Rowan County v. Sloas

the child was to live with interest of best Appeals re-

the mother. The Court

versed, but this Court reversed the Court trial upheld the court’s Appeals Taylor, here the record

decision. As support the

provides sufficient evidence

Boyd keep Circuit Court’s decision custody

child in of her father. There simply abuse of discretion. no upon presented,

Based the evidence court her interest was

trial found best Appellant. That

better served with the It have affirmed.

decision should been respectfully I dissent.

was not.

ROACH, J., joins this dissent. COUNTY, Kentucky; Don

ROWAN

Hall, Individually Capacity and in His County Jailer;

as Rowan and Paul

Henderson, Individually his Ca-

pacity County Deputy Rowan as Jail-

er, Appellants, SLOAS, Appellee.

William

No. 2003-SC-000938-DG. Kentucky.

Supreme Court of

Sept. 26, 2006. Sept.

As Corrected Suit,

Frank McCartney, H. McCartney Price, & Flemingsburg, William Warner Roberts, Watkins, Morehead, Roberts & Appellants. Counsel for Miller, Robert W. Robecca K. Phillips, Grayson, Counsel for Appellee. SCOTT, Justice.

The Appellee, (Sloas), William Sloas incarcerated the Rowan County Jail December 1997 being after convicted of a fourth operating offense of a motor vehicle while alcohol, under the influence of KRS 189A.010, possession and of a controlled substance in degree, the first KRS 218A.1415, D both Class felonies. He was released four months later on April 1998. time,

At the County Rowan operated a jail work program, commonly referred to as the D Program,” “Class Work under prisoners state could volunteer to county work on certain projects under the supervision county jail. Pursuant to (and 532.100(4), D Class now Class C) may felons serve out their sentences in county jail. According Hall, Appellant, Don (Jailer), County the Rowan Jailer the work program already place when he was elected in It 1994. later into being evolved called the D Program.” “Class Work The program generally consists of six state prisoners supervision under the depu- of a ty jailer. They on county work various projects, generally request at of a county head, department such as solid waste, times, or the road department. At however, they jobs assigned are at request County Judge/Executive Magistrates. various Ninety-per- and/or time, however, cent of work clean- ing up roadways trash beside the for the County, along sued Rowan department. In return for Sloas then solid waste Henderson, alleging and work, each Jailer prisoner paid their state of staff training day by negligent supervision per the Commonwealth $1.25 implementation of prisoners And minor inci- without Kentucky. other than The Jailer dents, adequate safety procedures. hurt no one had been on the ever is, sued in both January and Henderson were program, until The capacities. individual program for volunteered Sloas liability for included vicarious claims also January January 21, 1998. On around in- negligence of Henderson and he and five other state were mate, Carl Lewis. clearing trees working brush and discovery, the Rowan clearing project Following limited roadside summary judgment request Magis- granted Circuit Court department road County on supervised on all for Rowan They trate Nick Caudill. claims: jailer, sovereign immunity; for the deputy grounds Paul Henderson (Henderson), ca their official normally supervises who Jailer and Henderson im pacities a on absolute official program. deputy grounds Henderson had been and, jailer munity; 1990 in for the Jailer and Henderson charge since and had been program capacities, grounds in their on the work since 1995. “Hoss” individual Johnson, the department, immunity. appeal, the official qualified with road On summary affirmed helping. brought Appeals was also a truck and Court the He and “chip up” judgments County a with in favor of Rowan chipper which to the they trees in favor Jailer and Henderson brush and cut. capacities, their official see Schwindel by hit a faffing Sloas was that afternoon 159, 163, 169 County, Meade tree, inmate. cut down another At the summary judg (Ky.2003), reversed the but time, standing he was on the road next to and ments as the Jailer Henderson to said, chipper, “it figuring, as he capacities, reasoning that their individual However, place” the safest to be. Carl fact issues of material genuine “there are Lewis, tree, cut the visually who said he statutory regard to whether Sloas’ with cutting, the area started cleared before he that rights a manner were violated just he as he up then when looked finished part would tend to show ‘bad faith’ on there, cut, saw standing the last he Sloas of Hall Sloas v. Rowan and Henderson.” light trying cigarette. Henderson al., County, Ky., et No.2000-CA-0000560 said, like in his pock- “it looked he reached MR, 10, slip op. at 2003 22149322 WL et he get cigarette out and then didn’t 2003). 19, (Ky.App. Sept. just lit and he over like he have it walked boy granted discretionary review and asking light. that We Paul] [John I decision they Appeals all hollered too. now affirm the Court Then hollered County, regarding time came as well as the tree down.” Rowan About ca- official Ap- broken the knee. Jailer and Henderson their leg Sloas’ was below against their decision pacities, and all but reverse propriate treatment was rendered individu- the Jailer and Henderson paid medical bills were Rowan material is- capacity al as there were no County. He was last seen doctor faith,” 1998, 21, regarding “bad released from sues fact April on and was thus, 28,' jail were entitled April on 474

immunity.1 munity suit, is, immunity as an from action,

from the defending burdens of I. SUMMARY JUDGMENT merely just immunity liability. from 511, Summary judgment Forsyth, 526, Mitchell v. 472 appropriate “if U.S. 105 2806, pleadings, depositions, (1985); S.Ct. 86 411 answers to in- L.Ed.2d see also Katz, terrogatories, stipulations 194, 200-01, Saucier v. 533 admissions U.S. file, affidavits, together (2001); S.Ct. any, if L.Ed.2d 272 cf. genuine Lexington-Fayette show that there is no County issue as to Urban Govern Smolcic, any material fact ment moving par- and that the (Ky. 2004). ty is In judgment entitled as a the attainment goal, matter of of this how ever, law.” CR 56.03. we differ from the federal standards significant one aspect. However, we have also said that sum- mary judgment only proper “where the Fitzgerald, Harlow v. 457 U.S. movant party shows that the adverse could 816-18, 102 S.Ct. 73 L.Ed.2d 396 prevail under circumstances.” (1982), the Supreme United States Court Steelvest, Center, Inc. v. Scansteel Service rejected subjective, “good faith” test Inc., (Ky.1991). Yet, for immunity, “objective in favor of an recognized we have that “a party opposing reasonableness standard” designed to a properly supported summary judgment avoid many subjective factual issues so motion cannot defeat that motion without permit early as to resolution of as presenting at least some affirmative evi- many qualified immunity possible issues as demonstrating dence genu- there is a trial, prior typically by summary judg- ine issue of material fact requiring trial.” 818, ment. Id. at 102 S.Ct. 2727. “[Sub- Johnson, 169, Hubble v. 841 S.W.2d 171 jective faith, good intent [or is a factual (Ky.1992). so, If the trial court must then question rarely that] so can be decided view the record “in light most favorable summary judgment ... may entail [and] party opposing the motion for sum- broad-ranging discovery and the deposing mary judgment and all doubts are to be of persons, including numerous an official’s Steelvest, resolved in his favor.” 807 professional colleagues, normally [and re- at (citing S.W.2d 480 Dossett v. New York quires resolve],” 816-17, a trial to id. at Mining Co., Manufacturing 451 2727, 102 S.Ct. not to mention the social (Ky.1970)). S.W.2d 843 costs attendant protracted litigation.2

Summary judgments We, however, play especially subjective still maintain the important dealing role when good with element of jurispru- immuni- faith our ties, as qualified we also view official Im- dence.3 resolute, parties

