Request By:
Mr. Sherman Dean, Jr.
Jessamine County Judge/Executive
Courthouse
Nicholasville, Kentucky 40356
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
In your letter you raise this question:
"May a Fiscal Court subsidize the office of Jailer by making a monthly or lump sum payment to the jailer beginning in 1978 even though this was not authorized prior to the first Monday in May of 1977?"
We assume from your letter you can find no record wherein the fiscal court has authorized a salary for the jailer, payable out of the county treasury. Normally such action is required to be taken not later than the first Monday in May in the year of the election of the jailer. KRS 64.530(4). In addition, KRS 64.730 provides that a fiscal court is required to fix the compensation of an officer not later than the first Monday in May in the year of the officer's election and if the body fails to do so, the compensation of the officer is to be the same as for the preceding term. In this situation if the jailer had no salary out of the county treasury during the preceding term, then the fiscal court may at anytime fix a salary for the county jailer, payable out of the county treasury, which cannot exceed in 1978 the sum of $18,760.20, the maximum authorized under the rubber dollar statute, KRS 64.527. If a salary is authorized by the fiscal court for the jailer, such salary plus the jailer's fees cannot exceed in 1978 the maximum sum of $18,763.20. See also KRS 64.720, which provides that, except where the law provides that the compensation shall be paid out of the fees of the office, the fiscal court may authorize payment of compensation out of the county treasury to a county officer.
You speak of a lump sum payment to be paid to the jailer. If you meant a salary, we have just dealt with that question. If you refer to a lump sum expense account, then such lump sum expense account is not authorized. See KRS 64.710.
Next you ask whether a fiscal court can employ and pay a deputy jailer from general funds of the county.
KRS 71.060, as amended by H.B. 607 [Ch. 384, 1978 Acts, § 172], provides that generally any jailer may appoint not more than two deputies, and, with the approval of the county judge/executive, may appoint additional deputies. Thus the appointing of the first two deputies is strictly up to the jailer. However, if they are to be properly salaried, the action of the fiscal court is required. See KRS 64.530. This means that the fiscal court must authorize a reasonable salary for the deputy jailers to be paid out of the fees of office of the jailer or out of the county treasury, or both, depending upon the availability of funding from the jailer's fees. The salary authorized for deputy jailers from the county treasury must be paid out of a properly budgeted fund of the county. See KRS Chapter 68.
You ask who has the authority to fix the hours of employment, and can the fiscal court limit the work time of such deputies to 40 hours per week. The county jailer is a constitutional officer and thus he has the supervision and control over the deputy jailers, and the immediate employer is the county jailer himself. Thus the county jailer is responsible for the supervision of the jail and its prisoners and the deputy staff. With that responsibility goes the duty of establishing the work schedule for the deputies. See KRS 71.020, 71.040, and 71.060.
Your next question reads: If the employee works longer than 40 hours per week without the consent of the fiscal court, who is liable for wage and hour overtime, the fiscal court or the jailer? The necessity for paying an employee time and a half where his work week is longer than 40 hours is dealt with in KRS 337.285, as amended by H.B. 39 (Ch. 198, 1978 Acts, § 2). Where time and a half payment is involved, such money will come from the same source that the ordinary salary comes from. For example, if the deputy is paid wholly out of the fees of the jailer, then the jailer would be responsible for seeing that the time and a half payments are paid out of his fees. However, if the deputy jailer is compensated wholly out of the county treasury, then the time and a half pay would have to come out of the county treasury.
There is nothing to prevent the fiscal court's discussing the problem of a 40 hour work week with the county jailer, looking toward the possibility of minimizing the amount of time and a half that will be involved. However, you must bear in mind that when you have a jail loaded with prisoners, very often you will find that there will be a substantial number of prisoners in the jail seven days per week.