Request By:
Mr. Benjamin J. Jones
City Attorney
P.O. Box 67
Cynthiana, Kentucky 41031
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Cynthiana, a fourth class city, is in a county (Harrison) having no county jail. KRS 81.010(4).
The question before the Cynthiana City Commission is whether or not off-duty members of the Cynthiana Police Department may serve as assistants to the county jailer and receive compensation from the county for transportation of prisoners to a jail in an adjacent county.
Where a county has no jail, the fiscal court is required to provide for the incarceration of prisoners arrested in Harrison County or sentenced or held by order of the court in Harrison County by contracting with another county for the incarceration and care of its prisoners. This includes providing for the transportation of such Harrison County prisoners, including the provision of vehicles, drivers and guards. KRS 441.006. Under the situation existing in Harrison County, the jailer of Harrison County is responsible for transporting such Harrison County prisoners to and from the county where the prisoners are incarcerated, except as otherwise agreed by contract. KRS 441.500(3).
Under KRS 71.060, any jailer may appoint not more than two deputies and a matron, and, with approval of fiscal court, may appoint additional deputies at any time during the jailer's term. Where the county has no jail, the retention of deputies and the matron rest with the sound discretion of the jailer, depending upon the demonstrated need of such deputy staff.
The off-duty members of the Cynthiana Police could not serve as deputy jailers, since KRS 61.080 prohibits holding at the same time a city office and a county office. In addition, the deputy jailer position contemplates a full time position.
If such police officers were to be employed by the fiscal court as drivers of vehicles or guards, we see no incompatibility of office, since the drivers or guards would not be county officers. They would be county employees. On the face of it, we see no practical or common law incompatibility of employment in the latter situation. See Hermann v. Lampe, 175 Ky. 109, 194 S.W. 122 (1917).