Attorney General of Arkansas — Opinion
STEVE CLARK, Attorney General
Mr. David Eberdt, Director Arkansas Crime Information Center No. 1 Capitol Mall Little Rock, AR 72201
Dear Mr. Eberdt:
This is in response to your request for an opinion on the following questions:
1. Is the Director of the Arkansas Crime Information center potentially liable under 42 U.S.C. § 1983 if he acts in a negligent manner in keeping current information entered into our system?
2. If potential liability exists under 42 U.S.C. § 1983, are existing quality control procedures used by ACIC sufficient to insulate the Director for that kind of liability?
3. Is the Supervisory Board of ACIC also potentially liable under 42 U.S.C. § 1 83 if negligent record-keeping occurs?
4. Are the policies and procedures used by ACIC sufficient to insulate the Board from potential liability for a negligent act by an employee of ACIC?
Your first question refers to both negligence and 42 U.S.C. § 1983. The proper forum for a negligence action is State Court with the attendant application of State law. However, a State agency would be immune from suit under Article 5, Section 20 of the Arkansas Constitution. Any claim for injury resulting from the acts of the agency, its director or employees could be brought before the State Claims Commission.
In regard to ACIC’s director and employees, Ark. Stat. Ann. 13-1420 provides that employees are immune from civil liability for acts or omissions occurring in the scope and course of state employment excluding malicious acts or omissions. This statute does not prevent such employees from being sued in State Courts. The state may indemnify an employee for actual damages adjudged if the State employee’s act or omission was in good faith and without malice. Ark. Stat. Ann. 12-3401.
You have also questioned whether your director, the supervisory board, or other employees of the ACIC are potentially liable under 42 U.S.C. § 1983. Regardless of whether a 42 U.S.C. § 1983
action is brought in state of federal court these individuals are entitled to assert a defense of good faith qualified immunity. Under the doctrine of qualified immunity, an individual(s) is immune from trial if the actions complained of were taken in good faith in the performance of one’s duties and the acts do not violate any clearly established constitutional right. Harlow v. Fitzgerald, 457 U.S. 800 (1982). The State and its agencies are immune from suit brought under 42 U.S.C. § 1983. However, the ACIC supervisory board, the director, and other employees are amenable to suit. If judgment is rendered against the aforementioned individuals, they may be indemnified for actual damages pursuant to Ark. Stat. Ann. 12-3401 if the acts complained of were performed in good faith, without malice and in performance of their official duties.
The ACIC System Policies and Procedures along with the Data Quality Control Procedures are thorough. Even though the procedures are well written, there is always the potential for a lawsuit. As long as the procedures set forth are applied in a good faith manner by the Board and its employees I feel certain that my office can provide an adequate defense for your board and/or employees should the occasion arise.
The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General E. Jeffery Story.