Request By:
Mr. Howard A. See
Secure See Service Inc.
118 Vinson Blvd.
Louisa, Kentucky
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Three deputies of the Lawrence County Clerk's Office recently resigned from that office. They each had on file a bond with one of your insurance companies. You sent the three bonds to the clerk's office for the release of the surety's liability to be effective the date of the effective resignations. The releases were executed by the clerk's chief deputy. You say there is nothing in writing authorizing the chief deputy to execute the releases. You know of no oral authorization.
Your question Should the releases be signed by the elected county clerk? Your surety company apparently is holding you responsible for not procuring a properly executed release as they see it.
Since the clerk is still responsible for the acts or omissions of his deputies, he can require his deputies to execute bonds covering such liability. See KRS 62.210.
KRS 61.035 reads.
"Any duty enjoined by law or by the Rules of Civil Procedure upon a ministerial officer, and any act permitted to be done by him, may be performed by his lawful deputy. "
We assume that the bond contract requires the county clerk to release such bonds under these circumstances. The question is: Were the releases by the chief deputy effective in law?
On the face of it, the chief deputy clerk has the statutory authority to perform any ministerial act [not judicial in nature] which the county clerk can perform. KRS 61.035. This is true even though he only signs his name as deputy without the use of the name of his principal. The statute was designed to facilitate the statutory work of the county clerk and to validate the actions of the deputy clerks taken within the scope of such statutory duties. Conner v. Parsley, 192 Ky. 827, 234 S.W. 972 (1921) 973; and Hallahan v. Cranfill, Ky., 383 S.W.2d 374 (1964) 376. Judge Turner wrote in Conner v. Parsley, above, p.p. 973-974, that "The presumption of law, in the absence of anything to the contrary, is that one so signing himself is such deputy unless the contrary be shown."
Under the general power of the deputy to bind his principal when performing the principal's statutory functions, it is our opinion that the releases executed by the chief deputy as a purely ministerial act are binding on the county clerk. The releases merely attest to the fact of the termination of the three deputies' official employment. Thus it is not necessary to procure the releases by signature of the county clerk. Under the circumstances the surety's requirement that the releases be executed by the county clerk in person is an unnecessary one.