The Honorable Charlie Laster, State Senator District 17 submitted a request to request for an official Attorney General Opinion and asked:
Is the maintenance of a county jail, regardless of whether the jail is operated by the county sheriff or a public trust created for such purpose, a constitutional duty or a statutory duty?
Duty to Maintain County Jail
While the office of county sheriff was created by Article XVII, Section 21 of the Oklahoma Constitution, the duties of the county sheriff are set by legislative action mainly in Title 19 of the Oklahoma Statutes. Included in such duties, the Oklahoma Legislature charged the county sheriff with the responsibility to maintain the county jail pursuant to 19 O.S. 2001, § 513, which provides:
The sheriff shall have the charge and custody of the jail of his county, and all the prisoners in the same, and shall keep such jail himself, or by his deputy or jailer, for whose acts he and his sureties shall be liable.
In addition, the Legislature further assigned jail duty to the county sheriff in 57 O.S. 2001, § 47 by providing as follows:
The sheriff, or such person designated by law in his place, shall have charge of the county jail of his county and of all persons by law confined therein, and such sheriff or other officer is hereby required to conform, in all respects, to the rules and directions promulgated pursuant to Section 192 of Title 74 of the Oklahoma Statues and of the district judge and communicated to him by the proper authority.
Recognizing that offices created by Article XVII of the Oklahoma Constitution, such as the county sheriff, are subject to legislative change, the Legislature allows a public trust to be formed by the county for the purpose of operating a county jail in order to promote and preserve the public safety of the county, under either 19 O.S. 2001, §§ 904.1 – 904.10 or 60 O.S. Supp.2007, § 176.2
In addition, the jail facility and/or the operation of a county jail may be contracted out to a private contractor by the county.3 Therefore, a county jail may be operated and maintained by the county sheriff, a public trust or a private contractor retained by the county.
To alleviate any confusion over whether the duties to operate a county jail imposed on a public trust are different than those imposed on the sheriff, the Legislature clarified the issue in 19 O.S. Supp.2007, § 513.2, in pertinent part by providing:
A. For the purposes of any jail facility, holding facility or detention center, every reference in statute or rule to any duty or responsibility imposed upon the sheriff or any jailer to operate, manage or provide any service to any person in the custody of such facility or any service related to the management or operation of such facility shall be deemed applicable to and imposed upon the public trust . . . who by contract or otherwise legally operates or manages such jail facility, holding facility or detention facility.
B. It is unlawful for any public trust . . . contracting to operate or manage any jail facility, holding facility or detention center to fail to comply with the provisions of any statute or rule relating to duties and responsibilities required to operate, manage and provide services to any person in the custody of such facility.
C. Every governmental entity and other authority who contracts for the operation or management of any jail facility, holding facility or detention center with a public trust . . . shall be required to have a provision in such contract requiring compliance with the duties and responsibilities imposed by statute or rule to operate or manage a jail facility, holding facility or detention center.
This office has previously discussed the duties of a public trust formed for the purpose of operating a county jail and determined that a trust “steps into the shoes of the county and the sheriff for the purpose of operating the county jail. Therefore, a county jail operated by a public trust has the same duties as a jail operated by the county itself through the sheriff.” A.G. Opin. 04-17, at 100.
Now that we have confirmed the duties of operating a county jail are the same regardless of whether the jail is operated by the county sheriff or a public trust, the remaining part of your first question involves a determination of whether such duties are constitutional or statutory.
The distinction between a constitutional duty and a statutory duty has evolved from Oklahoma case law when involving public indebtedness and county finance. The fact the sheriff must perform certain duties under various statutory provisions4 does not necessarily mean those duties are statutory duties. As discussed below, some of the duties delegated to the county sheriff by legislative mandate may be considered constitutional duties.