1. None of the briefs of the addressed irresponsible [pu- most or the most regarding County, the issues officials], Rowan the Jailer unflinching discharge bic in the of " capacities, Henderson in their official Britton, their duties.’ v. 523 Crawford-El either; we thus will not address them 12, 1584, U.S. 591 n. 118 S.Ct. 140 portions than to state that we affirm those of (1998) (citation omitted). L.Ed.2d 759 Appeals Opinion. the Court of did, however, adopt 2. "objective 3.Yanero expenses "These social costs include the of unreasonableness” test oí Harlow in consider- litigation, energy the diversion of official from arising solely ation of issues of "bad faith” issues, pressing public and the deterrence of Yanero, from the fact of a violation. 65 acceptance public able citizens from of office. S.W.3d at 523. Finally, danger being there that fear of 'dampen sued will ardor of all but the

475 in the person afforded to a holds official sued known was “Yanero that an ‘enjoy[s] ... or if the officer capacity position or her individual plaintiffs only af immunity, willfully maliciously which intend- qualified employee ... judg faith protection good plaintiff fords or acted with to harm the ed in a uncertain legally ment calls made motive. corrupt ” County Fiscal environment.’ Jefferson at 65 S.W.3d Peerce, (Ky. 132 833 Court v. Thus, “good jurisprudence, our under 2004) Davis, v. (quoting Yanero 65 S.W.3d dependant.4 fact faith” is still times Thus, (Ky.2001)). 510 are not “[officials ... immuni- difficulty “[T]he areas,” guesses Ma gray hable for bad [however,] has not articulation ty been (4th Sumner, 973 ciariello v. F.2d 298 it.” rule, application but rather the denied, Cir.1992), 1080, 113 cert. 506 U.S. Monroe, 17 F.3d City Flatford (1993), 1048, 122 L.Ed.2d S.Ct. 356 Cir.1994). (6th and un- difficulty This 166 not ex government officials are “[m]ost someday certainty application may pres- pected legal engage ‘the kind line,” for a but age “bright the need normally with law scholarship associated today. ” professors and academicians.’ 1A Martin however, material Ultimately, once the Schwartz, Litigation: A. Section 1983 resolved, (4th particular facts are whether § Claims and 9A.09[B] Defenses ed.2006) (citation omitted). immunity protected by official “quali defendant is law, County Fis immunity question fied protects plainly ‘all but the Jefferson Peerce, 824, 825 incompetent knowingly or those who vio cal Court ” late novo. Es Creighton, (Ky.2004), the law.’ Anderson v. review de 635, 638, 3034, 3038, rel. v. Daviess U.S. S.Ct. ex Mitchell tate Clark (1987). (Ky.App. County, L.Ed.2d 2003). or employee “Once the officer has shown

prima-facie performed act was II. THE YANERO TEST FOR scope within the of his/her QUALIFIED OFFICIAL authority, plaintiff the burden shifts to IMMUNITY or establish direct circumstantial evi- not discretionary dence that the act was Yanero, public officers Under performed good faith.” Yanero v. “qualified are employees and entitled Davis, (Ky.2001). 65 S.W.3d immunity” conduct negligent however, faith,” of a “Good is somewhat were negligent act or omissions when misnomer, proof really (2) as the of “bad is (1) functions, acts discretionary or fact, cases, In in most faith” “good (i.e. faith.” good were were made faith just absent presumption that exists faith”), (3) within made “bad were faith.” evidence of “bad authority. scope employee’s Yanero, Conversely, at no predicated a viola- 522. faith can be on [B]ad constitutional, negligent per [causally immunity is afforded for the tion of related] act, or omissions a ministerial statutory, clearly or other established formance of willfully employee if officer or person public employ- right plaintiff maliciously have intended to harm position presumptively ee’s would ruling question. property making waited its final the trial court here on necessary discovery before limited on the motive, i.e., or acted corrupt again with a using ods for said tools before distributing them, the “bad faith” element. Id. at 523. And showing the inmates how to the officer or employee “[o]nce has shown stay out way other inmates of fall- prima performed trees, the act was ing by returning to the same facie within the scope discretionary course of conduct the afternoon his/her instead authority, the plaintiff burden shifts to the taking precautionary measures al- establish direct or circumstantial evi- leged necessary as the injury after and the dence that discretionary act [was morning. accidents of the The accidents n (1) bad Id. faith].” referred morning,’ one neighbor’s mailbox, tree knocked down a instances, however, all there (2) (on Sloas, leg ‘nicked’ his a barbwire must a causally be related “violation of a fence), inmates, one of the other constitutional, statutory, or clearly Billy Blackford, had a chainsaw kick back right” complainant. established Id. him, cutting leg. He alleges further It causally is these related violations or that both Hall and Henderson demonstrat- acts which are against measured the stan ed personal wrong doing by failing to ade- dards or ministerial quately supervise the inmates.” Vicarious duties, not the myriad distant acts or omis liability alleged. is also sions that logically one could construct to preceded have them. one far “[I]f retreats allegations As to the of vicarious violation!, enough from a ... a distant act liability, persons entitled official immu or omission] can be identified al behind nity vicariously cannot be held liable for most such harm .... inflicted At the them, negligence employed by of those very least there must be an affirmative if they’ve employed persons of suitable link between act or [the and the omission] 528; skill. Moores ... alleged.” City violation Oklahoma Fayette County, 418 S.W.2d Tuttle, City 808, 823, 471 U.S. 105 S.Ct. (Ky.1967). explained We this rationale in 791(1985). 2427, 2436, 85 L.Ed.2d Williams v. Kentucky Department Edu cation, (Ky.2003): III. THE CLAIMS liability” principle The “no vicarious rec- In order to right(s) alleg- determine the ognizes entity that an otherwise immune violated, edly look Appellee’s merely does not lose that status because memorandums, complaint, depositions, agents held [his] or servants can be briefs, as previous opinions. well as From negligent performance liable for the apparent, this it alleges Sloas that the Otherwise, their ministerial duties. “duty Jailer had a to exercise reasonable governmental there no immuni- could be care to ensure that harm does not occur to ty agencies perform because state their an inmate” and “to deputy ensure that his governmental through and functions jailers trained, adequately are managed, agents, employees. and servants supervised.” Further, and “jailer that Id. at 154. Hall ... negligence ratified who, by instance, Henderson not providing supervi- In this there is no evi sion of inmates when were in posses- dence that lacked suitable skill Henderson power readily sion of tools which employed. could be when he He had been a used in such a in- deputy jailer years fashion to harm other nine as of for almost mates, (before training the inmates or dem- the time of the Jailer this incident elected) onstrating to proper the inmates the meth- supervised was ever and had

