Request By:
Mr. Harold N. Taylor
Daviess County Sheriff
Courthouse
Owensboro, Kentucky 42301
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your question reads:
"Is a guard employed by the sheriff in transporting a prisoner to the state penitentiary entitled to compensation from the state?" The answer is "yes".
In OAG 78-528 we concluded that under KRS 64.070, as amended by S.B. 163 [Ch. 162, 1978 Acts, § 1], the payment of mileage to guards is no longer provided for by that statute. However, that opinion did not reach the question that you now present.
KRS 64.070(1)(a) provides generally that an officer conveying a prisoner to the penitentiary shall be paid out of the state treasury the rate per mile paid state employes for official travel in privately owned vehicles, as established by regulation of the executive department for finance and administration, to be calculated by the nearest traveled route, "and shall be paid all actual necessary expenses for feeding, lodging and transporting the prisoner. " (Emphasis added). In subsection (5) of that statute it is provided that the number of guards employed in conveying prisoners to the penitentiary or from one (1) county to another shall not exceed one (1) for every two (2) prisoners. Where only one (1) prisoner is conveyed no guard shall be employed, except that the circuit judge may appoint one (1) guard for each prisoner to the nearest railroad station.
It is our opinion that under the plain language of the statute an "employed" guard is entitled to compensation for his services to be paid out of the state treasury. Of course, the guard cannot be paid on a mileage basis because the language "for himself and for each guard employed" was deleted from the statute by H.B. 10 [Ch. 12 of the Extraordinary Session, 1976, § 12].
Since the statute as it now reads makes no precise mention of the monetary amount of such compensation, the only practical application of this statute would be that the Department for Finance and Administration will have to arrive at a reasonable compensation for such guards employed that reduces to a reasonable hourly rate of pay. Once a reasonable hourly rate of pay is established, it can be applied uniformly. As a matter of comparison and as a matter of guideline, see KRS 64.348, relating to hourly rates for sheriffs and other law enforcement officers for attending court.