The definition of a constitutional duty in the context of public indebtedness and county finance law was established by the Oklahoma Supreme Court in the case of Smartt v. Board of County Commissioners,169 P. 1101 (Okla. 1917). Smartt involved a county sheriff who sought reimbursement for the feeding of county prisoners, a duty mandated by statute. Id. at 1101. The county refused to reimburse the county sheriff because the revenue that had been provided for that fiscal year had already been exhausted. Id. Since the county’s revenue had already been expended, the county did not provide the county sheriff with any additional funds over concern the county would have violated Article X, Section 26 of the Oklahoma Constitution. Smartt quoted Okla. Const. art. X, § 26 in pertinent part stating:
No county *** shall be allowed to become indebted, in any manner, or for any purpose to an amount exceeding in any year the income and revenue provided for such year, without the assent of three-fifths of the voters thereof, voting at an election, to be held for that purpose.
However, Smartt created an exception to Article X, Section 26. Smartt held that the very purpose of state government is to “delegate thereto the performance of certain functions looking to the common safety and welfare, and the necessity for the performance of these functions through the agency of the state and its various subdivisions is the sole object for its creation.” Id. at 1102. According to the court, the people had provided in the Constitution for a full set of state offices, “and confided to each the performance of certain duties which are made mandatory . . . for the protection and well-being of the people composing the state.” Id. Those certain duties must “always be actively exercised in order to preserve the existence of the state and secure to the people the rights guaranteed to them.”
The court further held that the surest way the state could fail to perform those duties would be to “construe the Constitution in such a way as to place it in the power of one set of officials to deprive another of the means necessary for the performance of the duties imposed upon that other.” Id. Such was the case in Smartt, where the county was depriving the sheriff of the means necessary to perform his mandatory duty of feeding county prisoners by refusing to reimburse his expenses. The court went on to say that if such a construction took place, it would be impossible for officers to enforce the laws for the regulation and protection of the public peace and safety. Id. As a result, the feeding of prisoners was a constitutional duty of the sheriff that was not considered an indebtedness within the limitation imposed by Article X, Section 26. Id. at 1104. Therefore, even though the feeding of prisoners was mandated by statute, the county sheriff, as a constitutional officer, was under a constitutional duty to feed prisoners, which was necessary for the protection and well-being of the people. Id. 1102. A logical extension of that reasoning means that if feeding prisoners is a constitutional duty of the sheriff, so is maintaining and operating a county jail, due to the fact a jail is necessary to incarcerate prisoners and the incarceration of prisoners is necessary for the protection and well being of the people.
This reasoning was further supported in Protest of Kansas City Southern Railway. Co., 11 P.2d 500 (Okla. 1932), where the sheriff incurred expenses for feeding prisoners, providing supplies necessary for the maintenance of the county jail and heating the county jail. The Supreme Court of Oklahoma relied on Smartt to determine that such indebtedness was not subject to the limitations of Article X, Section 26 of the Constitution, because feeding prisoners in the county jail, providing supplies for the necessary maintenance of the county jail and heating the county jail were all constitutional duties. Id. at 510.5 See alsoHillcrest Med. Ctr. v. State, 675 P.2d 432, 435 (Okla. 1983).6
Even though statutes such as 57 O.S. 2001, § 52 and 74 O.S. Supp.2007, § 192 require a county sheriff to provide necessary supplies for the county jail, under the standard set in Smartt and Protest of Kansas City Southern Railway Co., it is a constitutional duty of the sheriff to maintain a county jail by reason of the jail being necessary for the “protection and well-being of the people composing the state.”Smartt, 169 P. at 1102.
As discussed above, under the rule adopted in Smartt, the county sheriff as a constitutional officer has the constitutional duty to maintain the county jail, and even though a public trust is not created or designated as an office under the Constitution, a public trust operating a county jail takes on the duties of the sheriff because the public trust “steps into the shoes of the county and the sheriff for the purpose of operating the county jail.” A.G. Opin. 04-17, at 100. As a result, a public trust created for the purpose of operating a county jail has been delegated the constitutional duty to maintain the county jail. Therefore, the maintenance of a county jail, either by the county sheriff or a public trust created for the purpose of operating a county jail, is a constitutional duty.