477 in the Discretion pursued. the course since 1995. Program” D “Class Work an act performance of the that manner Moreover, the first time this was not may performed be the act arises when cut beside program had brush the work ways, either of which more one of two or an there had never been and highways, lawful, it is left to and where would be Although there like this before. injury performer judgment the will can be sub- authority public that a officer per- way it shall be in which determine hiring liability tort ject personal formed. officer to be known to that employee hired, for which for the task incompetent Ky. Natural Collins v. Commonwealth of prospective of a evaluating the credentials Protection Environmental Resources inherently subjective pro- is an employee Cabinet, (Ky.1999) 125 10 S.W.3d discretionary function. and thus a cess Malone, Ky. v. County, (quoting Franklin Yanero, being That 65 at 528. S.W.3d (Ky.1997), 201 reversed 957 S.W.2d said, liability can be no vicarious there Davis, 65 v. grounds by Yanero immunity, immunity if pierces (Ky.2001)). 510 S.W.3d not, then, If applicable. found to be discretionary acts examples Further course, liability a consid- vicarious could be (6th Green, F.3d 793 239 Minger are aside, But this the Jailer did eration. Cir.2001) (holding implementation that the Henderson, predecessor did. hire public security system by director of a left with individual claims we are a discre- university safety at negli- and Henderson of against Jailer States, function); Hall v. United tionary im- insufficient or gent supervision and/or (6th Cir.1983) (holding that 704 F.2d 246 proper training prison- of staff and state jeopardy is within the the determination ers, as, claim potential as well one further Di- District acting IRS discretion Appeals rights raised Court —the Gee, rector); Fed.Appx. Burnette v. 137 unduly assigned not to “to of an inmate be Cir.2005) (6th investi- (finding that the endanger that would hazardous work and his attempted a man’s suicide gation of prisoner or health of the or others.” life discretionary rather than seizure was 441.125(3). act); Stratton v. Common- ministerial claims, wealth, (holding in mind the we can more Having (Ky.2006) alleged conduct its appropriately subsequent evaluate actions Cabinet’s discretionary or causally allegations both and as to its investigation into initial discretionary); ministerial nature. child was abused Holmes, (Ky.2005) Lamb v. 162 S.W.3d IV. DISCRETIONARY (finding that the actions of teachers/admin MINISTERIAL OR dis searching students were istrators functions are Discretionary nature); acts or County cretionary Jefferson involving Peerce, the exercise of discretion “those Fiscal Court deliberation, judgment, personal county judge/exec (holding that (Ky.2004) decision, judgment....” former to terminate utive’s decision have also said at 522. We discre officer was department corrections those discretionary duties are Inc. v. Greenway Enterprises, tionary); (Ky. 298 Frankfort, 148 S.W.3d City necessarily require the exercise as Manager City (holding that App.2004) a adaptation in the of means reason Director, City to advising in end, determining and Sewer and discretion system current was deny until the hookups or the act shall be done or whether how 478

repaired, function); Stratton, a discretionary was And supra, we noted Estate Clark ex rel. Mitchell v. portions Daviess of the investigative re County, 105 S.W.3d 841 (Ky.App.2003) sponsibilities as in regulations, set out (holding that the particular directive, decision of the Daviess which were in their County Court, ministerial, engineers, others, Fiscal but we noted that required road foreman respect judgment, to whether and the exercise of portion investigations how a of a certain were not. “Such do guard road was have cer using guardrails statutory ed tain mandated warning signs requirements was as function); interviewed, etc., shall discretionary v. who be James Wil but [after son, they this] 95 875 also involve (Ky.App.2002) (holding discretionary S.W.3d deci workers, just sions the case safety police enactment of rules is a as in discretionary investigations. After performing function for which school em liable); duties, ployees could not Thomp be held ministerial the case workers must Huecker, action, son v. if any, 559 S.W.2d 488 determine what (Ky.App. should be ” 1977) (holding that the taken to re-employment of resolve each claim .... Id. at function). plaintiff ministerial, discretionary part The first but discretionary.

what followed was held to be act, A Furthermore, ministerial on the other rule-making inherently is an hand, requires only is “one that obedience discretionary function. 65 S.W.3d others, Yet, the orders of or when offi at 529. have held that enforce absolute, duty certain, cer’s is and impera safety ment of a well known rule for tive, involving merely i.e., specif ministerial, execution of a “batting helmet” rule ic arising act from fixed designated And, Yanero. Id. at 529. as we have necessity may facts. ‘That a exist for the said: of ... oper

ascertainment facts does not [evaluating the a prospec- credentials of ate to convert the act into one discretion employee subjective tive an inherently ” Yanero, ary nature.’ 65 S.W.3d at 522 which, course, process is the essence (internal deleted). citation However, function. aspect there is also a ministerial example, For v. Collins Common hiring process person per- that the Ky. wealth Natural Resources and En hiring sons to whom the of subordinates Cabinet, vironmental Protection attempt is entrusted at must least 122, 126 (Ky.1999), the court noted incompetent. hire someone is not who regulations specifically required that “[t]he Id. at 528. water control structures for the roads be designed discharge capacity with a capable examples Further of ministerial acts are Valentine, of passing peak 10-year, runoff from a Roberts v. ex rel. 176 U.S. U.S. precipitation major 24-hour event.” “The S.Ct. L.Ed. 443 ity in inspecting drainage (holding duty Collins held cul that the of the treasurer of regula verts to assure conform to the pay pursuant the United interest States tions does not require any ‘significant Congress, to the act of was a ministerial judgment, statutory interpretation, poli duty); Lipscomb, Morrison 877 F.2d ( Cir.1989) cy-making regulations decisions’ and the (holding 6th that a clerk ‘routine, could be enforced in a implementing ministerial an order at direction of the ” Commonwealth, act); manner.’ judge Stratton was ministerial Barnes v. Cir.1973) (acts ( (Ky.2006) (quoting Dorsey, 480 F.2d 1057 8th 126). Collins, performed a court clerk are ministeri-

479 Here, how- humanely”). Lathram, 50, treat them al); 53 shall v. 150 S.W.3d Jones ends, chil- ever, managing (“act similarity as safely driving police a (Ky.2004) ’ pris- managing like “ain’t nuthin” dren cruiser, emergency, in an is not an even oners. requires any delibera typically act that ministerial); v. it is Williams tion”—thus [then], liability, depends “Ultimate ( Educ., 113 S.W.3d 145

