[1996/oagheade.htm]

OAG 96-8

January 24, 1996

Subject: Constitutionality of H.B. No. 55

Written by: Thomas R. Emerson

Requested by: Don Cetrulo, Esq., Director, Legislative Research Commission

Syllabus: The proposed legislation is unconstitutional and in violation of Sections 14, 54, and 241 of the Kentucky Constitution to the extent that it attempts to immunize from civil liability any act or omission of a public officer or employee resulting in damage or injury.

OAGs cited: OAG 94-16, OAG 71-82, OAG 91-89, OAG 79-535

Constitutional Sections Cited: �� 14, 54, 241, 231

OPINION OF THE ATTORNEY GENERAL

This office has been asked to comment on the constitutionality of H.B. No. 55, introduced January 2, 1996, which in part seeks to establish by statute the common law governmental immunity of state officers for all public servants in both their individual and official capacities when engaged in the performance or supervision of a governmental function. Under the proposed legislation each public servant shall be immune from legal action for injuries to persons or damages to property caused by the public servant while acting on behalf of a governmental agency if the public servant is acting or reasonably believes he is acting within the scope of his authority, the agency is engaged in the exercise of a governmental function, and the public servant's conduct does not amount to gross negligence that is the proximate cause of the injury or damage.

You refer to Sections 14, 54, and 241 of the Kentucky Constitution as well as to Section 231 of that same document.

Section 231 of the Kentucky Constitution provides that, “The General Assembly may, by law, direct in what manner and in what courts suits may be brought against the Commonwealth.” This section refers to suits against the Commonwealth rather than suits against state officers and employees. In Bach v. Bach, Ky., 288 S.W.2d 52, 54 (1956) the court said in part that, “Under � 231 of the Kentucky Constitution, no one can sue the State without its consent. . . .” An example of the Commonwealth consenting to being sued in some situations is the enactment of legislation creating the Board of Claims (KRS Chapter 44). There is no authority in Section 231 of the Kentucky Constitution supporting the provisions of H.B. No. 55.

In numerous opinions over the years this office has written on the involvement and applicability of Sections 14, 54, and 241 of the Kentucky Constitution relative to attempts to legislate immunity. For example, in OAG 94-16, copy enclosed, at page two, we said in part that a particular statute was in violation of Sections 14, 54, and 241 of the Kentucky Constitution “to the extent it would relieve certain persons and entities from liability for negligently causing the death of, or injury to, another person, or the loss of, or damage to the property of another.” Among the cases cited in OAG 94-16 is Happy v. Erwin, Ky., 330 S.W.2d 412 (1959) where the court said that to the extent that the statute in question exempts officers and employees of cities from personal liability it is unconstitutional and void as it violates Sections 14 and 54 of the Kentucky Constitution (and would violate Section 241 if death were involved).

In OAG 71-82, copy enclosed, at page five, this office said in part that a statute which attempted to render a volunteer fire department and its personnel immune from tort liability due to negligence in performing fire fighting services is unconstitutional as being in violation of Sections 14, 54, and 241 of the Kentucky Constitution. “A distinction must be drawn between the authority of the General Assembly to waive immunity [which, concerning the Commonwealth only, is expressly provided for in � 231 of the Constitution] and the authority of the Legislature to establish immunity for private individuals, corporations or local governments, which latter authority does not, we think, exist under our present Constitution.”

Other prior opinions of this office which you may find informative or helpful concerning whether the General Assembly may legislate immunity are OAG 91-89 and OAG 79-535, copies of which are enclosed.

Thus, the proposed legislation is unconstitutional and in violation of Sections 14, 54, and 241 of the Kentucky Constitution to the extent that it attempts to immunize from civil liability any act or omission of a public officer or employee resulting in damage or injury.

A.B. CHANDLER III

ATTORNEY GENERAL

THOMAS R. EMERSON

ASSISTANT ATTORNEY GENERAL