Are unpaid volunteers on a Mississippi state-board advisory panel covered by the Tort Claims Act when they're acting in that role?
Plain-English summary
The Mississippi State Board of Dental Examiners has authority under Section 73-9-13(q) to hire technical and professional personnel to do dental-office sedation site visits and help the Board decide whether to issue anesthesia permits. The Board appointed a Mississippi Anesthesia Advisory Panel to assist with anesthesia regulations. The panelists are volunteers and are not paid.
The Board's executive director asked: if a panelist is sued in connection with their panel work, are they covered by the Mississippi Tort Claims Act (MTCA)?
The AG said yes. The MTCA's definition of "employee" in Section 11-46-1(f) is "very broad." It explicitly covers "elected or appointed officials and persons acting on behalf of the state...in any official capacity, temporarily or permanently, in the service of the state...whether with or without compensation." It carves out only independent contractors. Volunteer advisory panelists fit comfortably within that definition.
That means: if a panelist, while doing panel work, allegedly causes harm covered by the MTCA, the Act's framework applies. The State has limited waived sovereign immunity for certain torts of its employees, the panelist can claim the Act's immunity protections for acts within the scope of duties, and the State (rather than the panelist personally) is the proper defendant in most situations.
The AG cautioned that whether the MTCA actually applies to any particular claim is a fact question. The AG can opine on legal coverage in the abstract, but specific incidents have to be evaluated based on the facts.
What this means for you
For Mississippi advisory panel and board volunteers
If you serve as an unpaid volunteer on a Mississippi state board, advisory panel, or commission and you are appointed to act on behalf of the state, the MTCA's framework treats you like a state employee for liability purposes. You should:
- Confirm you are formally appointed (in writing, by board action recorded in the minutes)
- Stay within the scope of your appointed duties
- Document your work consistent with the appointing entity's procedures
- Notify the appointing board or agency immediately if you receive any claim or threat of claim
Volunteer status does not strip you of MTCA coverage. The "without compensation" phrase in Section 11-46-1(f) is there precisely to include volunteers.
For state boards using volunteer panels
Document the appointment formally. A volunteer who is "acting on behalf of the state" needs traceability:
- Resolution or order of appointment
- Defined scope of duties
- Reporting structure to the appointing body
These features are how a court (or the State's defense counsel) confirms the panelist was actually acting within the scope of their state duties at the time of the incident. Loose, undocumented arrangements weaken MTCA coverage.
Also notify panelists, in writing, that they are covered under the MTCA. Many volunteers worry about personal liability and decline service. Knowing they are covered (subject to scope and good-faith conditions) removes that obstacle to recruitment.
For attorneys representing state boards
When a claim names a volunteer panelist personally, your defense should ordinarily be:
- The panelist is a state "employee" within Section 11-46-1(f)
- The conduct was within course and scope of duties
- Therefore, the State (or the appointing board) is the proper defendant under the MTCA
- The panelist is entitled to dismissal in their individual capacity
The AG explicitly cited the prior Howell (1996) opinion (Board investigator), Conerly (2002) opinion (UMMC volunteer faculty), and Hyde-Smith (2012) opinion (general volunteer guidance) as confirming this analysis for the Dental Board's anesthesia panel.
For people considering claims against advisory panel members
If a volunteer panelist's actions in their state role caused you harm, the MTCA framework probably applies, which means:
- You proceed against the State or the appointing board, not the panelist personally
- You are subject to the MTCA's notice-of-claim and limitations provisions
- Damages are subject to the MTCA's caps
- Some categories of conduct (discretionary functions, malicious or fraudulent acts outside scope) may fall outside MTCA coverage
Consult a Mississippi attorney to evaluate whether your specific claim falls within or outside the MTCA's framework.
For other Mississippi agencies with volunteer advisory bodies
This opinion is not unique to dental anesthesia. The same analysis applies broadly: volunteers serving on agency advisory panels, boards, and commissions, when properly appointed and acting within scope, are covered under the MTCA. The Howell, Conerly, and Hyde-Smith opinions cited here have been the AG's consistent view for decades.
Common questions
Q: Does "employee" really include unpaid people?
A: Yes. Section 11-46-1(f) explicitly says "whether with or without compensation." This is a deliberate legislative choice to make sure volunteers are not stranded.
Q: What about independent contractors?
