ARCH TURNER DAVID NAPIER MICHAEL BOWLING AND REGGIE HAMILTON APPELLANTS v. ALICIA RITCHIE INDIVIDUALLY AND JANE DOE APPELLEES

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Court of Appeals of Kentucky.

ARCH TURNER; DAVID NAPIER; MICHAEL BOWLING; AND REGGIE HAMILTON APPELLANTS v. ALICIA RITCHIE, INDIVIDUALLY, AND JANE DOE APPELLEES

NO. 2015-CA-000869-MR

Decided: January 06, 2017

BEFORE: ACREE, J. LAMBERT, AND THOMPSON, JUDGES. BRIEFS FOR APPELLANTS: Jonathan C. Shaw, Paintsville, Kentucky BRIEF FOR APPELLEES: J. Dale Golden, Mary Lauren Melton, Lexington, Kentucky

OPINION REVERSING AND REMANDING

Arch Turner, David Napier, Michael Bowling, and Reggie Hamilton, officials in the Breathitt County school system, have taken an interlocutory appeal from the order of the Breathitt Circuit Court denying their request for qualified official immunity in their individual capacities. Having carefully considered the record and the applicable case law, we hold that the actions of the school officials were discretionary and that they were entitled to qualified official immunity. Therefore, we reverse the circuit court's order and remand.

We shall begin with an introduction of the parties and other figures related to this case as well as a brief recitation of the rather complicated factual background. Arch Turner was the Superintendent of Breathitt County Schools, David Napier was an assistant superintendent of Breathitt County Schools, Reggie Hamilton was the Principal of Sebastian Middle School (SMS), which is in the Breathitt County school system, and Michael Bowling was a teacher at SMS 1 (hereinafter, collectively, defendants or appellants). Charles (Andy) Mitchell was a teacher at SMS until 2011. Jane Doe attended SMS in 2008 and 2009, when it educated 7th through 9th grade students. Alicia Ritchie is Jane Doe's mother.2

Mitchell was Jane Doe's 8th grade social studies teacher, and they began texting and using Facebook to send messages to each other during the summer of 2009 before she entered the 9th grade. The texting went on for about two years. They began sending each other pictures of their genitalia, and in January 2010 they started a sexual relationship. Jane Doe would go to his classroom to have sexual relations with him before school started while the other students were in the gymnasium or eating breakfast in the cafeteria. She reported that they engaged in sexual intercourse five times and she performed oral sex on him three times. She and Mitchell went out of their way to hide their relationship from others, and the sexual relationship continued during her 9th grade year. It ended when she went to high school, although their friendship continued. Jane Doe said they stopped communicating when she discovered Mitchell had been messaging with another student. Ritchie did not find out about Jane Doe's relationship with Mitchell until August of 2011, when Detective Gay was conducting an investigation.

Mitchell confirmed that Jane Doe would go to his classroom both in the morning and at other times of the day. He would lock the door, and they would have sex behind his desk. His last sexual encounter with Jane Doe was in March or April of 2010, and he last spoke with her in May 2011. He admitted that he had unsuccessfully solicited sex from other students as well.

In May 2010, Hamilton (the principal of SMS) learned that Mitchell had been texting a student, A.R., and had sent her more than 100 text messages in one night. A.R.'s parents came to Hamilton's office to tell him about this. While the student's father expressed some concern over the number of messages sent, he did not mention any sexual content present in the messages. The student's mother had discovered the messages and posed as her daughter as she communicated with Mitchell. Mitchell did not send any inappropriate messages during that time. Turner (the superintendent) investigated the matter. At Turner's request, Hamilton attempted to retrieve the messages from Mitchell and the police, but he was only able to obtain the billing summary, not the actual messages. At that time, the school had an acceptable usage policy with regard to texting and emailing. Mitchell admitted to having texted A.R., but he said it was about guitar lessons, not anything of a sexual nature. Mitchell was suspended for the last two weeks of the 2009-2010 school year due to the number of text messages he had sent and for his failure to produce the text messages when requested. He was also placed on growth and corrective action plans, and he was required to complete ethics training. Mitchell returned to teaching the following school year.

