Request By:
Mr. Jack R. Underwood, Jr.
Assistant Jefferson County Attorney
Jefferson County Attorney's Office
Twenty Seventh Floor
Citizens Plaza
Louisville, Kentucky 40202
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
In response to your previous request about the duties of the Jefferson Circuit Clerk, as ex officio librarian of the county law library, we issued OAG 80-423.
You say that the Board of Trustees of the Jefferson County Law Library, because of the lack of specificity in the statutory outlining of duties of the librarian, requests further clarification.
Specifically you write that the circuit clerk takes the position that his duties do not extend to providing any personnel to assist in the running of the county law library; and he is in the process of withdrawing the one individual he has thus far provided to do it. Since the circuit clerk, as librarian, is responsible under KRS 172.110 to keep the library in order and preserve, arrange and index all the books, and see that no books are taken from the library, etc., the Board of Trustees has taken the position that it is implicit in the statutes that the circuit clerk provide personnel to meet his responsibilities. We agree.
While KRS Chapter 172 is not too specific, the statutes in that chapter are specific enough and definite enough to convey the intent that the circuit clerk is responsible for serving as the librarian under the express statutes and for performing those implied librarian functions necessary to carry out the express library functions listed therein. Powers of officers are limited to those conferred expressly by statute or which exist by necessary and fair implication. Blue Boar Cafeteria Co. v. Hackett, 312 Ky. 288, 227 S.W.2d 199 (1950) 201. In 67 C.J.S., Officers, Sec. 197, page 649, this is written about the duties of a public officer:
"The duties of a public officer are usually prescribed by statute. However, it has been observed that such statutes seldom, if ever, define with precise accuracy the full scope of such duties, and it appears that the official duties of a public officer need not be prescribed by statute, but may be imposed by regulation or by usage and custom. Generally, the duties of a public office include those lying fairly within its scope, those essential to the accomplishment of the main purpose for which the office was created, and those which, although incidental and collateral, serve to promote the accomplishment of the principal purposes.
"Public officials take their offices cum onere with all responsibilities attached, and in accepting office impliedly contract to perform the duties thereof. As a general rule, the duties imposed by law on public officers are functions and attributes of the office, and not of the officer. . . ."
We pointed out in OAG 80-423 that the circuit clerk could delegate his librarian functions to any of his deputies, pursuant to KRS 61.035.
The obvious intent of KRS 61.035 was to afford a principal officer with the specific authority to delegate, where deemed necessary, any of his statutory functions of a ministerial nature to a deputy of his office. See Payton v. Porter, 97 Ky. 757, 31 S.W. 874 (1895). In Monroes' Guardian Ad Litem v. Monroe, 215 Ky. 440, 285 S.W. 250 (1926), the court observed that "It is well settled that, in the absence of statutory authority, a deputy may not perform for his principal any duties judicial or quasi-judicial in their nature, but that he may perform all other acts which his principal is authorized to do."
A "ministerial" act, as distinguished from a "discretionary" one, is defined in Shearer v. Hall, Ky., 399 S.W.2d 701 (1966): "An official duty is ministerial when it is absolute, certain, and imperative, involving merely execution of a specific act arising from fixed and designated facts. . . ." Thus it can be seen that the county law librarian is a ministerial officer in connection with that function. The principle of delegation of ministerial authority to a deputy was reiterated in the later case of Mullins v. Commonwealth, 294 Ky. 593, 172 S.W.2d 211 (1943) 213.
Since the circuit clerk has the positive duty to serve as the county law librarian, the statutes, KRS Chapter 172, implicitly require the circuit clerk to use any deputy necessary to assist him in performing properly the function of county law librarian. This is made possible through KRS 61.035 (delegation of authority to deputies) , as above mentioned. As was written in 67 C.J.S., Officers, Sec. 197, above, this statutory responsibility involving the county law librarian function really falls on the office of circuit clerk, regardless of who is clerk; and thus the office staff (the clerk through use of his deputies) are held responsible for the librarian function.
As we pointed out in OAG 80-423, the trustees could hire personnel to assist the librarian, subject to available funds. However, that fact in no way relieves the clerk, through the appropriate use of his deputy staff, of the librarian function.