A: Section 11-46-1(f) excludes independent contractors. The line between an "appointed official acting on behalf of the state" and an "independent contractor" can be fact-specific. Volunteer advisory panelists who serve at the appointment of a state board, take direction from the board, and have defined duties are generally not independent contractors. A privately retained consultant who bills the agency for project work is.
Q: What if the panelist acts maliciously or outside their authorization?
A: The MTCA's protection covers acts within course and scope of duties. Malice, fraud, or actions outside the scope can fall outside MTCA protection. The AG opinion did not address that scenario specifically; it addressed the general legal coverage question.
Q: Does the panelist need any insurance personally?
A: That is a risk-management question, not strictly a legal one. With MTCA coverage, the State is the defendant for in-scope conduct. Some volunteers prefer their own personal umbrella coverage as a backup for out-of-scope or contested-scope situations. Discuss with the appointing board.
Q: Does this apply if the panel does only paper review (no site visits)?
A: Yes. The MTCA covers the role, not the activity. If the panel member is appointed to act on behalf of the state and is performing the appointed duties, MTCA coverage applies whether the work is on paper, in person, or electronic.
Q: What about the panel members' professional liability for their underlying field?
A: A dentist or anesthesiologist's professional license, professional malpractice exposure, and personal practice risks are separate from MTCA coverage. MTCA applies to their work as a panelist for the Board, not to their separate professional practice.
Q: How does the MTCA's notice-of-claim provision interact with this?
A: A claimant against a panel member (in their state-role capacity) must comply with the MTCA's pre-suit notice requirements. Failure to comply can bar the claim. This is one reason the AG noted that whether the MTCA applies to a "particular claim" is a fact-specific determination.
Background and statutory framework
Mississippi's Tort Claims Act, Section 11-46-1 et seq., is the central liability framework for state and local government tort claims. Before the MTCA, sovereign immunity barred most tort suits against the State and its subdivisions. The MTCA partially waived that immunity for specific tort claims arising from acts of state and local employees within the course and scope of employment, while preserving immunity for other categories (discretionary functions, certain law enforcement activities, etc.).
The Act's definition of "employee" in Section 11-46-1(f) is intentionally broad. The legislature wanted volunteers, appointed board members, and others acting on behalf of the state to be covered, both because those actors needed protection (otherwise no one would volunteer) and because the State wanted control over how claims against state activities were handled.
The Section 11-46-1(f) definition includes:
- "any officer, employee or servant of the State of Mississippi or a political subdivision of the state"
- "elected or appointed officials"
- "persons acting on behalf of the state or a political subdivision in any official capacity, temporarily or permanently, in the service of the state or a political subdivision"
- "whether with or without compensation"
- "firefighters who are members of a volunteer fire department that is a political subdivision"
It excludes:
- "a person or other legal entity while acting in the capacity of an independent contractor"
Past AG opinions applying the definition broadly:
- Howell (1996): a part-time investigator of the Board of Dental Examiners is an "employee" under Section 11-46-1(f)
- Conerly (2002): an unpaid volunteer faculty member at UMMC performing teaching duties is afforded MTCA coverage
- Hyde-Smith (2012): an authorized volunteer acting within scope of volunteer duties is covered
The Anesthesia Advisory Panel slots into this line. The 2021 opinion is short but clear: volunteer advisory panelists are MTCA-covered employees when acting within the scope of their state appointment.
The AG flagged one limit: whether the MTCA covers a particular claim is a fact-bound question. The AG's office does not opine on factual claim disputes (Section 7-5-25 limits AG opinions to questions of state law). For any specific claim, the local government (or here, the appointing board and the State) makes the coverage determination based on the facts.
Citations and references
Statutes:
- Miss. Code Ann. § 7-5-25, AG opinions limited to state law
- Miss. Code Ann. § 11-46-1(f), MTCA definition of employee
- Miss. Code Ann. § 73-9-13(q), Dental Board authority to employ technical and professional personnel
Prior AG opinions:
- MS AG Op., Sutton at 3 (Apr. 22, 2016), MTCA application is a question of fact
- MS AG Op., Lucas at 2 (July 24, 2009), MTCA provides limited waiver of sovereign immunity
- MS AG Op., Howell at 3-4 (Mar. 8, 1996), Board part-time investigator is an employee
- MS AG Op., Conerly at 2 (Mar. 29, 2002), UMMC volunteer faculty covered
- MS AG Op., Hyde-Smith at *1 (Dec. 21, 2012), authorized volunteer covered
Source
- Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
- Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2021/07/C.Hutchinson_July-13-2021-Mississippi-Anesthesia-Advisory-Panel-Tort-Claims-Act.pdf
Original opinion text
July 13, 2021
Mr. Chris L. Hutchinson
Executive Director
Mississippi State Board of Dental Examiners
600 East Amite Street, Suite 100
Jackson, Mississippi 39201-2801
Re: Mississippi Anesthesia Advisory Panel - Tort Claims Act
Dear Mr. Hutchinson:
The Office of the Attorney General has received your request for an official opinion.
