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
In your recent letter, you mention OAG 83-35, page 3, in response to question no. 3, in which we said that we could find no statute expressly authorizing the fiscal court or jailer to pay for liability insurance (for the jailer) out of county funds, generally, or out of the jail part of the county budget. We cited
Hennessy v. Stewart, Ky., 283 S.W.2d 719 (1955) 721. The court noted in that case that there was no statute in 1955 expressly providing for the jailer's liability insurance.
However, in OAG 80-221, we dealt with KRS 65.150, enacted in the 1979 Extraordinary Session, which reads:
"(1) A county or city or urban-county government may expend funds necessary to insure any of its employes and officials against any liability arising out of an act or omission committed in the scope and course of performing legal duties.
"(2) A county fee officer and his deputies and assistants may be insured pursuant to subsection (1) of this section, or the officer may expend excess fees to insure himself and his deputies and assistants against any liability arising out of an act or omission committed in the scope and course of performing legal duties.
"(3) Any parties eligible to expend funds for insurance pursuant to this section may associate for the purpose of insuring themselves."
A county jailer is not a fee officer. However, under KRS 65.150(1), the fiscal court of any county or urban county government may expend county funds, if available, to insure a county jailer against any liability arising out of an act or omission committed in the scope and course of performing legal duties.
It must be understood that under the literalism of KRS 65.150(1) (county may expend funds), it is permissive, not mandatory, for a fiscal court to pay for the jailer's liability insurance, as envisioned in that statute. See KRS 446.010(20), stating that "may" is permissive unless the context requires otherwise. As we said in OAG 83-35, where the fiscal court decides to not pay for such liability insurance, the insurance would then have to be paid for by the jailer out of his own private pocket. He is no longer a fee officer. The jailer has no authority to take it out of the fees of his office, since such fees are non-existent.
OAG 83-35 is modified accordingly.