County attorney thankful for indemnification bill

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Pulaski County officials were sued after trying to cite Norfolk Southern for trains which blocked local crossings for more than five minutes.

Pulaski County may not have been successful in efforts to hold rail companies accountable for blocking local crossings but one good thing came out of trying.

A new Kentucky law calls for the state to pay defense costs if a county is sued while trying to enforce state law.

The bill, sponsored by State Senator Rick Girdler (R-15), stemmed from the efforts of Pulaski and McCreary counties to cite Norfolk Southern Railway in violation of KRS 277.200 and 525.140, which stated that trains could not block roadways for more than five minutes without receiving a fine.

The Pulaski citations were written for crossings near the Burnside depot - specifically, Richardson Lane - as well as several crossings in Ferguson. Most of the citations stated that trains were stopped for 15 to 20 minutes.

Norfolk Southern Assistant Supervisor Joshua Booker testified at trial that federal regulations require procedures while swapping out crews, which means a swap could take 15 to 20 minutes if everything goes perfectly. Residents had complained many stops took much longer.

Norfolk Southern entered a "conditional guilty plea" in Pulaski District Court in April 2018 -- pleading guilty to 11 misdemeanor citations for blocking public roads.

Then, the Association of American Railroads (AAR) on behalf of Norfolk Southern filed the federal suit against Pulaski County Attorney Martin Hatfield and Pulaski Sheriff Greg Speck in their official capacities, as well as their counterparts for McCreary County.

In January 2020, a federal judge ruled in favor of AAR -- stating that federal law supersedes state law when it comes to railroad commerce.

While the plaintiffs hadn't sought any monetary damages -- only seeking an injunction to prevent future citations -- Pulaski County was left with on the hook for legal fees after their insurance carrier at the time declined to defend the case.

Hatfield covered the tab with monies from his office's Traffic Safety Fund.

Wanting to ensure nothing similar happened again, Sen. Girdler introduced his bill during last year's General Assembly but it stalled after the House added amendments he couldn't accept and the long session became derailed by the COVID-19 pandemic.

"It was late in the session, and I didn't get an opportunity to get it through," Sen. Girdler said in January as he prepared to file it again as Senate Bill 29. "I'm getting it through this time."

Despite being a 30-day "short" session further taxed by the onslaught of pandemic-related bills the legislature had to consider, Sen. Girdler made good on his word -- for which Pulaski County Attorney Martin Hatfield expressed his gratitude.

"He deserves a lot of recognition," Hatfield said of Girdler. "The statute that would normally provide a defense to prosecutors only included language for judgments rendered, so the senator worked to protect county attorneys, commonwealth attorneys, attorney generals and deputies. He shepherded the whole thing through the system.

"From now on, we can get reimbursed for defending lawsuits that arise out of us doing our jobs as prosecutors."

SB 29 was approved unanimously by those present in both chambers when it came to a vote. The legislation was signed by Governor Andy Beshear on March 25.

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