Background
Mississippi Code Annotated Section 73-9-13(q) grants authority to the Mississippi State Board of Dental Examiners ("Board") to employ technical and professional personnel to conduct dental office sedation site visits to assist the Board in its determinations on whether to issue permits enabling applicants to administer anesthesia pursuant to Board regulations. You state that members of the Mississippi Anesthesia Advisory Panel have been appointed by the Board to assist in implementing Board regulations governing the administration of anesthesia by Mississippi licensed dentists. Members of the Advisory Panel are volunteers and do not receive compensation for their time.
Question Presented
Does the Mississippi Tort Claims Act ("MTCA") extend protection to members of the Mississippi Anesthesia Advisory Panel ("Advisory Panel") duly appointed by the Board?
Brief Response
Members of the Advisory Panel fit within the broad definition of "employees of the state of Mississippi" as set forth in Section 11-46-1(f) and, when acting within the course and scope of their duties, are entitled to the protection of the MTCA.
Applicable Law and Discussion
At the outset, we must note that whether the MTCA applies to a particular claim depends on questions of fact. MS AG Op., Sutton at *3 (Apr. 22, 2016) ("Whether a claim is subject to defenses, including the applicability of the Tort Claims Act, is a determination that must be made by the local government based on the facts of the claim."). This office cannot address questions of fact by way of an official opinion. See Miss. Code Ann. § 7-5-25.
Section 73-9-13 sets forth the powers and duties of the Board. It provides, in part:
The board shall have the following powers and duties:
...
(q) To employ, in its discretion, technical and professional personnel to conduct dental office sedation site visits, administer and monitor state board examinations and carry out the powers and duties of the board.
The MTCA "provides a limited waiver of sovereign immunity by the State and its political subdivisions for claims for money damages arising from certain torts of these governmental entities and torts of their employees while acting within the course and scope of their employment." MS AG Op., Lucas at *2 (July 24, 2009). Section 11-46-1(f) defines the term "employee" applicable to the MTCA:
(f) "Employee" means any officer, employee or servant of the State of Mississippi or a political subdivision of the state, including elected or appointed officials and persons acting on behalf of the state or a political subdivision in any official capacity, temporarily or permanently, in the service of the state or a political subdivision whether with or without compensation, including firefighters who are members of a volunteer fire department that is a political subdivision. The term "employee" shall not mean a person or other legal entity while acting in the capacity of an independent contractor under contract to the state or a political subdivision;
Miss. Code Ann. § 11-46-1(f) (emphasis added). This definition is "very broad." MS AG Op., Howell at *3 (Mar. 8, 1996).
As noted in your request, we have previously opined that a part-time investigator of the Board is deemed an "employee" as defined in Section 11-46-1(f), id. at 4, and that an unpaid volunteer faculty member at UMMC performing teaching duties is afforded coverage under the MTCA. MS AG Op., Conerly at 2 (Mar. 29, 2002); see also MS AG Op., Hyde-Smith at *1 (Dec. 21, 2012) ("Therefore, it is the opinion of this office that if a volunteer, acting with the authorization and knowledge of the agency and acting within the course and scope of their volunteer duties, injures a visitor, the agency and volunteer would be afforded coverage under the Mississippi Tort Claims Act for any claims made by the injured visitor.").
It is the opinion of this office that members of the Advisory Panel fit within the broad definition of "employees of the state of Mississippi" as set forth in Section 11-46-1(f) and, therefore, when acting in the course and scope of their duties, are entitled to the protection of the MTCA.
If this office may be of any further assistance to you, please do not hesitate to contact us.
Sincerely,
LYNN FITCH, ATTORNEY GENERAL
By: /s/ Phil Carter
Phil Carter
Special Assistant Attorney General