Request By:
Ms. Rosemary F. Center
Wolfe County Attorney
Campton, Kentucky 41301
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
As County Attorney of Wolfe County you request our opinion concerning whether or not the Wolfe County Fiscal Court may contract with an adjoining county, Morgan County, to provide a jail for prisoners of Morgan County which has closed its jail because of inadequate facilities. We understand that the Morgan county jailer has filed suit in his county because of the shutdown of the Morgan County jail. Realizing the emergency created by the Morgan County jail closing (the prisoners in the meantime must be detained securely somewhere), we shall answer your questions, which do not involve the issue before the Morgan Circuit Court.
KRS 441.006 provides:
"(1) The fiscal court of each county shall provide for the incarceration of prisoners arrested in the county or sentenced or held by order of the courts in the county.
"(2) The fiscal court shall provide for the incarceration of prisoners by:
(a) Providing and maintaining a jail in the county; or
(b) Contracting with another county or a city for the incarceration and care of its prisoners and providing for the transportation of prisoners, including the provision of vehicles, drivers and guards.
"(3) Nothing in this section shall prohibit a county from providing facilities for holding prisoners for limted periods of time and contracting with another county or a city for longer periods of incarceration.
"(4) Any county may enter into an agreement pursuant to KRS 65.210 to 65.300 to provide or to use jail facilities. "
Of course, under our regulations, we cannot get into the question surrounding the legality of the particular closing of the Morgan County jail, since you have told us that the jailer is litigating that question.
Under KRS 441.006(2), a fiscal court must provide for the incarceration of that county's prisoners by providing a jail, "or contracting with another county or a city for the incarceration and care of its prisoners and providing for the transportation of prisoners, including the provision of vehicles, drivers and guards. " (Emphasis added).
The answer to your question is that the Wolfe County Fiscal Court can enter into a contract, wherein the Wolfe County Fiscal Court will furnish detention facilities for the prisoners of Morgan County awaiting appropriate court action in Morgan County. Since the legal issue of the closing of the Morgan County Jail is in the suit filed in the Morgan Circuit Court, the Wolfe County Fiscal Court might appropriately wish to engage in a contract for a limited period, awaiting the outcome of the Morgan Circuit Court case on the Morgan jail closing. A longer contract might be executed later. In addition, note that KRS 441.006(4) provides that any county may enter an interlocal agreement (KRS 65.210 to 65.300) to provide or to use jail facilities. We construe that as an additional method of contracting with regard to housing of prisoners.
Our conclusion is based upon the clear and literal words of the statute.
H.O. Hurley Co. v. Martin, 267 Ky. 182, 101 S.W.2d 657 (1937).
Your second question reads:
"If a contract between the two counties is permissible, what compensation would the county providing such services be allowed to receive?"
First, KRS 441.006 lays down no precise formula or specific terms of such a detention facility contract.
Each county receives a state contribution from the state treasury, pursuant to a formula, for the care and maintenance of prisoners, pursuant to KRS 441.007. However, the election by a county to close its jail and to contract with another county for the incarceration of prisoners, as permitted by KRS 441.006, does not affect the state contribution provided in KRS 441.007(1).
It is our opinion that the compensation to be paid to Wolfe County by Morgan County for the keeping of Morgan County prisoners must depend upon the mutual agreement of the two fiscal courts, which agreement should involve a reasonable compensation to Wolfe County for the detention services furnished, framed around the actual costs of furnishing such detention facilities. Cf. KRS 441.040(2) (transfer of prisoners from one jail to another by court order). The cost elements could include a consideration of the original construction cost of the Wolfe jail, the space allotted per prisoner, the cost of utilities, the present cost of replacement of the jail if it had to be rebuilt, the level of standards in terms of what would be considered adequate jail housing, the operational and salary costs relating to the jailer and his deputies, including furnishing of food. Until the General Assembly spells this out with particularity, an agreement based upon Morgan County's sharing in both the operational and capital construction costs would be equitable, and would meet the fundamental fairness concept expressed in § 2, Kentucky Constitution. See