Request By:
Mr. Richard D. Cole
Deputy Commissioner
Department of Local Government
2nd Floor, Capital Plaza Tower
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter raising questions concerning the involvement of the Department of Local Government in a program affecting various local governments relative to local enforcement of the Kentucky Building Code.
You refer to KRS 198B.060 requiring each local government in this state to employ a building inspector to enforce the uniform state building code within the boundaries of its jurisdiction. The statute allows a local government to associate with other local governments and to seek the technical assistance of other agencies or area development districts to provide for the local enforcement of the state building code.
The Lake Cumberland Area Development District has requested the Department of Local Government to provide financial assistance for a one-year demonstration program which would involve the formation of a nonprofit agency made up of city and county governments wishing to participate in the regional building code enforcement program. The program is an attempt to fulfill the requirements of KRS 198B.060 at a minimal cost to each participating unit of government.
Your first question concerns whether the Department of Local Government may participate in the program since the statute requires local governments to provide the building inspectors. Your second question concerns potential liability of the Department of Local Government if it participates in the program through the rendering of financial assistance and building inspections are faulty or not performed at all.
As we understand the proposed program, having read your letter and the attached draft of the "Non-Metro Codes Enforcement Program" and having discussed the matter with Mr. Earl Campbell of your office, the Department of Local Government is contemplating providing funds to the area development district. The area development district will use those funds to engage in research and planning relative to the formation and organization of a program dealing with local enforcement of the Kentucky Building Code. Interested cities and counties, presumably under an interlocal agreement (KRS 65.210 to 65.300), will form a nonstock, nonprofit corporation to provide for building code enforcement on a regional basis. The area development district will not administer, manage or directly operate the code enforcement program. The participating cities and counties will secure sufficient personnel, including building inspectors, to carry out the inspection program.
KRS 198B.060(1) requires each local government in this state to employ a building inspector to enforce the provisions of the uniform state building code within the boundaries of its jurisdiction. KRS 198B.060(9) authorizes a local government to associate with other local governments and to seek the technical assistance of other agencies or area development districts in order to provide for the local enforcement of the state building code.
KRS 147A.020(4) provides that the Department of Local Government shall provide technical assistance and information to units of local government concerning fiscal management, perrsonnel administration, purchases and contracts, ordinances and codes, and community development. Under KRS 147A.004 the Department of Local Government administers the distribution of state and federal planning funds to area development districts.
The powers of the Board of Directors of an Area Development District are set forth in KRS 147A.080 and the duties of the Board of Directors of an Area Development District are set forth in KRS 147A.090. In OAG 81-185, copy enclosed, we said that KRS 147A.080 and 147A.090 authorize Area Development Districts to engage in the work of program development through administrative, research and planning effort. They are, however, not authorized to administer, manage, implement or directly operate such programs once developed.
Although local governments are responsible for the enforcement of the state building code within the boundaries of their jurisdictions, the Department of Local Government may participate in the local enforcement program to the extent of providing funds for the research and planning of a program whereby various local governments will jointly conduct and operate an enforcement program.
Since the contemplated enforcement program will be conducted and operated by the participating city and county governments and the building inspectors will be selected and employed by the participating units of local government, liability, if any, in connection with the inspection of buildings would be incurred, in all probability, by the inspectors and those administering the inspection program. The Department of Local Government would not only be removed from the operation, management and administration of the inspection program but it would also not be involved in the planning and research. It would only be involved in the funding of the planning and research. While there is no guarantee that liability could never be incurred by the personnel of the Department, the connection between the local building inspectors and personnel of the Department who authorized funding for research and planning of an inspection plan to be utilized on the local level would normally be too remote to support liability against personnel of the Department.
While the Commonwealth of Kentucky, except for the provisions of KRS Chapter 44 relating to the Board of Claims, still enjoys sovereign immunity, governmental officers and employes can be liable. The general rule as to personal liability is set forth in
Spillman v. Beauchamp, Ky., 362 S.W.2d 33 (1962);
". . . It seems to us that in order to impose personal liability there should be some element of personal fault on the part of the officer or agent, such as negligence or deliberate wrongdoing. The ordinary rule is that a public officer acting in good faith within the scope of his authority is not personally liable for damages sustained by a member of the public as a result of his action, unless he acted negligently, that is, failed to meet the standard of the ordinary prudent man. . . ."