Request By:
Mr. Bradley E. Dillon
Attorney at Law
Air Pollution Control District
914 East Broadway
Louisville, Kentucky 40204
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You represent the Air Pollution Control Board of Jefferson County, a group of seven persons appointed by the county judge and mayor to oversee the Air Pollution Control District. The board and district were created pursuant to KRS Chapter 77 and both have existed since 1952. Currently there are approximately 45 employees of the district and the district budget is approximately $800,000.
The board members have expressed concern about their possible personal liability and have directed you to request an opinion from us on this matter.
The specific question is: To what extent may board members be held personally liable for their official actions as members of the Air Pollution Control Board? In addition, you ask: To what extent may board members be held personally liable for the actions of the employees of the district?
As you say, the Air Pollution Control District involves a joint effort of Jefferson County and the City of Louisville. KRS 77.015. Under KRS 77.050 the district is a public body corporate and is a political subdivision of the Commonwealth. Under KRS 77.070 in Jefferson County the Air Pollution Control Board of the Air Pollution Control District consists of seven members, three of whom must be appointed by the county judge/executive, with the approval of the fiscal court, and four of whom shall be appointed by the Mayer of the City of Louisville, subject to the approval of the Board of Aldermen. Since the Air Pollution Control District is a political subdivision of the state, it would appear that the control district, as an arm of the state government, is clothed with the same sovereign immunity as the state has. It is true that the City of Louisville participated in the creation of the district. And it is true that municipalities have no sovereign immunity in connection with the negligent acts of its legislative body or the negligent acts of its employees or agents.
CF. Haney v. City of Lexington, Ky., 386 S.W.2d 738 (1965). However, as we said above, since the Air Pollution Control District is a political subdivision of the state, it would appear that the district itself is clothed with the same sovereign immunity as the state has.
Cullinan v. Jefferson County, Ky., 418 S.W.2d 407 (1967) 408. The decision in Haney was expressly limited to a municipal corporation and the sovereign immunity of the state was again recognized.
In answer to your first question, the members of the Air Pollution Control Board may be held personally liable for any wrongdoing or negligent act as members of that board, since the doctrine of sovereign immunity does not extend to the members on an individual basis. The basic rule on this was stated in
Moores v. Fayette County, Ky., 418 S.W.2d 412 (1967), 414, in which it was written that:
"The rule is that public officers are responsible only for their own misfeasance and negligence and are not responsible for the negligence of those who are employed by them if they have employed persons of suitable skill . . .
"The rule was recognized in
Whitt v. Reed, Ky., 239 S.W.2d 489, 32 A.L.R.2d 1160, wherein public officers were held liable for their failure to exercise ordinary care in selecting subordinates who were known to them to be unsatisfactory to perform the task which they negligently performed, and in the execution of which it was reasonable to infer that disastrous consequences would result. In
Spillman v. Beauchamp, Ky., 362 S.W.2d 33, 2 A.L.R.3d 814, it was pointed out that there must be 'some element of personal fault on the part of the officer or agent, such as negligence or deliberate wrongdoing. '"
Thus liability would arise as concerns board members, if they are personally guilty of any misfeasance or negligence. However, as concerns your second question, the board members could be held personally liable for wrongdoing or negligent acts of the employees of the district only if the board members failed to exercise ordinary care in selecting such employees or subordinates as mentioned above.
Spillman v. Beauchamp, above, the famous cow case, emphasized that "The ordinary rule is that a public officer when acting in good faith within the scope of his authority is not personally liable for damages sustained by a member of the public as a result of his action, unless he acted negligently, that is, failed to meet the standard of the ordinarily prudent man."