OAG 96-42

November 12, 1996

Subject: Whether County Fiscal Court May Unilaterally Adopt Personnel Policies and Procedures Applicable to Jail Employees.

Written by: Gerard R. Gerhard

Requested by: Hon. J. Paul Long Jr., Lincoln County Attorney

Syllabus: Given certain statutes specific to jails, a county fiscal court may unilaterally adopt personnel policies applicable to jail employees, provided those policies do not infringe on the statutory authority or responsibilities of the jailer.

OAGs cited: 84-22; 84-36; 84-203; 84-291; 94-27.

Statutes Construed: KRS 71.020; 71.060(1) and (2); 441.025; 441.045(1); 441.225(2).

Opinion of the Attorney General

The following question has been presented:

May the fiscal court unilaterally adopt personnel policies and procedures applicable to jail employees?

While we cannot comment upon the legality of specific personnel policies that we have not reviewed, in our view the general answer is that, given certain statutes specific to jails, a county fiscal court may “unilaterally” adopt personnel policies and procedures that apply to jail employees (including “deputies”), provided those policies do not infringe on constitutional or statutory provisions. We assume “unilaterally,” as used in the question set forth above, to mean without input from, or the concurrence of, the jailer.

In several prior opinions, this office has indicated, in substance, that the fiscal court has no authority to establish personnel policies regarding the deputies of “constitutional officers” such as the county clerk, sheriff, and jailer. See, for example, Opinion of the Attorney General (OAG) 84-22; 84-36; 84-203. We here modify that view with respect to deputies and employees of the jailer. Particular provisions within KRS chapter 441 give the fiscal court responsibilities with regard to a jail and jail employees (including “deputies”) that serve to empower it to impose, with certain limitations, personnel policies upon deputies of the jailer, and, where applicable, other employees of the jail.

Authority of the Fiscal Court in Relation to the Jail

At the outset it must be recognized that the fiscal court has broad, express, statutory responsibilities regarding the operation of the jail. The fiscal court does not have similar responsibilities with regard to the county clerk's or sheriff's office.

KRS 441.025 provides, in part, that:

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.

(Emphasis added.)

KRS 441.045(1) provides:

The county governing body shall prescribe rules for the government, security, safety, and cleanliness of the jail and the comfort and treatment of prisoners, provided such rules are consistent with state law. The county judge/executive may inspect the jail at any reasonable time.

(Emphasis added.)

KRS 441.225(2) provides:

The jailer shall submit, in accordance with county payroll procedures, time reports for all full-time and part-time jail personnel and employees to the county treasurer or other designated payroll official. The county treasurer shall review and pay such claims in accordance with policies and procedures for the payment of other county employees.

(Emphasis added.)

In our view these statutes, among others, indicate specific responsibility for detailed matters regarding the operation of a jail that serve to empower the fiscal court to unilaterally adopt personnel policies and procedures that would apply to jail employees, including deputies of the jailer. Indeed, it might be said that KRS 441.045(1) and 445.225(2) constitute express statutory authority for the fiscal court to promulgate personnel policies related to jail deputies and personnel. Of possibly related interest, see OAG 84-291.

Limitations on Fiscal Court Imposing Personnel Policies Regarding Jail Employees

While we have indicated above that the fiscal court has broad responsibilities regarding the jail, those responsibilities should not be viewed as an authorization to operate the jail, or to interfere with the statutory responsibility or duties of the jailer.

As indicated by the Kentucky Supreme Court in Regional Jail Authority v. Tackett, Ky., 770 S.W.2d 225, 229 (1989):

KRS 441.025 states that a county may provide for the incarceration of prisoners by: `(a) providing and maintaining a jail in the county.' It does not provide that a fiscal court may operate a jail because that is a responsibility granted to the jailer by KRS 71.020.

KRS 71.020 provides, in part:

Each jailer shall have the custody, rule and charge of the jail in his county and of all persons in the jail and shall keep the same himself or by his deputy or deputies.

KRS 71.060 provides:

(1) The jailer shall be liable on his official bond for the conduct of his deputies. The deputies shall have all the powers and be subject to the same penalties as the jailer.

(2) The jailer shall be responsible for the appointment and removal of jail personnel, and the jailer may dismiss his deputies at any time with cause. The number of jail personnel shall be set by the fiscal court in the jail budget. The fiscal court shall establish education and training requirements as permitted by regulations adopted pursuant to KRS 441.055.

The fiscal court, in “unilaterally” (which we assume to mean without the participation or agreement of the jailer) developing personnel policies regarding jail employees, should carefully review proposed policies in relation to the statutory responsibilities of the jailer, to ensure that there is not a conflict. By analogy see OAG 94-27.

While the fiscal court may have the literal authority to “unilaterally” develop personnel policies regarding jail employees, a better approach might be to involve the jailer in the development of such policies, so as to minimize the likelihood of promulgating unworkable or inappropriate policies, or policies that might be subject to successful attack by the jailer as infringing on the jailer's statutory responsibilities and authority.

OAGs 84-22, 84-36, and 84-203, given the statutes quoted above within chapter 441 of the Kentucky Revised Statues, are modified to the extent they may be said to indicate that a fiscal court has no authority to promulgate personnel policies regarding deputies of the jailer, or staff of the jail.

A. B. Chandler III

Attorney General

Gerard R. Gerhard

Assistant Attorney General