Request By:
Mr. David H. Bland
Executive Director
Kentucky Jailers Association
Route #2, McCowans Ferry Road
Versailles, Kentucky 40383
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Pursuant to KRS 441.006(2), the fiscal court of any county must provide for the incarceration of prisoners by providing and maintaining a jail in that county; or the fiscal court shall contract with another county for the incarceration of such prisoners.
In the circumstances where a county closes its jail, you have the following questions:
1. Doesn't the person elected to the Office of Jailer retain the title and privileges of Jailer?
2. Doesn't the Jailer have the right to hire up to three (3) staff to cover at least a portion of the personnel time required by the transportation program? It is understood that the number and total available working hours would be dependent on the total number of hours the Jailer and his staff are on call for the purpose of transporting. Further, it is understood that as a constitutional officer, the Jailer has no set working hours or schedule; however, effective personnel management dictates that he not be on call 24 hours a day.
Concerning question no. 1, the county jailer is an elected constitutional officer, pursuant to § 99 of the Kentucky Constitution. Where the local jail is closed, his statutory duties are sharply curtailed, since he has no jail to be responsible for. Under KRS 441.009(5), where his local jail is closed for any reason, the jailer must serve as a transportation officer and shall be responsible for transporting prisoners, as provided in KRS 441.500. Thus under those two statutes, such jailer as transportation officer would have to transport prisoners, located in the out-of-county jail, to and from the county where the prisoners are incarcerated. This would include taking the prisoners to the proper court and to hospitals and doctors for any necessary medical attention. Under KRS 71.060(1), the jailer could appoint up to two deputies and a matron, where the deputies and matron are needed to aid the jailer in his role of transportation officer.
The duties of constitutional officers are strictly up to the General Assembly. In Johnson v. Commonwealth, 291 Ky. 829, 165 S.W.2d 820 (1942) 829, relating to the duties of an attorney general, the court concluded that the General Assembly may withdraw powers from the attorney general and assign them to others. However, by way of limitation of the broad authority of the legislature in prescribing duties for a constitutional officer, the court wrote as follows:
"This, however, is subject to the limitation that the office may not be stripped of all duties and rights so as to leave it an empty shell, for, obviously, as the legislature cannot abolish the office directly, it cannot do so indirectly by depriving the incumbent of all his substantial prerogatives or by practically preventing him from discharging the substantial things appertaining to the office." (Emphasis added).
As relates to question no. 2, we have dealt with that above. The jailer's use of deputies and a matron to assist him in his transportation role would hinge upon the manifested need for such deputy appointments and assistance. Depending upon the availability of funds in the jail budget, the jailer in this situation must use his sound business judgment in making the deputy and matron appointments which the situation dictates.