Request By:
Secretary Michael Troop
Justice Cabinet
High Street
Frankfort, Kentucky 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Nathan Goldman, Assistant Attorney General
In your letter to the Attorney General you ask whether OAG 61-994 is still applicable, in light of the 1986 amendments to KRS Chapter 44.
In OAG 61-994 we opined that the Board of Claims Act was not the exclusive remedy against a negligent state employee who committed a tortious act while acting within the scope of his or her employment. The injured party could proceed against the employee personally in court. However, if the injured party chose to bring the action at the Board of Claims, then the claimant would be precluded from thereafter suing the employee in court.
In 1986, the Board of Claims Act was amended to provide that actions against state officers and employees for alleged negligence while acting within the scope of their employment may only be brought in the Board of Claims. Acts 1986, Chapter 499, Sections 1 and 2; KRS 44.072 and 44.073. These changes have been the subject of various lawsuits challenging their constitutionality. See, for example, Sloane v. Luttrell recently decided by the Court of Appeals and not yet a final decision.
Because the question of the constitutionality of the 1986 amendments is the subject of litigation, we can offer no opinion on that question herein. However, it would appear that, based on the changes and absent a court decision invalidating them, that OAG 61-994 must be questioned. We cannot at this time withdraw the Opinion until and unless the amendments have finally passed constitutional muster. We can urge caution in relying on the Opinion in light of the amendments since the Opinion does not deal with the question as presented by the amendments.