In May 2011, a different student brought to Bowling (a teacher) an iPod that contained screen shots of Facebook messages between Mitchell and another student, D.T. He did not look at all of the messages or see any of a sexual nature, but rather he took the iPod to Hamilton. Hamilton read some of the messages, which contained graphic, sexually explicit material. However, he believed he needed to investigate the authenticity of the information because it came from a third party. Hamilton contacted the school's IT person as well as Turner and Napier (the assistant superintendent), and they began an investigation. In addition, Hamilton contacted D.T.'s parents, who adamantly denied this had happened, stated the messages were not real, and refused to come in for a meeting. Mitchell ultimately resigned after this incident.

Neither incident was reported to police, although the defendants were aware that they had a duty to immediately report the sexual abuse of a child to police and social services pursuant to Kentucky Revised Statutes (KRS) 620.030. A few weeks after the 2011 incident, the police notified the school about an investigation.

All four defendants were charged with failure to report child dependency, neglect, or abuse related to the 2011 incident. In September 2012, the defendants and the special prosecutor agreed to a stipulation of facts that was adopted by the district court. The facts provide in relevant part as follows:

6. On or about May 8, 2011, a student approached Defendant Michael Bowling indicating she had something she thought he should see.

7. What she showed him was an Apple iPod touch, which is an electronic device shaped like an iPhone, but without the capability of making or receiving phone calls. The device does have wireless access to the internet.

8. On the iPod touch, the student showed Defendant Bowling that she had “screen shots” of a conversation she alleged took place on Facebook between another student, D.T., and another teacher at SMS, Andy Mitchell.

9. After looking at the first few screen shots, Defendant Bowling took the iPod to Defendant Reggie Hamilton.

10. Defendant Hamilton reviewed the screen shots.

11. Defendant Hamilton contacted Defendant David Napier to advise him of what he received and asked him to come to the school.

12. Phillip Watts, the school IT Specialist, was called to print copies of the screen shots from the iPod.

13. Defendants Napier and Hamilton also wanted Phillip Watts' opinion as to the legitimacy of the alleged conversation and Watts advised that the screen shots looked real, but he could not tell whether they were from an actual conversation or from a hacked or staged Facebook account.

14. The girl that submitted the iPod to Defendant Bowling indicated that she knew D.T.'s password and had access to her Facebook account.

15. It was further determined that none of the alleged communication occurred using any school equipment.

16. All of this information was given to Defendant Arch Turner.

17. After conferring, school officials determined it was appropriate to investigate these allegations.

18. D.T., the student alleged to be in the relationship with Andy Mitchell, and her mother, [C.T.], were interviewed.

19. Both D.T. and [C.T.] denied that any relationship existed or that any communications had taken place.

20. [C.T.] also indicated she had found nothing related to these conversations or otherwise incriminating on her home computer.

21. Andy Mitchell also denied any involvement.

22. As part of the investigation, numerous coworkers of Andy Mitchell and students were interviewed as to whether or not they had ever seen any inappropriate behavior between Andy Mitchell and any student.

23. No teacher or student indicated any unusual behavior or comment coming from Andy Mitchell.

24. During the week of May 23rd, Hon. Lynn E. Herald, School Board Attorney, contacted the Central Office to inquire about a phone call she had received from Detective Doug Gay of the Kentucky State Police. Prior to that time, none of the Defendants had contacted anyone outside the school system to discuss this matter.

25. Detective Gay had indicated that he had received a call from the local television station inquiring about an investigation revolving around a relationship between a teacher and a student.

26. Upon meeting with Lynn E. Herald, Defendant Napier, Defendant Hamilton, Defendant Turner and Phillip Watts discussed with Herald what they had found during their investigation.

27. It was the opinion of the school employees that there was not sufficient information to believe that there was any abuse, neglect or dependency.

28. Lynn E. Herald reviewed the screen shot information and discussed the investigation with the school administrators.

29. It was her opinion that at that time that the school did not have sufficient grounds to require a report of the alleged incident to Social Services, KSP or any other authority.

30. Lynn E. Herald also recommended that a letter be sent [to] the Professional Standards Board explaining the situation; however, since KSP had inquired, Detective Gay would be investigating.

31. A meeting was scheduled between the detective, the above-named school personnel, Lynn E. Herald and the mother of the child.

32. The meeting never took place because [C.T.] contacted central office and indicated she would not be coming.

The charges against Bowling were dismissed, and the remaining defendants were found guilty following a bench trial. Mitchell was also charged, and he entered a guilty plea to rape, sodomy, sexual abuse, and distribution of pornographic images to minors, and he assumed that this was all related to Jane Doe. He also admitted that he gave out salacious information to another five students. He was sentenced to seven years in prison and served seven and a half months before he was placed on shock probation for five years.

