Attorney General Opinion No.
Background
- KTCA imposes government liability for negligent acts of employees within scope of employment, and generally excludes independent contractors.
- Question presented: whether a Kansas Dental Board (KDB) board member, a specialty committee member, or a paid dentist contract investigator who testifies as an expert witness in a disciplinary hearing falls within KTCA coverage.
- KTCA defines 'employee' broadly to include officers, members, and others acting for a governmental entity in official capacity, with limited exclusions for independent contractors.
- Right-of-control test governs whether an actor is an employee or independent contractor; case-by-case analysis; no absolute rule.
- It is unusual and potentially problematic for a board member to serve as an expert witness in proceedings before the board, with due process concerns noted.
- Conclusion: a KDB member who testifies as an expert may be covered by KTCA if within KDB authority; specialty committee members and paid contract investigators generally act as independent contractors and are not KTCA-covered.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are KDB board members KTCA employees? | Wright contends board members act as employees for KTCA coverage. | Schmidt argues board members are employees only if the statute and facts show control and official function within employment. | Board members can be KTCA employees if within KDB authority and employment scope. |
| Does providing expert testimony as a KDB member fall within scope of employment? | Wright asserts such testimony may be within KDB's authority to assist enforcement. | Schmidt cautions due process concerns; status depends on statutory scope and facts. | May be within scope if authorized by KDB; KTCA coverage possible. |
| Are members of a specialty committee KTCA employees when reviewing and testing specialty applicants but testifying as experts? | Wright views them as employees during committee work; later expert testimony should be considered under KTCA. | Schmidt treats such later testifiers as independent contractors when acting as expert witnesses. | Specialty committee members are independent contractors when testifying as experts; not KTCA-covered. |
| Are paid dentist contract investigators KTCA employees when they testify as expert witnesses? | Wright suggests they may be treated as employees if within KDB authority to assist prosecution. | Schmidt concludes they are independent contractors and not KTCA-covered for defense/ damages. | Paid contract investigators are independent contractors; not KTCA-covered. |
| What is the overall KTCA implication for KDB expert witnesses who are board members? | Wright seeks KTCA protection for board member witnesses. | Schmidt emphasizes due process risks and case-by-case analysis; scope depends on authority and facts. | Board-member expert witnesses may be KTCA-covered if within authority; otherwise not, with due process caveats. |
Key Cases Cited
- Mitzner v. State Department of SRS, 257 Kan. 258 (1995) (private contractor consideration in government liability)
- Thoman v. Farmers Bankers Life Ins. Co., 155 Kan. 806 (1942) (statutory construction and employment concepts)
- Adams v. Marshall, 212 Kan. 595 (1973) (administrative fairness and due process principles)
- Tziahanas v. Department of Licensing and Regulation, Board of Psychology, 371 N.W.2d 477 (1985) (impartial hearings and quasi-judicial conduct)
- Pork Motel, Corp. v. Kansas Dept. of Health and Environment, 234 Kan. 374 (1983) (administrative agency powers and duties context)