Request By:
Mr. James S. Secrest
Allen County Attorney
Box 35
Scottsville, Kentucky 42164
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The Allen Fiscal Court passed a resolution setting the reasonable rental value of the jail's residential quarters at $50 per month for purposes of withholding for F.I.C.A.
You ask whether this $600 per year is to be counted in determining the amount of excess fees the county jailer is required to pay over to the county after each calendar year of his term.
A county officer, such as the county jailer, who is compensated wholly or in part from fees, is required to pay over to the county, within a reasonable time after the end of each calendar year of his term, the excess of receipts over and above the amounts allowable for his personal compensation [fee plus any salary out of the county treasury], the compensation of his legally authorized deputies and assistants, and authorized official expenses.
Funk v. Milliken, Ky., 317 S.W.2d 499 (1958) 506.
We assume that the jailer is living in the residential portion of the county jail. The jailer or a deputy is required to live in suitable residential quarters of the jail. KRS 71.020. The legislative policy behind this is simply that it permits the jailer or a deputy to conduct a close surveillance of the jail operation, and thus minimizes various jail problems relating to security and other related matters. The statute requires no monetary consideration on the part of the jailer. The actual public consideration is promoting the effective management and control of the jail. Thus we conclude here, as we did in OAG 74-490, that the fiscal court can charge no rental to the jailer for his occupancy of the residential area of the jail.
It is our opinion that the rental value [$600 per year] of the residential quarters does not constitute "personal compensation" as dealt with in Funk v. Milliken, above. The answer to your question is that the $600 rental value should not be included in the jailer's receipts in determining "excess fees" , as defined in Funk v. Milliken, above.
You ask whether the rental value of the residential quarters is "creditable compensation" under the County Employes' Retirement System.
KRS 78.510(13) defines "creditable compensation" as "all salary, wages and fees paid to the employe as a result of services performed for the employer." (Emphasis added). In cases where compensation includes maintenance and other perquisites, the board is required to fix the value of that part of the compensation not paid in money.
Under the express language of KRS 78.510(13) it is our opinion that the jail rental value is not creditable compensation in terms of the County Employes Retirement System. The point is that there is nothing in KRS 71.020 which would convert the rental value of the jailer's residential quarters into salary or fees. The requirement that the jailer or his deputy occupy such suitable residential quarters of the jail involves legislatively prescribed working conditions for the jailer or deputy. In most cases the living in such quarters is a kind of sacrifice on the part of the jailer. Thus the jailer's compensation does not include this so called rental value. The mandatory requirement that the jailer or deputy live in those quarters does not, under KRS 78.510(13), constitute maintenance or other "perquisite" as a part of the jailer's compensation. The jailer could put his deputy in the residential quarters. Certainly it could not be said that such residential accommodations would have any relation to the jailer's compensation. Even where the jailer opts to live in the jail, that fact alone does not convert the rental value into compensation.
Thus the idea of placing a rental value on such quarters is really academic under this analysis. It could be said that there is a doubt that living quarters in a jail has any rental value. The point is that the jailer or deputy must live in such livable area, whether the jailer likes it or not. Fees, wages or salary are creatures of the legislature via statutes. There is no statute converting such living quarters into cash, fees, or salary.