In September 2011, Ritchie, as next friend of Jane Doe, filed a complaint in Breathitt Circuit Court alleging causes of action for negligence; negligent hiring, training, supervision, and retention; violation of a special relationship; violation of the Restatement (Second) of Torts § 314A; negligent and intentional infliction of emotional distress; violation of §§ 1-3 of the Kentucky Constitution; and breach of contract. Ritchie named Turner, Napier, Bowling, and Hamilton as defendants in both their individual and official capacities. She demanded damages for past, present, and future mental and physical pain and suffering and embarrassment; consequential damages; a permanent impairment of her ability to earn money; medical and counseling costs; punitive damages; and attorney's fees, costs, and expenses. By a later discovery response, Ritchie indicated she was seeking damages in excess of $22M, not including attorney's fees and expenses. This included $10M in punitive damages.

In their answer, the defendants argued, in part, that the claims were barred by the doctrine of sovereign immunity. On July 16, 2012, the defendants moved for summary judgment as to the official capacity claims on the basis of sovereign immunity pursuant to Yanero v. Davis, 65 S.W.3d 510 (Ky. 2002). By agreed order entered shortly thereafter, the circuit court granted the motion and dismissed the official capacity claims without prejudice.

On November 13, 2012, Ritchie moved to file an amended complaint to add herself, individually, and allege a claim for loss of consortium for the deterioration of her relationship with Jane Doe. The court granted the motion shortly thereafter, and the amended complaint was filed. In July 2013, Ritchie moved for leave to file a second amended complaint in order to allege a claim for negligent infliction of emotional distress on her own behalf. The court granted the motion shortly thereafter. In September 2013, Ritchie moved for leave to file a third amended complaint seeking to add Mitchell as a defendant and to assert claims of outrage, harassment, and battery against him and the other defendants based upon his repeated subjection of Jane Doe to sexual abuse. The circuit court granted this motion on October 14, 2013. The defendants and Mitchell filed separate responses arguing that the claims against them individually were barred by qualified immunity and that an award of punitive damages was prohibited the United States and Kentucky Constitutions.

In February 2015, the defendants moved for summary judgment and requested dismissal of Ritchie's claims against them in their individual capacities. They argued that although Ritchie claimed it in the complaint, there were no prior allegations of sexual abuse of students by Mitchell that would have placed any of them on notice. They pointed out that the only prior complaint related to Mitchell involved texting a student about school-related issues and private guitar lessons in 2010. Following an investigation in May of that year, Mitchell was suspended without pay for ten days, was placed on a corrective action plan to deter any further use of Facebook or personal technology to contact students, and received additional ethics training. On the basis of the facts elicited during discovery, the defendants argued that Mitchell's alleged sexual assault of Jane Doe could not have been reasonably foreseen or anticipated and that they had no knowledge of the alleged sexual abuse of any student at SMS prior to May 9, 2011. They also asserted that the actions of the defendants in relation to Mitchell's conduct was discretionary. In addition, the defendants raised several other issues, including that there was no proof that Bowling had any knowledge of the claims or acted in any capacity other than as a teacher, that Ritchie's individual claims were barred by the statute of limitations, that any claims based on vicarious liability were barred, and that any claims based on simple negligence were barred by immunity under the federal Paul D. Coverdell Teacher Protection Act of 2011. 20 U.S.C. § 6731 (2012) et seq.3

In response, Ritchie asserted that the motion for summary judgment was premature as other depositions were scheduled to be taken and that the defendants were not entitled to qualified immunity for their failure to supervise Jane Doe. She argued that their failure to report the sexual abuse was a ministerial duty imposed by Kentucky law, not a discretionary one as the defendants argued.

The court heard brief arguments on the defendants' motion for summary judgment and by summary order entered May 22, 2015, denied the motion.4 This interlocutory appeal by the defendants now follows.

On appeal, the defendants (now appellants) have raised issues related to whether they were entitled to qualified immunity, whether the claims against them individually should be dismissed as a matter of fact and law, whether Bowling had knowledge of the underlying claims, whether Ritchie's claims were barred by the statute of limitations, whether the claims based on vicarious liability were barred as a matter of law, and whether the simple negligence claims were barred by the Paul D. Coverdell Teacher Protection Act of 2001.

