of both functions would be met, then apparently there is no prohibition as to the dual roles. Cf.