Request By:
Ms. Sallie Hulette
Secretary-Treasurer
Union County Park and
Recreation Board
130 East Main Street
Morganfield, Kentucky 42437
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
We understand that the city of Morganfield and Union County have established a joint park and recreation board under KRS 97.035.
You ask whether there is any need to incorporate the park system as a nonstock, nonprofit corporation? The answer is "no". Under KRS 97.035(3) the board is a body corporate for all statutory purposes. The park board can issue revenue bonds, for example, under KRS 97.055 for the purpose of establishing or acquiring parks, etc. Under KRS 97.010 et seq., the acquisition, development, maintenance and operation of parks, playgrounds and recreation centers is a proper municipal purpose for all cities and counties. This means that the city and county may both, in this situation, budget and disburse their money for expenditure by the board under the board's statutory authority.
You ask about the immunity from tort liability of the board and its employees.
The board membership is neither a city nor county office. It is a hybrid office not contemplated by either § 165 of the Kentucky Constitution or KRS 61.080, for purposes of incompatible offices. Clearly the county is immune from liability in connection with any negligence of the board, its individual members, and employees of the board. Cullinan v. Jefferson County, Ky., 418 S.W.2d 407 (1967). It is possible that the courts might hold that the park board is an autonomous political subdivision subject to the same immunity as the state and county. In Gnau v. Louisville & Jefferson Co. M.S.D., Ky., 346 S.W.2d 754 (1961), the court held that the sewer district is an agency of state government, and is cloaked with governmental immunity. See also Rash v. Louisville & Jefferson County Met. S. Dist., 309 Ky. 442, 217 S.W.2d 232 (1949) 236, holding that a metropolitan sewer district in an independent body politic, a public body corperate and political subdivision. In Cullinan, above, the court reiterated that a school board, as a political subdivision and arm of state government, is immune from tort liability. Since there are no cases on the precise issue, it would be for the courts to decide ultimately. In the meantime, we think there is substantial logic in the view that the board is immune, since one of its co-creators [county] is immune, and since the board may be aptly characterized as a political subdivision and an agency of the state [not a branch of the central state government].
The question as to whether the city could be liable for any such negligence is a matter for the courts in this mixed situation (city-county). See Haney v. City of Lexington, Ky., 386 S.W.2d 738 (1965), holding that municipal corporations are not immune from tort liability. However, the city in any event could invoke, where applicable, the defense laid out in City of Louisville v. Louisville Seed Co., Ky., 433 S.W.2d 638 (1968) 643, in which the court held that a municipality is not liable in tort where the act complained of affects all members of the general public alike. For example a governmental act would be the failure to provide fire or flood protection. Tort liability would arise when the city, by its dealings or activities, seeks out or separates the individual from the general public and deals with him on an individual basis such that the act does not involve the ultimate function of government. Thus governmental immunity still exists for a city where the activity involved the ultimate function of government, unless the city was dealing with the injured party on an individual basis. See Richmond v. Louisville & Jefferson, Etc., Ky., App. 572 S.W.2d 601 (1978).
However, members of the board, for example, could be individually liable for any negligence attributed to their own failure to perform some statutory duty, which failure results proximately in damages or injury. The board members would not be, generally, liable for the negligence of board employees, if it has employed persons of suitable skill. "The rule is that public officers are responsible only for their own misfeasance and negligence and are not responsible for the negligence of those who are employed by them if they have employed persons of suitable skill. " Moores v. Fayette County, Ky., 418 S.W.2d 412 (1967) 414. This means that the board must exercise ordinary care in selecting subordinates who are known to be satisfactory to perform the tasks to which they are assigned.
Of course the members of the board and employees are held responsible, personally, for their own individual negligence and misfeasance. Any insurance designed to cover those areas of personal liability would have to be procured by such individual board members and employees.