Ritchie argues that this interlocutory appeal should be limited to whether the defendants were entitled to qualified official immunity. In Breathitt

Cty. Bd. of Educ. v. Prater, 292 S.W.3d 883, 886–87 (Ky. 2009), the Supreme Court of Kentucky held:

As we observed recently in Rowan County v. Sloas, 201 S.W.3d 469 (Ky. 2006), immunity entitles its possessor to be free “from the burdens of defending the action, not merely ․ from liability.” Id. at 474. See also Lexington–Fayette Urban County Government v. Smolcic, 142 S.W.3d 128, 135 (Ky. 2004). (“Immunity from suit includes protection against the cost of trial and the burdens of broad-reaching discovery that are peculiarly disruptive of effective government.”) (citation and internal quotation marks omitted). Obviously such an entitlement cannot be vindicated following a final judgment for by then the party claiming immunity has already borne the costs and burdens of defending the action. For this reason, the United States Supreme Court has recognized in immunity cases an exception to the federal final judgment rule codified at 28 U.S.C. § 1291. In Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), the Court reiterated its position that “the denial of a substantial claim of absolute immunity is an order appealable before final judgment.” Id. at 525, 105 S.Ct. 2806, citing Nixon v. Fitzgerald, 457 U.S. 731, 102 S.Ct. 2690, 73 L.Ed.2d 349 (1982). We find the Supreme Court's reasoning persuasive, and thus agree with the Court of Appeals that an order denying a substantial claim of absolute immunity is immediately appealable even in the absence of a final judgment.

Because no final order has been entered and this is an interlocutory appeal, we agree with Ritchie that the only issue properly before this Court for review addresses whether the appellants were entitled to qualified official immunity. The remaining arguments are not yet ripe for appeal, and therefore we shall not address them.

Our standard of review in an appeal from a summary judgment is well-settled in the Commonwealth. “The standard of review on appeal when a trial court grants a motion for summary judgment is ‘whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law.’ ” Lewis v. B & R Corp., 56 S.W.3d 432, 436 (Ky. App. 2001), citing Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996); Palmer v. Int'l Ass'n of Machinists & Aerospace Workers, 882 S.W.2d 117, 120 (Ky. 1994); CR 56.03. “Because summary judgment involves only legal questions and the existence of any disputed material issues of fact, an appellate court need not defer to the trial court's decision and will review the issue de novo.” Lewis, 56 S.W.3d at 436, citing Scifres, 916 S.W.2d at 781; Estate of Wheeler v. Veal Realtors and Auctioneers, Inc., 997 S.W.2d 497, 498 (Ky. App. 1999); Morton v. Bank of the Bluegrass and Trust Co., 18 S.W.3d 353, 358 (Ky. App. 1999). With this standard in mind, we shall review the judgment on appeal.

Our Supreme Court's opinion in Yanero v. Davis, 65 S.W.3d 510 (Ky. 2001), is the seminal case on sovereign immunity in the Commonwealth. On the issue of official immunity, the Court instructs that this “is immunity from tort liability afforded to public officers and employees for acts performed in the exercise of their discretionary functions. It rests not on the status or title of the officer or employee, but on the function performed.” Id. at 521, citing Salyer v. Patrick, 874 F.2d 374 (6th Cir. 1989). The Yanero Court explained that official immunity may be either absolute, when an officer or employee of the state or a governmental agency is sued in his representative capacity, or qualified, when the officer or employee is sued in his individual capacity. Id. at 521-22. Qualified official immunity “affords protection from damages liability for good faith judgment calls made in a legally uncertain environment” and “applies to the negligent performance by a public officer or employee of (1) discretionary acts or functions, i.e., those involving the exercise of discretion and judgment, or personal deliberation, decision, and judgment; (2) in good faith; and (3) within the scope of the employee's authority.” Id. at 522 (citations omitted). However, “an officer or employee is afforded no immunity from tort liability for the negligent performance of a ministerial act, i.e., one that requires only obedience to the orders of others, or when the officer's duty is absolute, certain, and imperative, involving merely execution of a specific act arising from fixed and designated facts.” Id. citing Franklin Cty. v. Malone, 957 S.W.2d 195, 201 (Ky. 1997). The question of whether a defendant is protected by the doctrine of official qualified immunity is a question of law, which we review de novo. Rowan Cty. v. Sloas, 201 S.W.3d 469, 475 (Ky. 2006) (citations omitted).