Kentucky Dept. of of each particular circumstances upon the Board of Edu Ky.2003) (compliance with White, 33, 621 S.W.2d v. case.” Sudderth a ministerial cation Code of Conduct was Franklin see also (Ky.App.1981); 35 Inc. v. duty); Contracting, Kea-Ham Malone, 957 S.W.2d County, Ky. v. Authority, 37 Floyd County Development (1998), grounds by on other 200 reversed ( (erroneous convey Ky.2000) S.W.3d 703 Davis, (Ky.2001). 510 Yanero information chairman of ance of jail And, involving incident single tragic “a financing that interim development agency to a is not sufficient establish personnel project had been obtained was ministe training,” Franklin inadequate claim of error); County, Upchurch rial Clinton (citing City 200 County, Ky., 957 S.W.2d ( a Ky.1959) (employing 330 S.W.2d 428 Tuttle, City v. 471 U.S. Oklahoma establishing dog pound dog warden and a (1985)), 2427, L.Ed.2d 791 and 105 85 S.Ct. duties); Bronaugh v. were ministerial prevent to duty ordinary care “[t]he (Ky. Murray, Ky. 591 S.W.2d discovery of only upon the arises [harm] 1943) (duty require of school board to a reasonable fact would lead some carry liability in operators school bus to likelihood there is some person to believe ministerial). surance was Ky., 957 injury.” County, ... Franklin at 200. S.W.2d Cooper noted in Yane- Justice As ro, juve assigned superase societies, line, to “[t]eachers In there is a or all school-sponsored curricular or during “seam,” niles appropriate conduct between duty extracurricular activities have it is inappropriate conduct. Sometimes line, degree ordinarily line, or exercise care thin. This broad sometimes “seam,” prudent engaged teachers or coaches law. is defined or established rulings, ... ex this court supervision interpretive of students would And our define, inadvertently clearly or ercise under similar circumstances.” can more line, “seam,” obscure, move the or premise at 529. The or even society. in our characterizing conduct duty compelled for this is that a child is every always realize that Admittedly, a more we should attend to school. Id. make, define, we ob ruling incar we or “seam” stringent compulsion applies to the effect, scure, jailer adjust, composite has a prisoners as the has cus ceration of small, “efficiency” jail large all on the tody, charge rule and however sense, it society we live in. to KRS 71.020. of the persons pursuant therein society has to note that And, duty important on a imposes law “[t]he (and looking) pro for alternative ordinary looked jailer to exercise reasonable in corrections area with consis grams diligence prevent care and unlawful and rehabili custody, objectives punishment placed in his tent jury prisoner to a incarceration tation in order to lower our charged negligence but he cannot be are at issue programs, as he could not rate. Work failing prevent what Clark, here, of these initiations. are at the front Lamb v. reasonably anticipate.” (1940.); stake the fortunes Having great Ky. tomorrow, be inclined should not also, (stating that “[he] KRS 71.040 see hinder, unduly you buy fashion rules that or im- chainsaws. Chainsaws that can solutions, pede, store, an honest search for ab- many people hardware the command of law. many sent operate and of which have had “kick- imagine backs.” One would there are Here, program we have a road that has many things you might other think about operated by County many been Rowan for managing while a work crew six state years. voluntary, prisoner It is thus no is prisoners, but what has been set out is to do for which are forced the work enough. discretionary It is as a task as per day by the paid Commonwealth $1.25 children, one could envision. No school no Kentucky. prior years In the academicians, college professors or but program, injury there had never been highway on a prisoners state with one (other ones), though than minor even jailer. deputy prior brush and trees had been cut on generally occasions. The Moreover, angling even one tree side- but, trash, picking up worked from time to ways being knocking after cut and over a time, given by other directions neighbor’s good harbinger mailbox is not a County Judge Magis- Executive and/or warning your that one of crew is going it trates. this case was to clear the by “chipper” get to amble over hit along brush this road. by many falling a tree. There are reasons bushes, a Here there were lot small wrong way, yet a tree could fall the trees, obviously big- small a few some speculate. evidence would leave us to And ger ultimately trees. The one involved likewise, a the “kickback” from saw blade in height, primeval was 20-30 feet put person would not a reasonable on no- by any means. The brush on a timber was prisoner going tice that one state road —the bank beside and above the road walk over to the other side of the road but, safe, one side was “chipper” a tree fall on narrow — where would maybe, maybe people not. Several aware, him—of which he will never be side, were on the at least or more safe one “just cigarette things or not. Sometimes cutting were still brush or trees on the happen.” admission, bank. And his own As to the stricture into an area that soon

plaintiff walks will 441.125(2)(6), prisoner that “no shall be tree, falling yet be “brushed” unduly that assigned to hazardous work plaintiff somehow is of the cir- unaware endanger would the life or health of the going cumstances around —or others,” prisoner say, or suffice it to matter, above him. everyday people every day chain — —use man, Henderson, year depu- a nine One trees, including brush and cutting saws ty jailer, charge crew. He this has be, prisoners. Dangerous it can but “un them, try as best he can to to watch duly dangerous,” it is not. do, they might correct anticipate what too, training of the staff and necessary, capa- them as determine their And bilities, by asking prisoners, them forth- under the evidence sometimes case, job, act they can or can’t do the hand right whether alleges possibly or assign the duties and see that the work is function. Sloas Lewis, cut the tree that fell on somewhat similar to Carl who performed. Work him, chain do around his house or didn’t know how to use a saw work one would tree, really farm, cut a admits that he didn’t cleaning brush or trees off bank but The from Lewis’ de- day out of a field. done this know. evidence Carl Work faith,” necessarily position contrary quired focuses on “bad is to had used —he “good and cut trees and for than faith.” chainsaw brush rather years. admits Even Sloas that Henderson will employee the officer or “[I]f only assigned a chainsaw to those that told maliciously to harm the fully or intended them, including him to knew how use motive,” plaintiff corrupt or acted with a admits he to use a Sloas—who knew how Yanero, 65 in “bad faith.” he acted This makes it all more as- chainsaw. the Cottongim at 523. See also S.W.3d that he wasn’t at tounding paying attention Stewart, 171, 176 Ky. 283 142 S.W.2d the could how surely time. One wonder (1940)(“Nevertheless, [they] no doubt you respond legally would ever Sloas’s blindly ig in offing, sinister motives the allegations that there failure in the was a ”). — legal nored the law advice training program since inmates were the Cases are indeed rare where one admits stay way not how to shown out the of of motive. improper falling just goes inmate’s trees. It case, often As is most the the establish- just things you show there are some upon proof ment of “bad faith” occurs people can’t train for. But that doesn’t “clearly right” of violation of a established circumstances, training, make under these “a in plaintiff, person public the Ministerial training ministerial. is where position presumptively would employee’s you are mandated train to avoid the in person was to a have known afforded event that occurred. This not the case was i.e., objective un- position, the defendant’s here. Yanero, ...” 65 at reasonableness S.W.3d Thus, functions, conclude acts, or for omissions which Hall and in example, For v. Beau Spillman are faulted in Henderson fact discre- it champ, (Ky.1962), 362 S.W.2d tionary functions. Kentucky De appears employees partment Agriculture killed a farmer’s V. THE GOOD FAITH/BAD cow, protests, thinking it was over FAITH ELEMENT may it Al diseased when not have been. As in implicit was discussions killed, it circuit legedly, before was Yanero, faith” “good most often exists it court had found was not diseased faith,” upon absence of “bad attendant killed, thus, course, be if the not to “Of proof that the act or in question function they will allegations are true foregoing discretionary and in the course and personal liabil imposing furnish basis scope official, public employees, or officer, ity upon allega because Yanero, public duties. at 523 S.W.3d faith, good tions show a lack of an absence (“Characteristically, the Court has defined grounds for the officer reasonable by identifying these elements the circum- diseased, cow to and the believe the be qualified immunity in which would stances legal flaunting existence of a deliberate available.”). be “Once the officer rights.” Id. at 37. prima has shown that the employee facie accept act performed scope right within the For a violation to be faith,” rights authority, the burden evidence of “bad able as his/her however, “clearly estab plaintiff shifts to the establish direct violated must be County Fiscal circumstantial evidence that the discre- lished.” See Jefferson Peerce, (Ky. tionary performed good act was Court 523). 2004) proof (citing faith.” Id. at 523. re- Thus, the factual context of the occurrence made scope outside the course and exemplify “‘legally must not uncertain official or public employee’s authority, but environment’ which official im- within what was believed to be the authori- Peerce, munity appropriate.” Peerce, ty implicit as was supra, as at 834. discussed later. recognition “legally The of a uncertain Here, reversing the trial court’s sum- environment” as established in Yanero and mary judgment, Appeals the Court as- explained in important Peerce is genuine serted “there are issues of mate- the [b]ecause focus is on whether the regard rial fact with to whether Sloas’ officer had fair that her notice [This] statutory rights [under 441.125] unlawful, conduct was [the] reasonable- were violated in a manner that would tend judged against ness is the [of which] faith’ part to show ‘bad on the of Hall and backdrop of at the law the time of the Henderson, thereby rendering summary conduct. If at the law that time did not Sloas, 10, judgment improper.” slip op. at clearly establish the officer’s [or In support 2003 WL 22149322. of its de- employee’s] conduct would violate the cision, the court stated: [law], subject the officer should not be to Legislature has specifically [T]he re- or, indeed, liability the even burdens of quired jailer the to physi- “consider the It litigation. important emphasis is to ability prisoner” cal and mental inquiry that this must be undertaken specifically prohibited jail- and it has the case, light of specific the context of the from assigning “unduly er an inmate to not general proposition. as a broad endanger hazardous work that would the Brosseau v. Haugen, 543 U.S. life or prisoner health of the or others.” 596, 599, 125 S.Ct. 160 L.Ed.2d 583 Thus, participating an inmate the (citations omitted). program given work has been [Class D] In respect, adopted this Yanero the “ob- a statutory right assigned not to be to jective reasonableness test” of Harlow in unduly work that hazardous. This consideration of violations as evidence of statutory jailer right includes not Yanero, “bad faith.” 65 S.W.3d at 523. subjecting endangerment to inmate Thus, subjective there is no true test for of his life or health the work of element, post as there is for prisoner. jailer another The must also corrupt willful or motive. properly physical consider the and men- inquiry make this ... in light “We tal of all the who abilities are information that pos- the defendant official working program in the and the nature ques- sessed at the time of the incident in prisoner. assigned of the work to each cognizant tion ... of the fact that clear, a violation of As Yanero makes hermetic, public generally officials are not statutory rights one of could lead these ivory-tower vagaries scribes versed in the finding part to a of “bad faith” on the Kegler City of constitutional law.” jailer, preclude pro- which would Livonia, 173 F.3d WL immunity. qualified tection of official (6th Cir.1999). Thus, finding of a “le- Id. at 2003 WL 22149322. environment,” gally (meaning uncertain established) Hall right clearly alleged was not Sloas has that both [also] only negates statutory the use of a personally negli- Henderson were faith,” may gent by assigning violation as evidence of “bad it work to the inmates justification judgment they perform also be calls 14-15, Id. at injury Appellee.” work properly supervise by failing addition, in his 22149322. Hall stated WL area. prepared he had never deposition that Yet, trial court’s view context of a concerning policy [Class D] written of a facts consideration of the material workers, any writ- nor was he aware of on the summary judgment motion for concerning program. the work policy ten immunity,” it official grounds “qualified

