Defenses: Qualified official immunity (sovereign immunity)

From Faulkner v. Greenwald, COA, Published 3/11/2011

Summary judgment is proper when “the pleadings, depositions, answers to interrogatories, stipulations, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” CR2 56.03. With regard to qualified official immunity, “[s]ummary judgments play an especially important role”, as the defense renders one immune not just from liability, but also from suit itself. Rowan County v. Sloas, 201 S.W.3d 469, 474 (Ky. 2006) (citing Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)). The material facts in this case are not in dispute. We must decide, as a matter of law, whether Greenwald was properly held to possess qualified official immunity and consequently entitled to judgment as a matter of law. See Sloas, 201 S.W.3d at 475.

Sovereign immunity has been defined as “an inherent attribute of a sovereign state that precludes the maintaining of any suit against the state unless the state has given its consent or otherwise waived its immunity.” Yanero v. Davis, 65 S.W.3d 510, 517 (Ky. 2001). Sovereign immunity, in Kentucky, derives from section 231 of the Constitution of Kentucky. This immunity has been extended to public officials who are sued in their official capacities. Yanero, supra, at 519.

A board of education is an agency of state government, and as such is possessed of governmental immunity. Schwindel v. Meade County, 113 S.W.3d 159, 168 (Ky. 2003). “[I]t can be sued for damages for the tortious performance of a proprietary function but not a governmental function.” Id. A governmental function is one that is integral to state government whereas a proprietary function is one that is engaged in for profit. Id. It has been held that interscholastic athletics is a governmental function and that “[t]he receipt of income from admission fees and sales of refreshments . . . [does] not convert [an] interscholastic athletic event into a proprietary function. Id. (citations omitted). Accordingly, it appears as though JCBE was properly granted summary judgment as a matter of law. However, Faulkner’s appeal does not challenge the appropriateness of summary judgment in favor of JCBE, but rather the appropriateness of summary judgment in favor of Greenwald, the athletic director.

The trial court granted summary judgment in favor of Greenwald by application of the qualified official immunity doctrine. To determine when public employees are subject to immunity, courts have identified two classes of acts, discretionary and ministerial, as pivotal. See, e.g., Yanero, 65 S.W.3d 510. Public employees are afforded immunity for their discretionary acts performed in good faith and within the scope of their authority. Id. at 522. On the other hand, employees are not immune from suit for the negligent performance of a ministerial act. Id.

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The distinction between discretionary and ministerial acts has been defined in Kentucky law as follows:
[d]iscretionary or judicial duties are such as necessarily require the exercise of reason in the adaptation of means to an end, and discretion in determining how or whether the act shall be done or the course pursued. Discretion in the manner of the performance of an act arises when the act may be performed in one of two or more ways, either of which would be lawful, and where it is left to the will or judgment of the performer to determine in which way it shall be performed.
Collins v. Commonwealth of Ky. Natural Resources and Environmental Protection Cabinet, 10 S.W.3d 122, 125 (Ky. 1999)(citations omitted).
A ministerial act, on the other hand, is one that requires only obedience to the orders of others, or when the officer's duty is absolute, certain, and imperative, involving merely execution of a specific act arising from fixed and designated facts. That a necessity may exist for the ascertainment of . . . facts does not operate to convert the act into one discretionary in nature.
Sloas, 201 S.W.3d at 478 (citations omitted). “However, an act is not necessarily taken out of the class styled “ministerial” because the officer performing it is vested with a discretion respecting the means of method to be employed.” Collins, 10 S.W.3d at 125-26.


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