Request By:
Mr. George M. McClure, III
Boyle County Attorney
Courthouse
Danville, Kentucky 40422
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Boyle County recently expended over a half million dollars to construct a new jail to serve the needs of your county. Surrounding counties have not been so fortunate. From time to time their prisoners are transferred to the Boyle County jail. This has occasioned several unfortunate incidents including a murder.
The Fiscal Court of Boyle County, by orders we assume, has established a fee of ten dollars ($10) per day per prisoner from another county, charged against the sending county. Mercer County owes your county some $4,000 for such prisoners. Some of the prisoners were transferred at will, and others were transferred by the circuit court. See KRS 441.030. 1
Your question is this: Is the per diem fee legal?
The dieting fee authorized to be paid to jailers is set forth in KRS 64.150, as amended in 1979 [Ex. Sess., Ch. 15]. That fee generally is $6.75 per day per prisoner. However, the statute is clear that the unit of government whose law a prisoner is charged with or convicted of violating shall be responsible for paying to the jailer the applicable fees in that statute.
It is our opinion that as relates to the dieting fees, KRS 64.150 controls. A county ordinance providing some other dieting fee amount and requiring the sending county to pay it, even though the prisoners are charged with violations of state statutes, would be illegal.
Of course, in considering these out-of-the county prisoners, the jailer of Boyle County is authorized to receive only such prisoners as are authorized by a written order of a court having jurisdiction. See KRS 71.020 and 71.040 and Garvin v. Muir, Ky., 306 S.W.2d 256 (1957). Such authority for transfer as relates to circuit court prisoners is given in KRS 441.030. The authority for a district court to order transfer of district court prisoners to an out-of-the-county jail is found in KRS 24A.110, as an inherent power under its general criminal jurisdiction. 2
When considering the responsibility of each county, through its fiscal court, to provide for jail or detention facilities [see KRS 67.080 and 67.083(3)(e)], it is our opinion that the Boyle Fiscal Court could, by ordinance, establish a reasonable charge per day for furnishing the jail facilities to out-of-county prisoners, not as a dieting fee but as a reasonable charge imposed upon the neighboring using counties under the theory of their sharing in the capital cost of constructing such facility and the cost of utilities. It seems to us that this is both an equitable and legal approach until such time as the General Assembly effects changes in the jail system. This is strictly a cost sharing device. If a particular county does not provide a jail, or adequate jail, it is merely logical reasoning that such county should share the cost of a county jail with that county which actually furnishes the jail to the former's prisoners.
If the ordinance provides for a $10 per day payment per prisoner, the reasonableness of the charge would have to be determined in light of several pertinent factors, including the original construction cost of the jail, space allocated per prisoner, the cost of utilities, the present cost of replacement of the jail if it had to be rebuilt, the level of standards in terms of what would be considered adequate jail housing. 3 This sharing concept meets, we think, the fundamental fairness requirement of § 2, Kentucky Constitution. Pritchett v. Marshall, Ky., 375 S.W.2d 253 (1964) 258.
Footnotes
Footnotes
1 KRS 441.030 relates solely to circuit court prisoners. Foster v. Commonwealth, Ky., 348 S.W.2d 759 (1961) 760.
2 Guidelines of KRS 441.030 would apply.
3 KRS 441.420 requires approval of construction plans by Department of Corrections and other agencies.