Request By:
Mr. Edward J. Rudd
Bracken County Attorney
Brooksville, Kentucky 41004
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
It has come to your attention that no bond was executed by the county jailer in Bracken County prior to the beginning of the current term, beginning January 4, 1982. He did take the required oath of office.
Question No. 1:
"Is the office of jailer vacant? "
KRS 71.010 provides in part that the jailer shall take the oath prescribed by the Constitution and execute bond to the Commonwealth with the county judge executive of his county, with sureties, approved by the county judge executive. Section 103 of the Kentucky Constitution provides that jailers, inter alia, shall, before they enter upon the duties of their office, and as often thereafter as may be deemed proper, give such bond and security as may be prescribed by law. Section 224 of the Kentucky Constitution provides that the General Assembly shall provide by a general law what officers shall execute bond for the faithful performance of their duties, and fix the liability therein. KRS 62.050 reads:
"(1) No officer required by law to give bond shall enter upon the duties of his office until he gives the bond."
"(2) Each person elected to an office who is required to give bond shall give the bond on or before the day the term of office to which he has been elected begins."
"(3) Each person appointed to an office who is required to give bond shall give the bond within thirty (30) days after he receives notice of his appointment."
The failure of the jailer to execute bond created a vacancy in that office. See
Campbell v. Dotson, 111 Ky. 125, 63 S.W. 480 (1901). KRS 62.050(2) requires the elected official who must make bond to give bond on or before the day the term of office to which he has been elected begins. The statutory deadline for executing bond is mandatory; and failure to give bond by the deadline vacates the office. See also
Lewin v. Ft. Mitchell, 148 Ky. 816, 147 S.W. 922 (1912) 923. KRS 62.990(2) provides in part that if any person violates KRS 62.050(2), "his office shall be considered vacant. " (Emphasis added).
Question No. 2:
"Is there any possibility of the jailer's signing the bond now?"
The answer is "no". Once the jailer passed the deadline without making bond, the office became vacant. The moving finger has moved on. There is simply no provision of statutory law permitting the making of effective bond after the deadline of KRS 62.050(2).
Clark v. Anderson, 300 Ky. 727, 190 S.W.2d 342 (1945) 344.
Question No. 3:
"What are the potential remifications as to liability of the county should no action be taken for the duration of the term?"
The county is immune from liability under the doctrine of sovereign immunity.
Cullinan v. Jefferson County, Ky., 418 S.W.2d 407 (1967) 408. The penalty provision, KRS 62.990, indicates that the vacancy is not automatic, but would require judicial action where the unqualified person is actually filling the office. See
Hermann v. Lampe, 175 Ky. 109, 194 S.W. 122 (1916). The removal of unqualified county officers is the sole responsibility of the commonwealth attorney under KRS 415.040, relating to usurpers of county offices.
Question No. 4:
"What are the required actions, if any, of the county judge executive and county attorney at this time?"
Where the office of jailer is actually vacated, the county judge executive is required to fill the vacancy, pursuant to KRS 63.220. Here, however, the jailer has not actually vacated the office, although the office is legally vacant in nature. We know of no required action on the part of the county attorney.
We do not believe the fact of the closing of the jail affects our above analysis and conclusions. There is still an office of jailer in your county to be filled. In such case, as you suggest, the jailer primarily becomes a transportation officer under KRS 441.500. Further, even though the jailer's failure to execute bond on a timely basis was primarily the result of his misunderstanding of the law, the significant point here is that he simply failed to timely execute bond. The reason for the failure is irrelevant.