dissenting.
Bad faith looms large when nourished with evidence of inability to identify the source of information and with evidence of complete lack of follow-up on the part of a professional investigator. Defaming a lawyer and intruding into the client-attorney relationship upon nothing more than a "gut feeling" is bad faith. Too, a trained, professional investigator who circulates a memorandum defaming an attorney and destroying the attorney's reputation upon a "gut feeling" so flimsy as an unidentified, unchecked, and unverifiable source is acting outside the seope of his employment. This irresponsible action on the part of the professional investigator goes to the heart of effective representation of a client by his attorney. This kind of interference with effective representation should not be tolerated; therefore, I dissent.
Why is bad faith so evident? First, because the "romantic involvement" is based upon a single observation. Secondly, the observation by the professional investigator reveals absolutely nothing to indicate a "romantic involvement." As the Majority points out, the observation revealed that Alston appeared to be happy and high-spirited while talking to his attorney. If every time an attorney visits his client in prison and the client appears happy and high-spirited, a "romantic involvement" memorandum or some other derogatory memorandum goes into the file; then, it appears to me that there is a clear attempt to interfere with the attorney-client relationship and the effective assistance of counsel. This is bad faith on the part of the professional *1345investigator and places his action outside the scope of his employment.
Why is the professional investigator's circulation of the "romantically involved" memorandum outside the seope of his employment? First, because the memorandum was circulated without any investigation. It was circulated on a "gut feeling" instead. A professional investigator is paid by the State to investigate. He is employed to unearth facts which expose matters of importance to his employer. He is not employed to write memoranda on his "gut feelings" absent any relevant facts. Secondly, the professional investigator's superior, Edward Cohn, Superintendent of the Indiana Reformatory, testified that he assumed that the professional investigator's Memorandum was fuctual in nature and that the Memorandum would not have been conveyed to him unless there had been some sort of investigation. The Memorandum was neither factual in nature or the result of some sort of investigation. To have been acting within the scope of his employment, there had to be both.
The immunity shield afforded by 1.0. 34-4-16.5-8(7) protects an employee of the State only when he is enforcing rules and regulations while acting in the scope of his employment. If he is acting outside his scope of employment, the immunity shield disappears, and the employee must stand as any other citizen. He must answer to those harmed by his irresponsible acts. No one would contend that the immunity shield would protect a State employee whose conduct was outrageous or willful and wanton. Our Indiana Supreme Court has made it quite clear that under this section of the Statute, 1.C. 84-4-16.5-8(7), "[i]t does not follow, ... that the statute necessarily grants immunity for all acts of law enforeement officers committed while engaged in the enforcement of the law." Seymour Nat'l Bank v. State (1981), Ind., 422 N.E.2d 1223, reh. 428 N.E.2d 203, 204.
A "gut feeling" memorandum without any factual basis can hardly be within the scope of employment of a professional investigator. Too, it is not clear as to what rule or regulation was being enforced. It is doubtful that there is a rule or regulation against prisoners being happy when they visit and consult with their attorney. It is equally doubtful that there is any rule or regulation against a prisoner being "high-spirited" while consulting with his attorney. The immunity shield was never intended to protect baseless defamation or to protect those who attempt to interfere with the effective assistance of counsel.
Bad Faith was found by the trial court. This finding of fact is amply supported by the record. It can not be ignored on appeal. The Indiana Tort Claims Act merely encoded the common law tenets of sovereign immunity. See Krueger v. Bailey (1980), Ind.App., 406 N.E.2d 665; Board of Commissioners of Delaware County v. Briggs (1975), 167 Ind.App. 96, 337 N.E.2d 852. Prior to the Indiana Tort Claims Act and prior to Campbell v. State (1972), 259 Ind. 55, 284 N.E.2d 733,
The common law immunity privilege was absolute for judges, legislators, and high ranking administrative officials regardless of their motives in acting so long as the act was within the jurisdiction of their official capacity. The privilege extended inferior agents and employees was conditioned on the nature of the agent's performance. Three considerations are foremost in a determination as to the applicability of this qualified privilege: (1) whether the agent's actions were undertaken in furtherance of a "discretionary" rather than "ministerial" function; (2) whether the action taken was within the scope of the agent's employment; and (8) whether the action was made in good faith (improper motives or a malicious purpose in exercising the discretion would, at common law, vitiate the immunity privilege).
Sovereign Immunity in Indiana-Requri-em?, 6 Ind.L.Rev. 92, 104 (1972) (footnotes omitted).
Under common law, those governmental employees not in the highest positions of authority were afforded "qualified" or "conditional" immunity for acts committed in the performance of their duties which *1346resulted in loss or personal injury. Sovereign Immunity in Indianao-Requiem?, supra; see generally Wallace v. Feehan (1934), 206 Ind. 522, 190 N.E. 438.
No one could convincingly argue that a State employee has absolute immunity. Driving a State owned automobile blindfolded down a heavily traveled highway causing injuries and property damage to fellow travelers is an extreme example, but there are many more examples which exclude the shield of immunity. Defaming members of the legal profession without a factual basis or meaningful investigation is another example of bad faith where immunity should not attach. "Gut feelings" do not an investigation make and the trial court so found as the fact finder. The trial court found that the professional investigator acted in bad faith. Undeniably, the professional investigator was acting outside the scope of his employment. I would affirm the judgment of the trial court.