Request By:
Mr. Carroll C. Fugate
Perry County Judge/Executive
P.O. Box 83
Hazard, Kentucky 41701
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your problems arise out of the operation of the county jail.
KRS 441.010 reads:
"(1) The county governing body shall prescribe rules for the government and cleanliness of the county jail and the comfort and treatment of prisoners. The county judge/executive shall inspect the jail at least once each month.
"(2) Wilful violation of the rules promulgated pursuant to subsection (1) of this section shall be deemed a violation."
You say the fiscal court prescribed rules for the county jail in implementation of the above statute. You, as county judge/executive, inspect the jail monthly, for one reason to see whether or not the jailer is observing the rules relating to the internal management of the jail.
Question No. 1
"What authority, if any, and what action can I take in regard to the enforcement of these rules?"
KRS 441.010(2) provides that wilful violation of the rules shall be deemed a "violation". A violation can only involve a fine, but no term of imprisonment, since the offense is one outside of the penal code and no term of imprisonment is provided. See KRS 532.020(4). Moreover, KRS 500.080(17) defines "violation" as an offense, other than a traffic infraction, for which a sentence to a fine only can be imposed. This definition applies to the term "violation" as used in the penal code. The fine in a violation of jail rules cannot exceed $250. KRS 534.040(2)(c).
Since a "violation" is an offense under the penal code, it can only be enforced in the courts. Specifically the district court of your county, under KRS 24A.110, has exclusive jurisdiction of such a violation case.
The county judge/executive has no authority to enforce the jail rules under KRS 441.010, as last amended in 1976 (Ex. Sess.) Ch. 14, § 457.
Question No. 2:
"If the violation of the rules that were adopted by the County Governing body are violated and are a violation and upon inspection of the County Jail in finding these rules violated several times, will it still carry the penalty as one violation ($250.00)?"
Where an inspection of the jail reveals wilful violations of the published rules, a violation would exist as to each separate offense, carrying a fine in district court of up to $250. Under KRS 505.020(1) when a single course of conduct of the defendant may establish the commission of more than one offense, he may be prosecuted for each such offense. However, he may not be convicted of more than one offense when the offense is designed to prohibit a continuing course of conduct and the defendant's course of conduct was uninterrupted by legal process, unless the law expressly provides that specific periods of such conduct constitute separate offenses.
KRS 441.010 is silent as to the matter of separate offenses. On its face it seems designed to prohibit a continuing course of conduct. Thus where such conduct (violating the jail rules) is uninterrupted by legal process, he (defendant) may be charged with only one offense covering a period of time up to the day the legal process is issued. See 21 Am.Jur.2d, Criminal Law, § 8, p.p. 88-89; and 22 C.J.S., Criminal Law, § 9(1), p.p. 20-28.
Question No. 3:
"Since the County Judge/Executive and County Governing body is responsible for these rules and the compliance of the rules of the Jailer, does the County Judge/Executive or the Fiscal Court have any authority to close the Jail? "
The fiscal court is responsible for promulgating written rules for the internal management of the jail.
Henry v. Wilson, 249 Ky. 589, 61 S.W.2d 305 (1933) 307. The jailer must comply with such reasonable rules, a violation of which subjects him to the penalty provisions of KRS 441.010. The county judge/executive must inspect the jail once a month. On such inspection he must determine whether or not the rules are being substantially observed by the jailer. If not, the county judge/executive can go to the county attorney who can prepare a complaint and warrant. If the district judge issues a warrant, the case is within the jurisdiction of the district court.
Now as to the authority to close the county jail, the furnishing of a county jail is the responsibility of the fiscal court. See KRS 67.080(2)(b) and 67.083(3)(e). Considering that fiscal court has a continuing responsibility in furnishing a county jail, it is our opinion that the fiscal court could close down the county jail for repair, where extensive repair is necessary to make it adequate and humane. It can close down the jail permanently where it is found unfit or inadequate as a jail and where repair will not be performed. However, in both instances, the fiscal court must, within a reasonable time [as determined by the courts], provide another and adequate county jail. The county judge/executive alone has no authority to close down the county jail.