Request By:
Mr. Howard Kent Cooper
Russell County Attorney
Public Square
Jamestown, Kentucky 42629
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You ask whether or not a county clerk can pay the premium on Errors and Omission Insurance, covering his statutory operations, out of the earned fees of his office. Such insurance guarantees the policyholder against personal loss because of his erroneous act or failure to act.
We pointed out in OAG 77-63 that
Hennessy v. Stewart, Ky., 283 S.W.2d 719 (1955) 721, holds that, in the absence of an express statute insurance designed to cover the personal loss of an officer, should be paid for by the officer himself. In that opinion we concluded that under an appropriate ordinance the fiscal court may authorize the premiums on such insurance for county fee officers to be paid out of the county general fund, subject to proper budgeting procedure. We said the authority for such an ordinance would be KRS 67.083 [Home Rule statute]. We said that the public's interest in the quality of the official's performance of duties would justify invoking KRS 67.083. However, the
Supreme Court of Kentucky, in Fiscal Court, Etc. v. City of Louisville, Ky., 559 S.W.2d 478 (1977) held KRS 67.083 to be unconstitutional in its attempt to delegate legislative authority to fiscal courts in the context of general language. The court wrote at p. 481 that:
"Tradition establishes that county government in Kentucky is based on the premise that all power exercised by the fiscal court must be expressly delegated to it by statute."
In view of the fact that there is no statute expressly delegating to fiscal courts the legislative authority to enact an ordinance providing that such premiums may be paid out of the county treasury or earned fees of the officer, it is our opinion that there is presently no statutory authority for the county clerk's Errors and Omission Insurance premiums to be paid out of the earned fees of the county clerk. The clerk will simply the earned fees of the county clerk. The clerk will simply have to pay the premiums out of his own personal assets. have to pay the premiums out of his own personal assets.
OAG 77-63 is hereby withdrawn.