Request By:
Mr. David H. Bland
Kentucky Jailers Association
McCowans Ferry Road
Versailles, Kentucky 40383
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
KRS 71.060(1) provides in part that "The jailer shall be liable on his official bond for the conduct of his deputies. " The jailer's deputies may be removed at any time by the jailer.
Within the frame of potential tort liability, you raise various questions:
1. Is the jailer's bond supposed to extend beyond covering for financial losses, to cover wrongful acts?
The reference in KRS 71.060(1) to the "jailer's official bond" concerns the official bond to the Commonwealth covered in KRS 71.010. See also KRS 62.050. The essential form of the bond, as dealt with in KRS 62.060, is that the bond shall be a covenant to the Commonwealth of Kentucky from the jailer and his surety or sureties that the jailer will faithfully discharge his duties, and there shall be no other obligation in the bond. Such bond must be limited in a definite penal sum which shall be determined and fixed by the county judge executive (see KRS 71.010). The bond must be fixed in the penal sum of not less than the value of the estate (here county money) which the jailer is in charge of (see KRS 441.008, relating to the jail operating budget).
It can be seen from the above statutes that the jailer's official bond mentioned in KRS 71.060(1) is a bond covering his financial responsibility in disbursing county money.
Rider's Ex'x v. Sherrard's Guardian, 231 Ky. 112, 21 S.W.2d 147 (1929) 148. In fixing and approving such bond, the county judge executive should set the bond for not less than an amount reflecting the estimated aggregate amount of public money coming into his hands each year during the effective period of the bond.
The answer to question no. 1 is that the jailer's official bond only extends to his financial responsibility in disbursing county or public money. It in no way is designed to cover the jailer's potential tort liability.
Question No. 2:
2. What is the relationship between a jailer's bond and public officials' errors and omissions liability insurance?
The official bond of the jailer merely guarantees the governmental unit owning the money that such public money will be properly and legally disbursed. A public official's errors and omission insurance covers the official as to liability arising out of an act or omission committed in the scope and course of performing his official duties. See KRS 30A.250 (liability insurance for circuit clerks) . County clerks take out errors and omissions insurance in connection with their recording function. Such insurance is primarily designed for officials to guarantee the policyholder (officer) against personal loss in the event he fails to perform an act required of him, or in the event he performs the required act in an improper or erroneous manner.
Question No. 3.
3. If a fiscal court refused to provide liability insurance for the jailer and his staff, what recourse does the jailer have?
Since we can find no statute expressly authorizing the fiscal court or jailer to pay for such liability insurance out of county funds, generally, or out of the jail part of the county budget, the answer is that such insurance must be personally paid for by the jailer out of his own pocket. See
Hennessy v. Stewart, Ky., 283 S.W.2d 719 (1955) 721. There the court said that if insurance is desired for the protection of a circuit clerk, to indemnify him against a personal liability, the clerk should pay for it. The court noted that there was an "absence of any statute expressly providing" for such insurance. (Emphasis added). The county is, of course, immune from liability under
Cullinan v. Jefferson County, Ky., 418 S.W.2d 407 (1967) 408. Thus the jailer's potential liability is involved as his personal matter.
The court has declared that the ordinary rule is that a public officer when acting in good faith within the scope of his authority is not personally liable for damages sustained by a member of the public as a result of his action, unless he acted negligently, that is, failed to meet the standard of the ordinarily prudent man.
Spillman v. Beauchamp, Ky., 362 S.W.2d 33 (1962) 36. In the later case of
Moores v. Fayette County, Ky., 418 S.W.2d 412 (1967), stated the rule to be that "public officers are responsible only for their own misfeasance and negligence and are not responsible for the negligence of those who are employed by them if they have employed persons of suitable skill." The case of
Whitt v. Reed, Ky., 239 S.W.2d 489 (1951) 491, declares the rule that "all public officers who have the power of appointing their subordinates are bound to exercise ordinary care in selecting proper persons for the position and to superintend their conduct; and they are bound not to assign to them tasks for which they know such subordinates to be incompetent and in the execution of which it is reasonable to infer that disasterous consequences will result."
Question No. 4:
4. When a jailer is sued by or on behalf of a prisoner either under Section 1983 or for a specific wrongful act, what responsibility does the county attorney have to defend him?
As we said in OAG 82-463, concerning any liability for jail employees' illegal or tortious actions, the county is immune under the doctrine of sovereign immunity.
Cullinan v. Jefferson County, Ky., 418 S.W.2d 407 (1967). The county attorney, under KRS 69.210, is the legal representative or advisor of the county. He has no responsibility concerning the advising or representing the jailer in such cases, unless a county interest is involved. The county attorney must represent the "interests of the county." However, unless there is a definite showing of "county interest" in the kind of litigation you suggest, the county attorney has no public duty to represent the jailer. Where the county interest is present, the fiscal court may (permissive only) direct the county attorney to defend such civil action. Where the jailer is sued in his official capacity, and where the county attorney and fiscal court have reason to believe the jailer acted in good faith in connection with his statutory duties, on its face it appears that a county interest is involved. The county has a direct interest in the manner in which the county jailer's statutory duties are performed, in connection with a county institution, the county jail, and the concomitant impact upon the affected public.
Roberts v. City of St. Louis, Mo., 242 S.W.2d 293 (1951). However, where, in the reasonable judgment of the fiscal court, he is unable for any reason to look after the interests of the county fully and completely, the fiscal court may employ counsel to assist him. See KRS 67.080 and 67.083; and
Lawrence County v. Stewart, 287 Ky. 827, 155 S.W.2d 446 (1941) 447. Under this assumption of county interest, the fiscal court may reimburse or indemnify the jailer for his actual litigational costs suffered by him "while acting in good faith" in the discharge of his official duties. Of course only after the litigation has become final can it be determined whether he so acted in good faith for the purposes of reimbursement of the jailer for actual litigational costs (money out of his own pocket) .
Question No. 5:
5. If the county attorney determines that to defend the jailer and the fiscal court would place him in a conflict of interest situation, what obligation does the county have to provide the jailer with adequate legal representation if the county attorney elects to represent the fiscal court?
As we indicated above, where the county attorney would have a conflict of interest as between the jailer and county, the fiscal court may employ other counsel to defend the jailer, assuming that the county attorney and fiscal court have reason to believe the jailer acted in good faith in the matter being litigated.