Id. WL out the material necessary separate Moreover, apply only plain- also Appeals the Court of issues of fact which (should erroneously summary judgment was claims survive “summary held tiffs pertinent claims from those that are respect judgment), to Sloas’s granted “qualified and Henderson in their indi- against Hall determination genuine as to whether capacity, immunity.” since there remain issues vidual duty material fact as to Hall Henderson breached issues of whether Hall and inmates, duty to properly assign Henderson breached their to the work inmates, to of the inmates and assign supervise the work to the to the work properly area, inmates, sufficiently and to work supervise provide the work of the to a safe the area.” Id. claims—not to provide sufficiently apply only a safe work to Sloas’s necessary offi- “qualified at 22149322. for 2003 WL considerations they such as to immunity,” unless are cial opinion the of the Court of support evidence “badfaith.” asserts that the Court of Appeals, Sloas correctly recognized following the Appeals employees enjoy officers and “[P]ublic existed, precluded triable issues immunity, which af- ... official summary judgment to Yanero: pursuant damages liability protection fords from of fact as to question

1. Material calls made good judgment for faith Yanero, assign duty properly breach of to work legally uncertain environment.” added). inmates; If (emphasis at 522 S.W.3d so, wrong then the fact of the this were question of fact as to 2. Material immunity, as always obviate the would duty supervise work of in- breach of Trus- initially suggested in Board mates; Kentucky Hayse, University tees question Material of fact as 3. (Ky.1989). And this is the S.W.2d duty sufficiently provide breach of we overruled very point upon which area; and safe work Yanero, 523. at Hayse. question of fact as to Material good carrying faith was used in whether opposite of “[t]he Bad faith is discretionary acts. out faith,’ by an prompted and it is not ‘good Sloas, slip op. at 2003 WL 22149322. rights to one’s honest mistake as duties, or sinister by some interested asserts that Hall and but Appellee The also Dictionary 176 Black’s Law “disregarded evidence motive.” Henderson obvious added). ed.1968) (rev. (emphasis general dan- 4th safety, training of lack of Thus, are not if the facts of the violation with the work ger, when continued a find support as to demonstrate or although at least one such question detail the officer part faith” on the injured ing as a result of “bad other inmate had been performing kick- or cutting [Billy employee Blackford’s of the tree function, alleged violations tree had been cut then ... another back] [and] box; “qualified irrelevant right on a citizen’s mall all before involved down Thus, immunity” however, Appeals implied issues. where The Court of factual issue of faith” in that plaintiffs right the violation of the is itself “bad he had faith,” promulgated right policy speci- one’s evidence of written “bad 441.125(2), established; provid- fied KRS which then clearly violated must be oth- ed, in erwise, part: “objective it would not meet the adopted from reasonableness” test Harlow policy adopted by Pursuant to written quali- Yanero. in the context of jailer, court on advice of the fiscal immunity, fied official faith” can jailer may “bad be permit prisoners certain predicated on a violation of a constitution- community to work on service related al, statutory, dearly projects. or other established right person which a ... presumptuously added). (Emphasis would have known per- was afforded to a 441.125(2), noted, it required KRS son in plaintiffs position. 65 adoption policy written the fiscal added). (emphasis court, jailer, only not the as he advised 441.125(2) policy. them on the how- Against A. “Bad Faith” Proof of ever, years was enacted ten Jailer before prisoners kept state were allowed to be case, only In this decisions the And, county jails long periods. when involving Jailer made Sloas and the other KRS 532.100 was amended in 1992 to es- the decision to Program,” tablish the D “Class subsection participate community allow them to in the specifically provided: 6 thereof D “Class (2) program, service work allowing ... serving jail felons their time in a local Henderson, year deputy, super a nine to prisoners.” Only shall be considered state (3) crew, go vise the work to let them in 2000 was subsection amended to re- in Billy back out the afternoon after Black- jailer which, quire policy, the to write the in, brought having ford had been cut his course, of is now to the fiscal submitted leg when the saw “kicked back” on him. approval. court for its oc- This event Each of these decisions was curred in that for him there was no mandate 532.100(4) hand, On the re- KRS way. decide them either Nor is there an quires agreement between the fiscal evidence the record that a “kickback” department court and the corrections in saw, here, from a such as occurred county order the house state prison- for anything unexpected other than a occur ers. The record here does not disclose rence. policy adopted by written the fiscal court 441.125(2); showing pursuant Neither is there a record nor does it the specific agreement required that the Jailer knew where the disclose the between prisoners working day County Kentucky Depart- or the Rowan and the specific assigned prison- County ment of task each of the Corrections for Rowan decision, primary keep prisoners. ers. His which was D” One “Class state purely discretionary, might agreement would ad- use the work assume this program simply at all. There is no “bad dress what the could or could not faith” prisoners. shown his involvement and ac- do with state Nor does the tions, as to exercise an honest record reflect power Department “[t]he the Correc- (CPP) for necessarily power discretion includes a to tions “Policies and Procedures” judgment.” prison programs. make an honest mistake of work Either one exists, they not. 65 S.W.3d at 510. or the other do How- ever, jail if projects was an service outside the author- note that this issue Moreover, discovery. jailer.” also the the Ken- developed ized We upon note that Hall testified he relied the tucky Department opera- of Corrections’ policies Department of Corrections’ in his & tions manual for “CD CC Felons program (Rev. the work administration of March County Housed Jails” prisoners.5 the “Class D” 2005), that: provides part, (2) Two inmates Level One and Level Thus, assuming that the agree community may perform service work County ment between the Rowan Fiscal facility supervision outside the under the Court, jail, Kentucky the and the Depart A supervisors. of trained work Level ment do define the Corrections may perform inmates work outside of scope of state in their the use facility supervision the direct under programs work various and/or jail security Jails staff.... have jailers fiscal all the court members and choosing which discretion of inmates County adopt Rowan have failed to work, that the classifica- provided appropriate policy written since tion of inmates is non-discrimina- by all these continuation of that failure the fiscal then, tory. and jailers including courts since

