Request By:
Mr. Fred Greene
Logan County Attorney
P.O. Box 306
Clark Building
Russellville, Kentucky 42276
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
A prisoner in the Logan County jail was taken to the hospital, under guard, for an operation. The guards were installed outside of his hospital room under oral orders of the commonwealth's attorney. As of January 29, 1980, the guard bill incurred amounted to approximately $2,600.00.
The prisoner, while on parole from a felony charge, was convicted of a misdemeanor in Logan Circuit Court, and was sentenced to twelve months in the Logan County jail. While serving on that sentence, he required an operation. The jailer contacted the commonwealth's attorney about the security problem. Then the commonwealth's attorney orally instructed the jailer to procure security guards was the hospital operation and to post such guards outside of his hospital room for the entire time the prisoner stays in the hospital.
The circuit judge was not aware of any such order or the placing of the guards. Permission for the guards was not sought of the fiscal court. You understand that the jailer later mentioned the guard subject to the county judge/executive and that the guards would have to be paid for by somebody or through some friend. This matter has never been brought before the fiscal court.
Your question: Who should pay for these guards?
The Kentucky Department of Corrections has informed us that on December 10, 1979, the parole board revoked the prisoner's parole and a parole violation warrant was issued by the chairman of the parole board for the subject prisoner. Sometime thereafter the department notified the Logan County jailer that upon the release of the prisoner from that jail under the 12 months' sentence, the Department of Corrections would take custody of the prisoner and take him back to the LaGrange Reformatory on the parole violation warrant.
The commonwealth's attorney informed us that around the end of December, 1979, the hospital situation arose and thus the necessity for the security guard.
The prisoner is not now under the actual nor constructive custody of the Department of Corrections, and thus we can find no basis for the state's payment for the guards.
Since the county is responsible for the general operational costs of the county jail [exclusive of dieting fees], it is our opinion that this cost must be borne by the county as a properly budgeted item under KRS Chapter 68. See KRS 67.080 and 67.083(3)(e) [provision of corrections facilities and services]. Also see
Barkley v. Gatewood, 285 Ky. 179, 147 S.W.2d 373 (1941), dealing with the county's responsibility for providing for the adequate functioning of a county constitutional office.
While this contractual arrangement was not taken before the fiscal court, it may now be presented to the fiscal court for appropriate action. See
Pulaski County v. Farmers' Nat. Bank of Somerset, 225 Ky. 437, 9 S.W.2d 48 (1928), holding that a fiscal court may ratify an unauthorized contract made in behalf of the county if the contract is one that the fiscal court could have made originally. Here the contract is one that should originally have been made by the county.
The jailer should have gone to the fiscal court in the first instance to secure the hiring of the guards. See KRS 71.020 and 71.040, relating to the custodial responsibility of the county jailer. But in any event, the security of the prisoner who is serving a term in the county jail is the controlling element here. And that element places the cost of the guards with the fiscal court. The prisoner is not a state institutional prisoner at this time.