Request By:
Mr. William F. Ivers, Jr.
Henry County Attorney
P.O. Box 108
New Castle, Kentucky 40050
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your letter concerned problems arising from the Henry County jail system. It reads:
"Our county has an elected jailer and two jail facilities, one in New Castle, and one in Eminence. In February of this year, the fiscal court authorized the appointment of a deputy jailer and a matron for our Eminence jail facilities and ordered that these positions be funded by the fiscal court in the amount of $700 per month. Beginning in March of this year and continuing into July the two appointed employees of the Eminence jail worked considerable amounts of overtime each week. My questions in regard to the situation are as follows:
"(1) Prior to the effective date of House Bill 440 would the fiscal court or the elected jailer be responsible for any overtime worked by the deputy jailers.
"(2) After the effective date of House Bill 440 would the fiscal court be responsible for the deputy jailers overtime hours and would this be the case if the fiscal court had not authorized the working of any overtime hours.
"(3) What minimum wage applies to the payment of deputy jailers, the Kentucky wage or the federal minimum wage? "
Here one jail building is in New Castle, the county seat, and the other jail building is in Eminence, Henry County. The purpose in having two facilities was to house the male prisoners in the New Castle jail building and female prisoners and juveniles in the Eminence jail building. The word "jail" is defined in KRS 441.005(1) as meaning "county jails and correctional or detention facilities, including correctional facilities defined in KRS 67B.020 and juvenile detention facilities, operated by and under the supervision of any county, city or urban county government." That definition clearly suggests that there may be more than one jail building in any county, and there is no restriction as to its location. The location is left to the sound discretion of fiscal court as to any jail facility other than the usual one located in the county seat. Further, even before the enactment of H.B. 440, the statutes then clearly made the county responsible for providing jail facilities for both male and female prisoners and juvenile delinquents. We cannot see any problem in that area as to actual separate jail facilities.
The answer to question no. 1 is that prior to July 1, 1982, the effective date of Section 1 of H.B. 440, relating to definition of "county jail" , the jailer, and, if necessary (where jailer had no funds for that purpose) the fiscal court, was responsible for providing for any overtime worked by the deputy jailers. See KRS 337.285, prior to the 1982 amendment.
Even prior to the effective date of H.B. 440, the jailer was the "employer" and the deputy jailer was the "employe" under KRS 337.010(1)(d) and (e). The deputy jailer is not exempt from KRS Chapter 337, unless the deputy jailer (matron) is the wife, child or other member of the jailer's immediate family. KRS 337.010(2)(vi). See 803 KAR 1:005, Section 1 (employer-employe relation), Section 4 (test of the employment relation); and 803 KAR 1:060 (overtime pay requirements).
Thus under question no. 1, KRS 337.285 (overtime pay) applied to jail deputies and matrons prior to the enactment of H.B. 440, except where the deputy or matron is the parent, spouse, child or other member of the jailer's immediate family. See also KRS 71.020, 71.040 and 71.060(2); § 106, Kentucky Constitution; and Connors v. Jefferson County Fiscal Court, 277 Ky. 23, 125 S.W.2d 206 (1939). Those authorities indicate the jailer is the officer having direct supervision over deputy jailers. Connors v. Jefferson County Fiscal Court, above, indicates that jail matrons are considered as a deputy jailer. See KRS 71.060(2). A deputy jailer and matron are public officers, generally, as well as being employes under KRS Chapter 337. Howard v. Saylor, 305 Ky. 504, 204 S.W.2d 815 (1947) 817.
Prior to the enactment of H.B. 440, where the time in excess of 40 hours was authorized by the jailer, the time and one half payment was a claim against the jailer's fees. Where he had no fees available, the county treasurer, where a properly budgeted sum was available, was answerable to such payment for overtime, under the concept that the county jail was a county institution, even though the jailer was immediately in charge of the jail, and the fiscal court was ultimately or derivatively responsible for the effective operation of that county institution. House Bill 440 lays out the county's responsibility for a jail in clear, explicit and certain terms. KRS 441.006 and 441.008.