Appellant’s, proof of faith” offers no “bad Operations CD & CC Felons Manual for under these circumstances. “Bad faith” Jails, Housed in Rev. March County particular must be toward a directed indi Programs at 11. Work vidual, individuals, group set of cir Although it is unknown from record Since Sloas was not a prison cumstances. what was in 1998 Corrections Opera- (1982- during intervening years er those manual, tions the Jailer testified he fol- 1997), the adopt policy by failure to such to him polices provided lowed the previous administrations could not Department of Corrections. have faith” evidenced their “bad towards least, very foregoing At the discus- implication Sloas. There must be some questions surrounding sion indicates the self-interest, indifference, aor deliberate 441.125(2), interpretation the as it motive, or sinister rather than an honest may may prisoners or to state apply not mistake oversight. or Under cir these Kentucky the Depart- under control of the cumstances, there were none. typify ment of Corrections is such as 2:060, Moreover, 1(4), § 501 KAR deal- “legally uncertain environment” procedures jail ing housing for the immunity appropriate. felons, D provided Class “[i]f Peerce, Thus, 834. the vio- custody assigned determined [as may to create or impute lation not be used Department of Corrections] minimum faith.” “bad community, may D partici- the Class felon all, every After fiscal court of Rowan pate programs jail.” offered outside the 6(1) county jailer and thereof 10:130, every § Effective 501 KAR (now 7:130, 5), policy requirement, violation of § titled the written KAR “Prisoner Services,” has Programs; applied assuming if it and there been provides in- “[s]tate while, All policy who no 1982. approved custody mates have an level written since community county magis- be on Judge/executive, shall allowed work conditions, 441.055(1) custody, obligates Department safety and care 5. KRS health to establish standards prisoners. Corrections for treatment jails prisoners, including state that have trates, county department duplicate previous as well as the will not our comments. heads, jobs employing selecting providing place,” As to a “safe work there prisoners at which the state would work. road, is no evidence that this where brush prior public practice, this Given being prison- and trees were cut find no basis to conclude that the Jailer ers, workplace.” “unsafe And we presumptively would have known that he But, disposed are not to hold so. rights by would have violated Sloas’s al- important point is that none of these issues lowing voluntarily him to work on commu- rise to the level of implying “bad faith” nity projects, service absent the written presented. under the circumstances policy, all predecessors as had since every day by Brush and trees are cut violation, if any, would everyday people. practices The habits and support finding an inference or of “bad safely on how to do so are common knowl- faith.” just edge plain and obvious to adults. It’s allowing Nor would his common sense that no one has ever found go Billy back to work after Blackford came way especially a sure when it teach— in for treatment demonstrate “bad avoiding falling comes to adults trees. faith” part. on his As to insufficient train- ing prisoners, for the staff and one must Now, assignment and operation of ask—insufficient for what? There is no chainsaws—under circumstances which did showing in this record that Henderson was question. not exist here —could be a closer insufficiently trained to supervise the Yet, the impor- record here discloses two successfully crew. He had done it for at tant points. only gave Henderson years. Allegations least three are made (by previous chainsaw to those he knew might talking neighbor he have been to a them) experience with could handle them during some the time—but is not Sloas, or to those such as new members proof improper training supervision. who, asked, they knew how when indicated And, you how do train someone to watch Moreover, to handle them. the fact that falling anticipate they out trees or hit that the saw one tree a mailbox and might allega- walk into such areas? This Billy kicked Blackford is not an back simply support tion does not an inference going indication that someone is to walk faith.” of “bad being cut into an area where trees are B. Deputy Jailer Paul Henderson to what is paying without strict attention unfor- happening. It is an unforeseen and Henderson,

As to the Court of tunate incident —but it not an indication is of to Appeals found material issues fact as improper assignment supervision of an or di properly whether Henderson failed to area, of the work such as to indicate some supervise or rect the work crew either faith” injury,” “likelihood of the and “bad (1) cut improperly assigning the tasks of part on Henderson. If an officer the of (2) trees, ting failing properly super the known reasonably or should have “knew work, during vise them at all times would violate a (3) that the action he took failing stay to show them how to out of (4) right plaintiff,” trees, [clearly established] way falling failing pro the of may found to exist. bad faith be place, a “safe work” vide them and/or Thus, any finding of 65 at 523. causing “unduly engage them hazard part, from the already “bad faith” on Henderson’s ous” work. As answers have been case, improper. in this would As given regarding “training falling to avoid facts be work, supervision, “unduly allegations improper trees” and hazardous”

487 acceptable excessive and support no facts der’ between we can find which could Livonia, force.”); Kegler City see also v. finding or belief faith.” such a of “bad (6th 429, Cir. 1999 WL 133110 173 F.3d 1999) SCOPE OF AUTHORITY court VI. that (“Kegler contends collaterally hold that Zoski is should ... determining scope In the immunity arguing estopped qualified from authority, and act official’s whether the courts Michigan criminal upon based the beyond scope, the complained of was This illegal. that the search finding was properly the official issue is whether position, apparent the district court discretionary or exercised his duties merit.”). ly Simply accepted, is without “If these whether he violated law. wrongfulness act put, alleged of one’s inquiries, any illegal ac were the relevant scope general is determinative would, definition, tion fall outside authority. of one’s In re authority.” of an official’s scope (4th Cir.1997). 582, Allen, 106 F.3d 594 However, im public sel- emphasize We officials applicable, the munity to be in con- engage dom use their offices to made, right such that it act must be entirely beyond duct that is their discre- fully wrongfully, general “within the here], authority. fact, tionary [as authority.” official’s] Frank scope [the plaintiffs rarely assert the defen- Malone, Kentucky County, v. 957 lin dant were not acting pursuant officials 195, (Ky.1997), 201 reversed job functions to their and within the Davis, part v. by Yanero authority. scope [simply] This is be- jurisdic “[c]ertainly And (Ky.2001). most [section] cause 1983 claims involve tion a case does not of a court decide from, to, that relates conduct or flows is if its decision the merits disappear au- conduct that official is indeed rejected we have wrong. And heretofore However, thorized to commit. when invalid argument that official action is [,or government official employee], does if on an incorrect as to law based decision beyond the totally act of his au- scope fact, decision making if the officer no thority, immunity he received at com- empowered to do so.” Shoe Co. Wohl (D.C.Mo. mon law and entitled to none under Wirtz, 821, F.Supp. 821-22 § 1965) (citing Nagle, Adams 303 U.S. (1938)). 58 S.Ct. L.Ed. Id. at 594. fact that the ... taken was “The action The distinction above is critical in ana- perimeter official’s] within the outer of [an scope of lyzing authority element duty enough privi- line of render issues, immunity im- “[qualified as ” Matteo, Barr v. lege applicable.... munity employee] shields an officer [or 564, 575, 79 S.Ct. 3 L.Ed.2d U.S. from a decision [he/she] suit when makes (1959). that, deficient, if rea- constitutionally even governing perimeter” official’sfeder-

