Kansas Attorney General Opinion 1992-104

ROBERT T. STEPHAN
ATTORNEY GENERAL July.31, 1992
ATTORNEY GENERAL OPINION NO. 92- 104
William F. Bradley, Jr.
Attorney at Law
2000 Epic Center
301 N. Main St.
Wichita, Kansas 67202-4820
Re: State Boards, Commissions and Authorities --
Information Network of Kansas -- Creation;
Governing Board; Applicability of Kansas Tort
Claims Act
State Departments; Public Officers and Employees --
Kansas Tort Claims Act -- Definitions; Liability of
Governmental Entities; Applicability of Act to
Information Network of Kansas
Synopsis: The provisions, both protections and limitations,
of the Kansas tort claims act apply to the board of
directors of the information network of Kansas
established pursuant to K.S.A. 1991 Supp. 74-9301
et seq. Cited herein: K.S.A. 1991 Supp.
74-9301; 74-9302; 74-9304; 74-9308; K.S.A. 75-6101;
K.S.A. 1991 Supp. 75-6102; K.S.A. 75-6103; K.S.A.
1991 Supp. 75-6104.
Dear Mr. Bradley:
As chairman of the board of directors of the information
network of Kansas (INK) you request our opinion on the
applicability of the Kansas tort claims act (KTCA), set

forth at K.S.A. 75-6101 et seq., to the members of the
board.
The KTCA provides at K.S.A.75-6103(a):
"Subject to the limitations of this act,
each governmental entity shall be liable
for damages caused by the negligent or
wrongful act or omission of any of its
employees while acting within the scope of
their employment under circumstances where
the governmental entity, if a private
person, would be liable under the laws of
this state."
For purposes of the KTCA "governmental entity" is defined as
"state or municipality." K.S.A. 1991 Supp. 75-6102(c).
"State" is defined by subsection (a) of the same statute as
"the state of Kansas and any branch of state government, or
any agency, authority, institution or other instrumentality
thereof." Therefore, the first issue is whether INK falls
within the definition of governmental entity.
INK was created in 1990, pursuant to K.S.A. 1991 Supp. 74-9301
et seq. K.S.A. 1991 Supp. 74-9303 provides:
"There is hereby created a body politic
and corporate to be known as the
information network of Kansas, Inc. INK
is hereby constituted as a public
instrumentality and the exercise by INK of
the authority and powers conferred by this
act shall be deemed and held to be the
performance of an essential governmental
function."
The purpose and duties of INK are further set forth at K.S.A.
1991 Supp. 74-9302 and, generally stated, relate to electronic
access to public information. K.S.A. 1991 Supp. 74-9303
establishes a governing body and membership on that body.
K.S.A. 1991 Supp. 74-9304 discusses the duties and
responsibility of INK and its board of directors and requires
that state agencies ". . . cooperate with INK in providing
such assistance as may be requested for the achievement of its
purpose." K.S.A. 1991 Supp. 74-9308 permits moneys received
by INK to be deposited in the state treasury and credited to
INK or maintained in an interest bearing account in Kansas.
K.S.A. 1991 Supp. 74-9307 provides that employees of INK shall

be considered state employees under the deferred compensation
plan, the Kansas public employees retirement system, the
employment security law, the workers' compensation act, and
other benefit programs applicable to state employees.
It appears from the provisions of K.S.A. 1991 Supp. 74-9301
et seq. that the act establishing INK creates a
governmental entity as defined by K.S.A. 1991 Supp. 75-6102.
Thus, it is our opinion that the provisions of the KTCA
apply to INK. The remaining issue is whether the board of
directors fit the definition of "employees," as that term is
used in the KTCA.
K.S.A. 1991 Supp. 75-6102(d) defines an "employee" covered by
the KTCA to mean:
"Any officer, employee, servant or
member of a board, commission,
committee, division, department, branch or
council of a governmental entity,
including elected or appointed officials
and persons acting on behalf or in
service of a governmental entity in any
official capacity, whether with or without
compensation . . . but does not otherwise
include any independent contractor under
contract with a governmental entity. . .
. Employee also includes former employees
for acts and omissions within the scope of
their employment during their former
employment with the governmental entity."
(Emphasis added).
See also, Attorney General Opinions No. 88-62, 88-48,
87-97, 87-13, 86-177, 86-155, 86-109, and 86-45. Collins v.
Heavener Properties, Inc., 245 Kan. 623 (1989) discusses
applicability of the act to a board of county commissioners.
The board of directors of INK is statutorily required and
empowered to act on behalf of an entity which we have opined
is a governmental entity. Thus, in so acting, each serves the
governmental entity known as INK. In examining the provisions
of K.S.A. 1991 Supp. 74-9301 et seq., the KTCA and the
above cited authority, it appears to this office that each
member of the board of directors for INK meets the KTCA
definition of "employee." Thus, it is our opinion that the
terms, protections and limitations contained in the Kansas
tort claims act, set forth at K.S.A. 75-6101 et seq.,

apply to the board of directors of the information network of
Kansas, established pursuant to K.S.A. 1991 Supp. 74-9301 et
seq.
We note that the applicability of the KTCA does not
encompass certain acts by governmental officials (e.g. acts
outside the scope of authority, malicious acts, etc.) and does
not negate potential liability of the governmental entity for
negligent acts not exempted pursuant to K.S.A. 75-6104.
However, it is our opinion that the members of the board of
directors of INK enjoy some protection under the KTCA as
generally set forth by K.S.A. 75-6101 et seq.
Very truly yours,
ROBERT T. STEPHAN
ATTORNEY GENERAL OF KANSAS
Theresa Marcel Nuckolls
Assistant Attorney General
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