Request By:
James H. Molloy
Executive Director, Division of Disaster and Emergency Services
Department of Military Affairs
Frankfort, Kentucky 40601-6168
Opinion
Opinion By: Chris Gorman, Attorney General; Ross T. Carter, Assistant Attorney General
You have presented the following questions to the Attorney General:
1. Does the Governor, other state official or a county judge-executive or mayor have specific authority to order evacuation when deemed necessary to save lives, prevent injury or to protect public safety?
2. Does the Governor, other state official or any local official have authority to remove individuals or groups by force based on imminent threats to life and safety? If so, may this authority be used to require individuals to evacuate residences or businesses in time of emergency?
3. What liability is incurred by a public official in ordering and enforcing evacuation? For example, to what extent is a public official who orders evacuation liable if people ordered to evacuate are injured while doing so? In addition, to what extent is a public official who orders or forces evacuation liable if evacuated homes, businesses or other property are damaged during the absence of the owner or resident?
KRS Chapter 39, entitled Disaster and Emergency Services Management, provides public officials with authority to respond to emergency situations by exercising certain powers termed "disaster and emergency response. " That expression is defined in KRS 39.401 to include among other things "evacuation of persons . . . and other functions related to effective reaction to a disaster or emergency situation, together with all other activities necessary or incidental to the preparation for and carrying out of the foregoing functions." Authority to initiate disaster and emergency response is granted to the Governor, mayors, and county judges/executive in KRS 39.408 and 39.409. Therefore the answer to your first question is yes.
The excerpt from KRS 39.401 quoted in the preceding paragraph indicates that the authority granted under the statutes should be construed liberally. We believe that by granting officials the authority to conduct "all other activities necessary or incidental to" the enumerated functions, the legislature has authorized the removal by force of individuals who refuse to comply with evacuation orders. Therefore the answer to your second question is yes.
With respect to liability for official acts in connection with emergency and disaster response, KRS 39.433 provides an exemption from liability, except in cases of wilful misconduct, gross negligence, or bad faith, to the state, its political subdivisions, its employees and agents, and volunteer or auxiliary disaster and emergency services workers. Therefore the answer to your third question is that there is no liability if the official is not guilty of wilful misconduct, gross negligence, or bad faith.