sonably misapprehends the The “outer law traditionally has employment the circumstances confronted.” al been [he/she] 194, 198, Haugen, broadly Supreme construed: “The Court Brosseau v. 543 U.S. (2004). that, 596, immu- respect 125 160 See L.Ed.2d 583 has declared S.Ct. Katz, 206, 194, 121 nity, jurisdiction employee [of 533 a federal Saucier v. U.S. 2151, broadly to ought 150 272 to be defined act] S.Ct. L.Ed.2d having a con- (“[Qualified immunity operates protect include acts more or less ‘hazy general com- officers from the sometimes bor- nection with matters 488 by supervi-

mitted law to the official’s presented therein. Peerce was first to this words, sion. In other an act is within court discretionary on motion for review jurisdiction the official’s if it is not mani- holding from the of the of Appeals Court festly palpably beyond authority.” his County that Jefferson Judge Executive Armstrong and the fiscal court had no 674, Waring, F.Supp. Vest v. 565 684 authority to countermand the merit (D.C.Ga.1983) Vilas, (quoting Spalding v. regards board’s decisions in hiring. 483, 498, 631, 637, 161 U.S. 16 S.Ct. 40 Discretionary review was then denied and (1896)). L.Ed. agree. 780 We thus the decision of the Court of Appeals requirement “The that the acts be Judge Armstrong’s authority as to became perimeter within the outer of [offi “the law of the case.” This was Peerce I. duty way line of is no cial’s] doubt another later, years Six in Friedman Armstrong, v. stating of that the act have must more or (Ky.2001), 59 S.W.3d 875 this court ad- less connection with general [a] mat by dressed the same issue decided by ters committed law the officer’s con Appeals years Court of six earlier supervision, manifestly trol or and not be I, opposite Peerce but reached the conclu- palpably beyond authority.” Norton sion, County to the effect that the Judge- (5th McShane, 855, 332 F.2d 859 Cir. County Executive and the Jefferson Fiscal 1964). perimeter, “To be within that authority Court did have the to override therefore ... privileged, only is neces ‘[i]t Then, County the Jefferson Merit Board. sary that the action bear some reasonable Friedman, years three supra, after Peerce relation to and connection with the duties ” came back to this court on another grant responsibilities of the official.’ Clif from review the Court of (9th Cox, 722, Cir.1977) ton v. 549 F.2d 726 (then II), Appeals Peerce wherein this Morrow, 204, (quoting Scherer v. 401 F.2d differing court was faced with the court (7th Cir.1968), denied, 205 cert 393 U.S. decisions, years apart, made on the same (1969)). S.Ct. L.Ed.2d 777 issue, yet recognized that it was bound Roudebush, See also Atwater v. original decision that the judge did not (N.D.Ill.1976) (“[A]ll F.Supp. authority by have the virtue of the “law of required immunity general is a con the case” doctrine. See Board Trustees nection between the official duties and the University Kentucky Hayse, acts.”). alleged wrongful (Ky.1989), 782 S.W.2d overruled Moreover, County Fiscal Jefferson Davis, grounds Yanero v. Peerce, Court v. 833-34 (Ky.2001). S.W.3d 510 (Ky.2004), acknowledged the ac- tion Judge Armstrong, taken at the divergence It of opinion on the time, scope was outside the of his authori- question authority same that led to the ty, but we also noted the event occurred recognition difficulty of the determi- environment,” a “legally within uncertain authority nation of the issue of within the as there no “basis to conclude that context the case and thus mandated the Armstrong ‘presumptively would have II, recognition in Peerce factual “[t]he known’ that he would exceed his authori- exemplifies ‘legally context of this case ty....” uncertain environment’ which Peerce, all, immunity understanding appropriate. the reach After supra, important Appeals it is to understand the the Court of reached one conclu- factual authority basis for the determination of the sion as to the relative I, “legally County Judge-Executive uncertain environment” found ... in Peerce the Jail recommendations of Armstrong, Adopt this Court ex- the Friedman promul- amined and reached ... and the same enactments Standards Commission Peerce, conclusion.” ... minimum opposite gate establishing regulations custody, 5.W.3d at care jails.” 834. for The and standard of the re- prisoners of is one treatment Here, fact plaintiff the the quired 441.064 mandates standards. KRS contesting was not the that the Jailer issue of shall in- Department the Corrections and the Deputy acting Jailer were outside there- spect jail biannually, and shall each scope authority pointed of them out to was notify jailer the the fiscal court after and entry of the trial court weeks before the any For of deficiencies discovered. 6, 1999, its summary judgment. December uncor- reported, which remain violations parties contesting, What the which is rected, 441.075 the commis- grants KRS brief, amply by illustrated the is Appellee’s Department sioner of the of Corrections Appellant’s whether alleged the failure 197.110(3), jail. to close the right KRS adopt policy work regarding written Department of directs Corrections 441.125(2), programs set out in as KRS promulgate regulations necessary it deems along the other experi with difficulties care, adequate super- to: “[t]he relation day enced on the program, work vision, maintenance, guarding, discipline, “clearly faith, good illustrate[d] failure of housing prisoners and transportation, thereby precluding finding pris- assigned when to work outside of the immunity entry summary judg and an And, “[a]ny purposes on.” for as the ment.” This is also the same issue with necessary proper and department deems Appeals primarily the Court of carrying chapter.” for out the of this intent already Having concerned. addressed 197.110(5). (1997), 501 KAR 6:020 KRS question issue in regard of “bad Department thus established Cor- faith,” necessary feel it to also address (CPP) rections Policies and Procedures it in Appellant’s scope the context of the reference, 19.1, adopted by and those CPP authority. Projects dealing with Government Service The county jailer recog- office of a 19.2, dealing Community and Service § nized by 99 of the Kentucky Constitu- Projects prisoners. for tion. provides KRS 71.020 that “[e]ach jailer 2:060, 1(4), that, § the custody, provided shall have rule and KAR charge jail incident, and of all “if the custody at the time 441.045(1) persons jail-” community, in the is minimum assigned KRS provides county governing body may programs D participate “[t]he Class felon prescribe Custody, shall rules for for government, jail.”6 offered outside security, safety, jail and D the De- cleanliness of Class felons determined 3:010, partment 501 KAR prison- the comfort treatment of Corrections. 4(3). 441.125(2) ers, § provided such rules are consistent Effective KRS 441.055(1) However, jailer permit prisoners with state law.” certain allowed pro- related provides Department community of Correc- on service “[t]he work jects adopted tions to a pursuant policy shall those which elect to written counties (a) jail: jailer. house court on prisoners the fiscal advice regulation per projects jail outside This in 2001 vice clarified authorized if 10:130, 6, reads, added). regula- (Emphasis § jailer." "state The KAR now approved custody have an level now been to 501 KAR who tions have transferred 7:130, 5(1). community § shall be allowed to work ser- course, prior felony any Of all pris- County or not Rowan Fiscal Court had oners, felons, including D Class such as the adopted the policy by written dictated Appellee, only county jails held in jailer KRS 441.125 on the any advice of short time while awaiting transfer to the since 1982. Kentucky Department of Corrections. The deposition Jailer testified his housing

