Request By:
Mr. Harry P. Brown, Director
EKEDC
P.O. Box 1269
925 Winchester Avenue
Ashland, Kentucky 41101
Opinion
Opinion By: Robert F. Stephens, Attorney General; Robert L. Chenoweth, Acting Deputy Attorney General
As the Director of the Eastern Kentucky Educational Development Corporation (EKEDC), you have asked the Office of the Attorney General for an opinion regarding liability of the directors of EKEDC. Under the Interlocal Cooperation Act, KRS 65.210-65.300, EKEDC was formed as a separate legal entity and has thereby become a local educational agency. The EKEDC Board of Directors is composed of the superintendents from 32 local school districts which participate in EKEDC. With this background, you has asked this office the following:
"To what extent, if any, are the Superintendents and their respective Boards of Education liable for suits against EKEDC due to (1) Bodily Injury occurring on EKEDC premises, (2) Noncompliance with building procedures as specified by law, (3) misuse of EKEDC funds?"
As to the issue of liability of the respective local boards of education, the doctrine of sovereign immunity precludes recovery against the boards and school system as a body politic. See Knott County Bd. of Ed. v. Mullins, Ky. App., 553 S.W.2d 852 (1977). This does not mean that the Board of Education members, in their individual capacity, could not be sued and held individually liable for negligent actions. See Smiley v. Hart County Board of Education, Ky., 518 S.W.2d 785 (1975). Under the circumstances with EKEDC being a separate legal entity, the likelihood of negligent conduct by local school board members is remote.
Before we look at the potential for liability of the local superintendents, we believe there exists a legal question not explicitly asked by you but one we cannot ignore. That question is whether EKEDC, as an entity, enjoys sovereign immunity since it was formed through the legal device of an interlocal cooperation agreement by public agencies which are sovereignly immune. Looking narrowly and only at the agreement in question, we believe EKEDC, as a separate administrative entity, would be subject to the doctrine of sovereign immunity. EKEDC is an arm of the respective school systems. It was formed to conduct jointly what the local school systems have a right to do by themselves. Under KRS 65.240(1)
"Any power or powers, privileges or authority exercised or capable of exercise by a public agency of this state may be exercised and enjoyed jointly with any other public agency of this state. . ."
The local school districts are not relieved of any responsibility imposed on it by law by entering into an interlocal agreement. KRS 65.260(1).
As to your questions relative to the potential liability of the local superintendents who comprise the Board of Directors of EKEDC, we believe each superintendent may be held liable for the commission of an act or omission to take action regarding EKEDC matters which is a legal cause of injury to another. That is, each superintendent would be subject to liability for negligent conduct or otherwise wrongful conduct for his personal actions and dealings with EKEDC affairs.