Request By:
Mr. John R. Elfers
Kenton County Attorney
Room 304, City County Building
Covington, Kentucky 41011
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The construction of county buildings is the topic for our opinion in your letter, which reads in part:
"Kenton County is a county of approximately 140,000 population and the county seat is at Independence, Kentucky, and the original courthouse is located in that city. In 1836, the City of Covington and Kenton County entered into an agreement for the removal of county offices to Covington, Kentucky, where they are presently located.
"The City of Covington and Kenton County presently occupy the City-County Building in Covington, Kentucky, which was constructed in the late 1960's. Ownership of this building is in the Covington-Kenton County Public Properties Corporation, which was set up pursuant to industrial revenue bond issue and the directors of that Corporation are the city and county officials.
"Kenton County is presently considering withdrawing from the City-County Building and constructing a new jail and/or a new jail and county office-type building which would include courtrooms for the district and circuit courts.
"We are requesting your opinion as to whether or not the county may construct a new jail facility only in any city or part of the county other than the county seat at Independence, Kentucky. We are also requesting your opinion as to whether or not the county could construct a new jail, county offices and courthouse building in any location other than the county seat as above mentioned."
The practical effect of KRS 23.090(2) was to require Kenton County to provide quarters for all courts and county officers in Covington and in Independence, the county seat. However, KRS 23.090(2) was repealed in the extraordinary session of 1976, effective January 2, 1978.
KRS 67.080(2)(b) (eff. 7-13-84) provides that "The fiscal court shall: As needed, cause the construction, operation and maintenance of all county buildings . . ." KRS 67.080(2)(d) states that "The fiscal court shall: provide for the incarceration of prisoners according to the provisions of KRS Chapter 441." Effective July 13, 1984, KRS 441.025, which amends KRS 441.006, provides in subsection (1) that "The fiscal court of each county shall provide for the incarceration of prisoners arrested in the county or sentenced or held by order of the courts in the county." KRS 441.025(2) provides that the fiscal court shall provide for the incarceration of prisoners by: (a) providing and maintaining a jail in the county; or (b) contracting with another county or a city for the incarceration and care of its prisoners; . . ." Under KRS 67.083(3)(p), the fiscal court of any county may make proper provisions for public buildings.
Kenton County was once the subject of special legislation relating to certain county buildings, but it is not necessary to deal with that, since at present Kenton County is subject to the general laws of Kentucky, and specifically is subject to KRS 67.080(2)(b) and (2)(d), and 67.083(3)(p).
It is our understanding that presently the only county jail and courthouse in Kenton County are housed in the Covington City-County Building. Further, there is no problem concerning the industrial revenue bond issue relating to the city-county building.
Independence is the county seat of Kenton County. It was incorporated on February 24, 1842. See Acts, 1841-2, p. 227.
KRS 67.080, as of the 1955 edition of the statutes, contained a subsection (4) which read:
" The fiscal court may: Secure a sufficient jail and a comfortable and convenient place for holding court at the county seat; . . ." (Emphasis added).
However, the explicit provisions of KRS 67.080(4) were deleted from the statute in the 1978 Regular Session. See Acts of General Assembly, 1978, Chapter 118, Section 2, effective June 17, 1978. In the 1904 case of City of Covington v. Kenton County, Ky., 82 S.W. 392 (1904), the old Court of Appeals observed that § 1840 of the Kentucky Statutes (a forerunner of KRS 67.080) explicitly restricted the construction and operation of jails and courtrooms to each county seat in the Commonwealth. See also Kenton County v. City of Covington, 287 Ky. 511, 154 S.W.2d 540 (1941) which pointed up the problem of the necessity for a statute explicitly authorizing a fiscal court to maintain a jail and courthouse in some place or places other than the county seat. In that context, see Craig v. Kenton County, 182 Ky. 403, 206 S.W. 603 (1918) 606; and Whitford v. Hehl, Ky.App., 612 S.W.2d 759 (1981).
You ask whether Kenton County may construct a new jail and courthouse facility (including rooms for the courts and other county officers) in any part of the county other than in the county seat of Independence, Kentucky.
It is our opinion that, although KRS 67.080(2)(b) and (d) and 67.083(3)(p) are not restrictive as to the precise geographical location of such facilities, the actual location of the holding of court under an applicable statute, KRS 26A.100, is central to the fiscal court's erecting such new facilities. The jail should be located so as to facilitate the availability of the prisoners to the courts.
KRS 26A.100(1) provides that the circuit and district court shall be held in the county courthouse of each county unless otherwise ordered by the Supreme Court, in which case it may be held at any other location made available by the county and owned, leased, or controlled by the county. Circuit or district court may also be held in such other locations in the county as may be convenient and approved by the Supreme Court of Kentucky.
The courthouse is presently located only in Covington, and KRS 67.080 and 67.083, as pointed out above, do not restrict the courthouse and jail to the county seat. A fiscal court, or urban county government council, is required to provide such reasonably available space, which would not disrupt the operation of county government, as necessary for the court system in the county courthouse or in some other county facilities at some other location in the county. KRS 26A.100(2).
When reading KRS 26A.100 as a whole, it seems to us that the initial determination of whether reasonably available space exists in a county is addressed to the fiscal court. Such decision would be final, except where the courts determine in an appropriate suit that the fiscal court acted arbitrarily in determining that the space in question was not reasonably available for the courts. See Henry v. Commonwealth, 312 Ky. 491, 228 S.W.2d 32 (1950) 33, observing that in the courts' construction of a statute the whole of it and the purpose of all of it are to be considered.
Considering that the adequate housing of the court and the jail systems are to be given a high priority, under KRS 26A.100, 67.080 and 67.083, the fiscal court of any county (except in urban county government it is the urban county council - see KRS 67.712(2)) has the authority to allocate space in the county courthouse or its county buildings for the court and jail systems. Its exercise of such authority can only be reversed by the courts, in a proper law suit, where the courts deem that the fiscal court has acted arbitrarily in its allocation decisions. See § 2, Kentucky Constitution, and Pulaski Fiscal Court v. Floyd, Ky., 374 S.W.2d 863 (1964) 864. There the court recognized the superior power of the fiscal court to regulate and control county buildings.
Although there is no longer a statutory provision requiring jails and courthouses to be located in the county seat, the location of such buildings addresses itself to the sound discretion of the fiscal court in terms of economics, political function and convenience for the court systems and the public generally.
Thus we believe that in your plans for such additional buildings you should, inter alia, work closely with the Kentucky Supreme Court, through its Administrative Office of the Courts, in order to best integrate county interests with the needs of the court and jail systems.
While KRS 26A.100(1) requires that the circuit and district court shall be held in the county courthouse, unless otherwise ordered by the Kentucky Supreme Court, note that the courthouse can be located anywhere in the county under present statutes. Thus it is vital that the fiscal court work closely with the judicial court as to the location or locations of the courthouse.
Each county providing space in a court facility to the Court of Justice under KRS 26A.100 must be paid an operating cost allowance plus a use allowance to be administered by the Administrative Office of the Courts, pursuant to KRS 26A.115(2). See OAG 84-159, copy enclosed.