Ms. Paula G. Pumphrey, Interim Director Arkansas Adult Probation Commission 1210 Tower Building, 323 Center street Little Rock, Arkansas 72201
Dear Ms. Pumphrey:
This is in response to your request for an opinion on the following question:
Who is ultimately liable for monetary payment of liabilities assessed against an adult probation officer, who is neither a State nor County employee, while performing (in compliance with AAPC Standards and Guidelines) the duties and responsibilities of that position?
One clarification is necessary as a precedent to answering your question. Although this office has, in the past, addressed the employment status of Arkansas adult probation officers, (see e.g., Opinion Nos.88-135, 88-263 and 90-062), we have never opined that they are "neither . . . State nor county employee[s]". Our position is rather that in the absence of legislative clarification, we cannot conclusively state whether these individuals are state are county employees for all purposes. The particular context must be considered. For instance, we have stated that this office would, generally, provide representation to adult probation officers. Opinion No. 88-263. See also A.C.A. 16-13-221 (Supp. 1989). It is therefore my opinion that these individuals may be considered state employees for at least some purposes.
That being said, we may now address your question, which is who has the ultimate liability for monetary damages "assessed" against an adult probation officer. In my opinion, the answer to your question is that quite possibly no one is ultimately liable for such damages because at least in some instances, these officers will be immune from liability. Of course, this conclusion may depend upon the specific facts and circumstances surrounding a particular incident.
The immunity provisions, both for state and county employees, are discussed at length in Opinion No.89-341, a copy of which is enclosed. The conclusions in that opinion should be generally applicable to the question you have posed. In addition, the possible immunity of adult probation officers is discussed specifically in Opinion No. 88-263, a copy of which is also enclosed.
The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Elana L. Cunningham.