The appellants rely on several cases to argue that their actions were discretionary and that therefore they were entitled to qualified official immunity, including the Supreme Court's recent opinion of Marson v. Thomason, 438 S.W.3d 292 (Ky. 2014).

On the other hand, Ritchie relies upon cases such as Williams v. Kentucky Dep't of Educ., 113 S.W.3d 145 (Ky. 2003), to assert that the failure to supervise students is a ministerial act and does not subject the school official to any immunity. The Williams Court held as follows:

We disagree with the Board of Claims' conclusion that a teacher's duty to supervise students is a “regulatory” (discretionary?) function. Promulgation of rules is a discretionary function; enforcement of those rules is a ministerial function. Yanero, 65 S.W.3d at 529. See also KRS 161.180(1):

Each teacher and administrator in the public schools shall in accordance with the rules, regulations and bylaws of the board of education made and adopted pursuant to KRS 160.290 for the conduct of pupils, hold pupils to strict account for their conduct on school premises, on the way to and from school, and on school sponsored trips and activities.

Pursuant to KRS 160.290, the Floyd County Board of Education had adopted a Code of Conduct that identified, inter alia, the following behavior violations that would subject a student to disciplinary action: non-attendance of class; leaving school grounds without permission; and use or possession of alcohol at any time “during the entire school day, to and from school, on school buses, and all school sponsored activities.” Another section of the Code of Conduct charged teachers with the responsibility to “enforce rules and regulations of the Board of Education.” Compliance with this directive was a ministerial, not a discretionary or regulatory, function.

Williams, 113 S.W.3d at 150–51.

In addition, Ritchie relies upon this Court's opinion in Beward v. Whitaker, 2015 WL 293461 (2013-CA-000773-MR) (Ky. App. Jan. 23, 2015). In Beward, this Court originally affirmed the lower court's decision and held that the school officials were not entitled to any immunity, having determined that their enforcement of the student supervision schedule was ministerial. However, the Supreme Court of Kentucky granted discretionary review on September 16, 2015, and remanded the appeal to this Court for further consideration in light of Marson v. Thomason, supra. On May 6, 2016, this Court rendered a new opinion, Beward v. Whitaker, 2016 WL 2609308 (2013-CA-000773-MR) (Ky. App. May 6, 2016), this time reversing the lower court's decision and holding that the officials had the general duty of ensuring the safety of the students and staff, which was discretionary, and thus they were entitled to qualified official immunity. The Supreme Court denied discretionary review on September 15, 2016, but ordered this Court's opinion not to be published. Therefore, we cannot consider the appellees' citation to Beward v. Whitaker.

We have carefully considered the case law addressing the difference between discretionary and ministerial acts, and we are persuaded that the law as stated by the Supreme Court in Marson controls in this instance and provides immunity to the appellants.

In Marson, supra, the Supreme Court addressed a situation where bleachers were not properly extended, causing injuries to a student. The Supreme Court described the difference between the two types of acts as follows:

The distinction between discretionary acts and mandatory acts is essentially the difference between making higher-level decisions and giving orders to effectuate those decisions, and simply following orders. Or, as we have stated, “Promulgation of rules is a discretionary function; enforcement of those rules is a ministerial function.” Williams v. Kentucky Dept. of Educ., 113 S.W.3d 145, 150 (Ky. 2003).

Marson, 438 S.W.3d at 297. The Supreme Court ultimately concluded that the acts of the principals were discretionary, and thus they were entitled to qualified immunity, while the acts of the teacher, who was specifically assigned to supervise the students in the gym, were ministerial. Id. at 300, 301. Analyzing the role of Principal Martin, who served as the principle of the middle school the injured student attended, the Court observed:

Martin's responsibility to look out for the students' safety was a general rather than a specific duty, requiring her to act in a discretionary manner by devising school procedures, assigning specific tasks to other employees, and providing general supervision of those employees. Her actions were at least at an operational level, if not a policy- or rule-setting level. Indeed, the principal ordered the custodians to prepare the gym and the teachers to watch the children and to move them around as needed in the morning. ․ Her general responsibility for students' safety was discretionary. She is therefore entitled to qualified official immunity.