Of course the jailer should authorize work in excess of 40 hours (per week) only where necessary. See KRS 337.010(2)(a)(ix); necessary. See KRS 337.010(2)(a)(ix); § 2, Kentucky Constitution; and Johnson v. Commonwealth, 291 Ky. 829, 165 S.W.2d 820 (1942) 823. Where it is shown that a jailer is guilty of mismanagement in authorizing an "overtime situation", he would be personally liable, and liable on his bond (KRS 62.050, 62.060, and 71.010), for the payment of the overtime to the deputy or matron. In such situation, the claim would not be payable from the jail fund or county treasury. Where the overtime is necessary, the claim for overtime must now be paid from the jail fund, or from the county treasury generally, where there are no jail budget funds to pay it. See KRS 441.005, 441.006 and 441.008.
On and after July 1, 1982, in answer to question no. 2, the county treasurer at the direction of the jailer would be responsible for payment of overtime to the deputy jailer and matron out of the jail budget part of the county budget, assuming that the overtime was necessary. Here we would assume such an expenditure would be within an authorized budget category, as covered in KRS 441.008(2). If not, then the fiscal court would have to pay it out where such funds are available. See KRS 441.008 and KRS 337.285, as amended in 1982 (Ch. 376, § 1). See KRS 71.060, as amended in 1982 (Ch. 385, § 28). The determination of whether overtime is actually necessary is a responsibility of the jailer (his sound discretion) . See KRS 71.020, providing that "each jailer shall have the custody, rule and charge of the jail in his county and of all persons in the jail and shall keep the same himself or by his deputy or deputies. "
As to question no. 3, the state minimum wage statute, KRS 337.275, as amended in 1982, applies to the jailer deputy and matron. KRS 337.275(1) provides that "Except as may otherwise be provided by this chapter, every employer shall pay to each of his employes wages at a rate of not less than two dollars sixty cents ($2.60) an hour." That statute, as amended in 1982, became effective July 15, 1982.
As a general rule, employees of units of state and local government are not subject to the federal minimum wage law. See OAG 79-259, copy enclosed. Although Congress, in 1974, amended the Federal Fair Labor Standards Act, extending the statutory minimum wage and maximum hours to employees of states and their political subdivisions, the Supreme Court, in National League of Cities v. Usery, 426 U.S. 833, 49 L. Ed. 2d 245, 96 S. Ct. 2465 (June 24, 1976), held that the statutory amendments exceeded congressional power under the Commerce Clause of the Federal Constitution (Art. I, § 8, Cl. 3) because they directly displaced the states' freedom to structure integral operations in areas of traditional governmental functions. The court said this as to the amendments, at 49 L. Ed. 2d 257:
"For even if we accept appellee's assessments concerning the impact of the amendments, their application will nonetheless significantly alter or displace the States' abilities to structure employer-employee relationships in such areas as fire prevention, police protection, sanitation, public health, and parks and recreation. These activities are typical of those performed by state and local governments in discharging their dual functions of administering the public law and furnishing public services. Indeed it is functions such as these which governments are created to provide, services such as these which the States have traditionally afforded their citizens. If Congress may withdraw from the States the authority to make those fundamental employment decisions upon which their systems for performance of these functions must rest, we think there would be little left of the States' '"separate and independent existence."' Coyle, 221 US, at 580, 55 L Ed 853, 31 S Ct 688."
Thus the court in National League of Cities v. Usery, above, concluded that the Congress, in prescribing minimum wages and maximum hours to be paid by the states in their capacities as sovereign governments, has sought to wield its power in a fashion that would impair the states' ability to function effectively in a federal system. The Usery case holding was later cited in National League of Cities v. Marshall, (U.S. Dist. Court, District of Columbia, March 25, 1977) 429 F. Supp. 703.