Request By:
Mr. William I. Markwell
Henderson County Attorney
Courthouse
Henderson, Kentucky
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The county clerk has inquired of you as to the propriety of maintaining errors and omissions insurance coverage on herself and employees.
KRS 62.210 provides:
"The office of county clerk, rather than the individual holder of the office, shall be liable for the acts or omission of deputy clerks. When a deputy clerk omits to act or acts in such a way as to render the clerk responsible, and the clerk discharges such responsibility, the deputy clerk shall be liable to the clerk for all damages and costs which are caused by the deputy's act or omission. "
In OAG 78-474, copy enclosed, we concluded that there is no statute authorizing fiscal court to enact an ordinance providing that premiums for errors and omissions insurance, covering the statutory operations of county clerk, may be paid out of the county treasury or earned fees of the county clerk. Thus in the absence of an express statute otherwise, the insurance premiums for insurance to cover the personal loss of such officer must be paid for by the officer himself or herself.
Hennessy v. Stewart, Ky., 283 S.W.2d 719 (1955) 721.
Under the first sentence in KRS 62.210, if any errors or omissions on the part of the deputy clerks result in civil liability, the county clerk would not be personally liable for such acts or omissions. Thus the office of the clerk would be responsible. Practically this means the damages could come out of the excess fees of the office if available.
However, in OAG 78-474, we expressed a doubt that the courts would uphold the attempt of KRS 62.210 to shift the personal liability of the clerk to the fees of the office, since a public purpose is not involved. See §§ 2, 3, and 171, Kentucky Constitution. So much for the funding of such insurance premiums.
Turning to your question as to the propriety of the clerk's maintaining personally errors and omissions insurance on herself and deputies. The second sentence in KRS 62.210 states that " when a deputy clerk omits to act or acts in such a way as to render the clerk responsible, and the clerk discharges such responsibility, the deputy clerk shall be liable to the clerk for all damages and acts which are caused by the deputy's act or omission. " (Emphasis added). It seems to us that the statute presents such a fatal contradiction that the courts may, if the issue is presented, hold the statute unsustainable as a legislative act. In one sentence the statute says the clerk will not be personally liable for the acts or omissions of the deputy clerks. In the next sentence there is a clear suggestion of the clerk's potential liability for acts or omissions of the deputy clerks. This obvious incongruity, i.e., the idea of liability of the clerk and then no liability of the clerk, destroys the statute as a positive, intelligible legislative act. In
Sutton v. Rose, 224 Ky. 156, 5 S.W.2d 892 (1928), the court had before it a statute dealing with circuit court terms in the judicial district embracing McCreary, Whitley, and Knox counties. The court, in noting that the "provisions of the statute are flatly contradictory" , ruled that "it is utterly impossible to reconcile the different provisions of the act in question, and as it stands it is incapable of being administered." (Emphasis added). This was another way of saying that the flatly contradictory legislation was unworkable and invalid. It is our opinion that the Sutton case principle applies here, since the two sentences of KRS 62.210 are flatly contradictory, and thus the statute is unworkable and invalid.
Under these circumstances, and considering our duty to advise the county clerks of Kentucky, we conclude that the county clerks, in order to provide protection against their potential liability for acts or omissions of their deputy clerks, should procure adequate coverage for such potentiality by way of errors and omissions insurance.
Thus in summary it is our opinion that: (1) The clerk is personally responsible for his or her own acts of commission or omission and is personally responsible for the acts or omissions of the deputy clerks in the operation of the clerk's office. (2) The statute, KRS 62.210, is unworkable and invalid, since it contains the flat contradiction. (3) The county clerk should take out errors and omissions insurance to cover the clerk's potential personal liability. (4) The cost of such insurance premiums will have to be borne by the clerk, personally.