Id. at 299-300 (footnote omitted). Similarly, the high school principal, Marson, had a “general duty to look out for the safety of the students” that, like Martin's duty, was discretionary in nature, also entitling him to qualified official immunity. Id. at 300. With regard to the teacher assigned to bus duty that morning, the Court found his duty to be ministerial because he was performing “a set, specific routine for coordinating the children and looking out for their safety that he was specifically assigned to follow on the day in question. ․ As such, his job required him to perform specific acts that were not discretionary in nature.” Id. at 301. The Court went on to emphasize its prior holdings “that a teacher's duty to supervise students is ministerial, as it requires enforcement of known rules” and that the teacher's task to “perform bus duty in the established and routine manner” was ministerial in nature. Id.

The Court stressed that it is “[t]he nature of the acts performed by the teacher, or any governmental employee, determines whether they are discretionary or ministerial.” Id. at 302 (emphasis in original).

Immunity is reserved for those governmental acts that are not prescribed, but are done, such as policy-making or operational decisionmaking, without clear directive. The responsibility for such acts rests on the individual who has made a decision to act based on his judgment, without established routine, or someone else in the process to allow burden-shifting. For this reason, and to ensure that governmental officials will exercise discretion when needed, our law allows qualified immunity from suit on the performance of discretionary acts. This is a policy decision that has long been the law of the Commonwealth.

Id.

At the relevant times in the matter before this Court, Breathitt County Schools had in place policies addressing the supervision of students. Policy 09.221 AP.1 provides as follows:

Principals shall develop and implement a plan of supervision for their schools to address the following areas:

1. Bus loading and unloading;

2. Meals;

3. Halls, restrooms, and playgrounds;

4. Time before and after the school day; and

5. Field trips and other school activities.

Prior to the opening of school each year, the Principal shall submit the plan to the Superintendent/designee for review and to the Board for its approval.

There is no dispute that this plan was in place at SMS. Policy 09.221 provides that “[s]tudents will be under the supervision of a qualified adult” and that “[e]ach teacher and administrator shall hold pupils to a strict account for their conduct on school premises, on the way to and from school, and on school-sponsored trips and activities.” The duties contained in these policies are more general in nature to these appellants and require “only a general supervisory duty” over the students rather than a specific one, such as the teacher or administrator assigned to the gym prior to the start of classes would have had. See Marson, 438 S.W.3d at 300.

Applying this law to the facts of this case, we must hold that the appellants' acts, or inactions, in this case were discretionary because they constituted a more general duty to supervise the students rather than a specific duty, such as being assigned to supervise the loading or unloading of the bus, the lunchroom, or the hallways. We note that Ritchie did not name as defendants the teachers or administrators who were assigned to the areas Jane Doe left to meet with Mitchell at SMS.

As to the duty to report dependency, neglect, or abuse, the Breathitt County Schools' policies provided that, “[t]o promote the safety and well-being of students, the District requires employees to make reports required by state law in a timely manner.” The policy specifically included a citation to KRS 620.030, and included the following statutory language:

Any person who knows or has reasonable cause to believe that a child is dependent, neglected, or abused shall immediately cause an oral or written report to be made to a local law enforcement agency or the Department of Kentucky State Police; the cabinet or its designated representative; the Commonwealth's Attorney or the County Attorney; by telephone or otherwise. Any supervisor who receives from an employee a report of suspected dependency, neglect, or abuse shall promptly make a report to the proper authorities for investigation.

With regard to these appellants' actions arising from the 2010 and 2011 texting incidents, the statute includes the requirement that a person must have “reasonable cause” before reporting that a child is dependent, neglected, or abused, which would necessarily call for the exercise of discretion prior to reporting. Therefore, we must hold that the reporting requirement constitutes a discretionary action.

In order to grant immunity for discretionary acts, Yanero also requires that the allegedly negligent performance of a discretionary act must also be made in good faith and be within the scope of that employee's authority. Yanero, 65 S.W.3d at 522. There is no argument that the actions in this case were made in the scope of the appellants' authority, but Ritchie argues that bad faith exists, negating their claim for immunity.

The Yanero Court discussed the “good faith” element to discretionary actions, recognizing that there is “both an objective and subjective aspect.” Id. at 523. Ritchie contends in this case that because she had pled constitutional deprivation claims and there was a subjective aspect to this analysis, this question must be decided by a jury. We disagree.

In Rowan Cty. v. Sloas, supra, the Supreme Court addressed the “bad faith” element and determined that the Yanero Court had only adopted the objective reasonableness test in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), not the subjective one:

For a violation of a right to be acceptable as evidence of “bad faith,” the rights violated however, must be “clearly established.” See Jefferson County Fiscal Court v. Peerce, 132 S.W.3d 824, 834 (Ky.2004) (citing Yanero, 65 S.W.3d at 523). Thus, the factual context of the occurrence must not exemplify a “ ‘legally uncertain environment’ in which qualified official immunity is appropriate.” Peerce, 132 S.W.3d at 834.

