Request By:
Mr. Edward J. Huck
Campbell County Jailer
345 Columbia Street
Newport, Kentucky 41071
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You request our opinion as to who has control under H.B. 379, KRS 431.140, as to the community service related work program when the center is located five (5) miles away from the Campbell County jail.
KRS 431.140, as amended in 1982 (Ch. 428, § 1, eff. July 15, 1982) reads:
When a defendant has been duly convicted of a crime and the punishment for the crime is imprisonment in the county jail, the defendant may be worked at some community service related project in the county where he is imprisoned or a jury may, in its discretion, in those cases in which it is authorized to fix the punishment, provide in its verdict that the defendant shall work at hard labor during the time of his sentence of imprisonment, and the presiding judge at such a trial shall inform the jury by an instruction that it may so provide in its verdict. When such a verdict is returned, or when the case is tried by the court or the punishment is authorized to be fixed by the court, a judgment shall be rendered directing that the defendant shall work at hard labor during the time of his sentence of imprisonment, as the verdict provides.
When a defendant has been convicted of a crime and the punishment for the crime is imprisonment in the county jail, and where the jury did not provide in its verdict for hard labor, under KRS 431.140, such defendant may be worked at some community service related project in the county where he is imprisoned.
A community service related project means work for a county, city or special district or an agency thereof. KRS 441.068.
Under KRS 441.068(2), pursuant to a written policy adopted by the fiscal court on the advice of the jailer, the jailer may permit certain prisoners to work on community service related projects, pursuant to KRS 431.140. Before a prisoner is permitted to work in that type project, the county judge executive or his designee must sign his approval to the prisoner's participation. The determination of which prisoners may be worked on community service related projects and the nature of work to be assigned to prisoners is the joint responsibility of the jailer and county judge executive. In making that determination, the jailer and county judge executive must consider the physical and mental ability of the prisoner and the security of the jail and the general public. KRS 441.068(3).
Subsection (5) of KRS 441.068 reads:
"The place of working such prisoners shall be determined by the county judge executive and he shall enter an order on the order book of the county judge executive, specifying the manner in which the prisoner may be worked."
In considering KRS 431.140 and 441.068, it is our opinion that the jailer retains custody of such prisoners and has control over them in the place of work designated by the county judge executive for that work, and subject to the county judge executive's order as to the specified manner of working the prisoners. There is nothing in the above legislation indicating that the jailer is to relinquish custody of prisoners assigned to community service related work projects. See KRS 71.020 (custody of jail) and 71.040 (treatment of prisoners) . See Lamb v. Clark, 282 Ky. 167, 138 S.W.2d 350 (1940), concerning the jailer's duty in the care of prisoners.
Next, you request our opinion as to whether or not you have the right to close the work center and refuse to operate it, and whether the closing could subject you to a malfeasance in office charge.
It is our opinion that you, as the incumbent jailer, are required to operate the community center, which place, we assume, has been designated as the place of such work by the county judge executive. See KRS 441.068(5). If you refuse to operate the center, you could be subjected to an action of claimed malfeasance in office or wilful neglect in the discharge of official duties, pursuant to KRS 61.170. See Commonwealth v. Furste, 288 Ky. 358, 156 S.W.2d 198 (1941); and Sanders v. Commonwealth, 249 Ky. 225, 60 S.W.2d 586 (1933). See also KRS 71.990, as to a violation of KRS 71.020.