The of state Class D prisoners the “work program” already place jails, rather than in op- institutions when he took just office It by Corrections, erated Department being evolved into called the D “Class begin did not until 1992 with amendments program.” work When asked as to what 532.100(4)(a), to KRS which also requires polices guidelines or he followed he testi- agreement to this effect between the fied, “the state does require- have certain Department of appro- Corrections and the priate county you’d necessarily ments. I don’t if fiscal court. The amend- know ment to provided this section in 1992 also ‘policies’ yeah, call them or it would not— that “Class D ... serving felons their time policy. be only thing, That would be the jail in a local shall be considered state what the state has furnished.” in- When 532.100(6). fact, prisoners.” quired of as to what the inmates can and felon, any when state Class D housed out, programs, can’t do in the pointed he county jail, community works under given “it’s a set of rules to us from the service projects, they paid related are Department of Corrections.” by per day Kentucky Depart- $1.25 County The Rowan “Class D pro- work ment of Corrections. evolved, it gram” averages as about six It cannot be doubted that the state has prisoners day. They state work on vari- prisoners, control over except state county projects, ous generally at the re- it may lawfully extent transfer such con- head, quest county department of a such through trol implementation reg- of its waste, as solid or the road foreman. At ulations, polices proce- correctional and assigned special jobs times are direct- dures agreements required with the and/or ly request County Judge- at the of the to, housing county. Although cited neither or magistrates. Ninety-per- Executive Department of Corrections Policies time, however, they cent of the work clean- (CPP) agreement Procedures or the ing up roadways trash beside the for the concerning housing department. solid waste This course and Department between the of Corrections history program is sufficient to es- County and Rowan is available for reasons D program” tablish the “Class work that the Appellant’s authority was uncon- bears “more or less a connection with the tested and not developed during thus dis- covery. general matters committed law to the [jailer’s] supervision, control or [which are] Neither discovery taken of the manifestly palpably beyond not ... Corrections, Department which we Norton, authority,” 332 F.2d at could define from the record the distinc- general scope thus are “within the of [his] tions, differing responsibili- treatment and authority.” County, Franklin 957 recognized Department ties of Cor- Moreover, at 201. it typifies “legally county prisoners rections between uncertain recognized environment” prisoners, D “Class felons” other- Peerce, supra, and any discovery wise. Nor was taken thus cannot be said Rowan Fiscal authority. Court establish whether be without his injuries, of

VII. CONCLUSION At the time Sloas’s 441.125(2) “[p]ursuant provided that In that the record established that by the policy adopted written fiscal court Appellants complained acts of the of were jailer, jailer may per- on advice of the performed scope within the of discre- their certain to work communi- mit tionary authority, being and there no evi- ty projects. pris- related Before a service ju- offered from which dence reasonable permitted type oner is to work any rors could conclude that the acts of project, county judge/executive or his in “bad complained performed were approval shall his to the designee sign faith,” the are to the Appellant’s entitled Thus, prisoner’s participation.” absent immunity. official protection by the policy adopted written fiscal court opinion Appeals of the Court of approval and absent written of the questions is reversed on the of Hall and (or county judge/executive designee) “qualified Henderson’s entitlement offi- in the participation program, each inmate’s immunity” summary judgment cial and the operate jailer was authorized trial court is reinstated in all re- community program. service work In his spects. admitted Hall that he deposition, had nev- er prepared policy concerning a written LAMBERT, GRAVES, C.J.; jail inmates, community service work WINTERSHEIMER, McANULTY and any nor he such aware written JJ., concur. policy being taking effectuated before his ROACH, J., Henderson, Similarly, office in 1994. only. concurs result who 1990, at the jail had worked since testified MINTON, J., by separate dissents any policy that he was unaware of written opinion. authorizing community service work project. Neither Hall nor tes- Henderson MINTON, Justice, dissenting. county judge/executive tified that the had Because I genuine believe that issues specifically approved participation Sloas’s material fact exist in ca- Sloas’s individual program. in the Henderson, claims pacity against Hall and Long ago, public we held that a respectfully I dissent. who exceeds the of his limits lawful au-

Generally, respond injured in order to be to thority party entitled “must immunity, Hall and Henderson re- wrongdoer.”2 were like Given the quired prima showing to make a facie Hall testimony of and Henderson that no they acting adopted were within the of their scope policy written had been authority in operating the D authorizing Class Work fiscal court the Class D Work Program.1 “scope authority” Program; given This in- their further testimo- quiry primarily upon ny they seems to focus not aware legal authority whether the official had the judge/executive having approved Sloas’s engage question, the conduct rath- it participation program, appears that, minimum, propriety er than the at a a genuine manner me issue of performed. which that conduct was material fact exists as to whether Hall and Davis, Stewart, (Ky. Ky. Cottongim 1. Yanero v. (quoting MECHEN 2001). OFFICERS, pp. ON PUBLIC et seq.). statutory Henderson membership exceeded au- restoration to under SCR 3.500(1). thority par- when authorized Sloas to then, ticipate program. Clearly, in the By February order of this Court entered Appeals correctly Court of reversed the 4, 2003, Fitzpatrick suspended from grant summary trial court’s decision to practice Kentucky of law under SCR judgment to Hall and Henderson Sloas’s comply 3.669 for failure to with the CLE capacity individual claims. requirements. applica- He submitted his By concluding that Hall and Henderson tion for membership restoration to on summary judgment are entitled to April 2006. capacity against Sloas’s individual claims them, despite possible failure to fol- 3.500(1) provides, in part, “any SCR 441.125, low the strictures of KRS suspended member who has been for fail- majority usurps jury’s role as the finder comply continuing legal ure to with the of fact. That approach, although perhaps requirements education provided by as superficially appealing under the facts of 3.661, prevailed Rule and such status had case, ignores summary judgment period for than a years, may less of five Steelvest, standard we set forth in Inc. v. apply by completing for restoration forms Center, Scansteel Service Inc.3 ISo re- Director, provided by the tendering a fee spectfully dissent. $250.00, payment of dues for the year years

current and all back ...” Fitzpatrick completed ap- submitted his form, plication for restoration af- including Christopher FITZPATRICK, R. fidavits sworn three Bar members Movant, good standing, years than less five after original suspension date. He also ten- $1,011.00, dered a check for which reflects ASSOCIATION, BAR KENTUCKY fee, payment of the dues for the Respondent. $250.00 year, years. current and dues for all back No. 2006-SC-0284-KB. Fitzpatrick compliant through is also CLE Supreme Kentucky. Court However, June 2006. because the res- process complete by toration was not June

Sept. 30, 2006, required Fitzpatrick is to com- ORDER RESTORING MOVANT plete requirement the CLE for 2006-2007

TO MEMBERSHIP being and be recertified restored to before membership. LAMBERT, Chief Justice.

Movant, application, Fitzpatrick In his revealed Christopher Fitzpatrick, R. A applied practice KB Member No. has that he obtained his license to law ("[t]he (Ky.1991) judge 3. 807 S.W.2d rec- material fact. The trial must examine light evidence, fact, ord must be viewed in a most favorable any not to decide issue of party opposing summary the motion for clearly but to discover if a real issue exists. It judgment and all doubts are to be resolved in purpose summary judgment is not the though may his favor. Even a trial court rule, declared, as have often to cut liti- party opposing may believe the the motion gants right off from their of trial if have trial, not succeed at it should not render a try.”). issues to summary judgment if there is issue of

Case Details

Case Name: Rowan County v. Sloas

Court Name: Kentucky Supreme Court

Date Published: Sep 26, 2006

Citation: 201 S.W.3d 469

Docket Number: 2003-SC-000938-DG

Court Abbreviation: Ky.