The recognition of a “legally uncertain environment” as established in Yanero and explained in Peerce is important

[b]ecause the focus is on whether the officer had fair notice that her [/his] conduct was unlawful, [the] reasonableness [of which] is judged against the backdrop of the law at the time of the conduct. If the law at that time did not clearly establish that the officer's [or employee's] conduct would violate the [law], the officer should not be subject to liability or, indeed, even the burdens of litigation. It is important to emphasis that this inquiry must be undertaken in light of the specific context of the case, not as a broad general proposition.

Brosseau v. Haugen, 543 U.S. 194, 198, 125 S.Ct. 596, 599, 160 L.Ed.2d 583 (2004) (citations omitted).

In this respect, Yanero adopted the “objective reasonableness test” of Harlow in consideration of violations as evidence of “bad faith.” Yanero, 65 S.W.3d at 523. Thus, there is no true subjective test for this element, post Yanero, as there is for willful or corrupt motive.

Sloas, 201 S.W.3d at 481–82. The Sloas Court concluded:

Bad faith is “[t]he opposite of ‘good faith,’ and it is not prompted by an honest mistake as to one's rights or duties, but by some interested or sinister motive.” Black's Law Dictionary 176 (rev. 4th ed.1968) (emphasis added). Thus, if the facts of the violation are not such as to demonstrate or support a finding of “bad faith” on the part of the officer or employee in performing a discretionary function, then the alleged violations of the right involved is irrelevant to “qualified official immunity” issues. Thus, where the violation of the plaintiff's right is itself one's evidence of “bad faith,” the right violated must be clearly established; otherwise, it would not meet the “objective reasonableness” test adopted from Harlow by Yanero. Thus, in the context of qualified official immunity, “bad faith” can be predicated on a violation of a constitutional, statutory, or other clearly established right which a person ․ presumptuously would have known was afforded to a person in the plaintiff's position. Yanero, 65 S.W.3d at 523 (emphasis added).

Sloas, 201 S.W.3d at 483–84. Thus, we cannot hold that there are any subjective, factual determinations that a jury must make in this case, and there is no other evidence to suggest that the appellees were acting in bad faith.

Accordingly, we must hold as a matter of law that because the actions or inactions of the appellants were discretionary, in good faith, and within the scope of their authority, the circuit court erred in denying the portion of the appellants' motion for summary judgment seeking the protection of qualified official immunity.

For the foregoing reasons, the portion of the summary judgment of the Breathitt Circuit Court denying the appellants immunity from suit is reversed, and this matter is remanded for dismissal of the appellants from Ritchie's suit.

ALL CONCUR.

FOOTNOTES

1.   The complaint incorrectly identified Bowling as an assistant superintendent of Breathitt County Schools.

2.   As appropriate, we shall collectively refer to parties Ritchie and Jane Doe as “Ritchie” in regard to filings and arguments in the underlying claim and on appeal.

3.   Now 20 U.S.C. § 7941.

4.   In addition to the defendants' motion for summary judgment, the court considered several other motions and issues. Ritchie moved for summary judgment on her claims against Mitchell, on behalf of both Jane Doe and herself, alleging that as a matter of law, Mitchell had violated his duties to Jane Doe that arose because of his special relationship as a teacher at SMS and for his failure to report acts of sexual abuse. Mitchell objected to the motion, arguing that the question of comparative fault should be submitted to the trier of fact. Ritchie also moved to join the Kentucky School Board Insurance Trust and the Kentucky Department of Insurance as parties in order to seek a declaratory judgment regarding insurance coverage for Mitchell. The court granted this motion by order entered March 20, 2015, and the petition for a declaratory judgment was filed in early April. On March 23, 2015, the court entered an agreed order that Ritchie was a named party in her individual capacity and that Jane Doe, who had reached the age of majority, was a separate plaintiff and would individually pursue her own claims. In the same order currently on appeal, the circuit court denied Ritchie's motion for summary judgment on her claims against Mitchell and transferred the coverage issue to Franklin Circuit Court. None of these issues are before the Court in this appeal.

J. LAMBERT, JUDGE: