Are members of a Community Penalties Board personally liable when something goes wrong, or do they have immunity like other public officials?

Plain-English summary

A district attorney asked about the liability of members of a Community Penalties Board. The AG said the boards were created by statute and their members exercised a portion of the State's sovereign power, even if a board was organized as a nonprofit corporation. Members were therefore public officers or officials.

When carrying out governmental duties involving judgment and discretion, members had immunity from personal liability for mere negligence. Citing Smith v. Hefner, the opinion says individual liability requires a corrupt or malicious act, or action outside and beyond official duties. For official liability, the opinion says members would be included under the Tort Claims Act and Article 31A of Chapter 143. It does not identify the defendant to name in a lawsuit or describe filing procedure.

Currency note

This is a 1995 opinion about the board and law then in force. Check current statutes and later immunity decisions before assessing a present claim.

Background and statutory framework

N.C.G.S. §7A-755 created Community Penalties Boards and permitted the nonprofit form discussed in the opinion. The AG relied on the members' exercise of sovereign power, not the entity's form, in identifying them as public officers. The immunity rule was limited to governmental duties involving judgment and discretion and did not cover the misconduct described above.

Common questions

Does incorporation as a nonprofit remove public-officer status?

The AG said no. Members still exercised part of the State's sovereign power under the board's statutory duties.

Are members personally liable for an ordinary negligent decision made while exercising official judgment?

The opinion says they are immune from personal liability for mere negligence in that setting. It identifies corrupt, malicious and out-of-scope conduct as exceptions.

Does the opinion say who a claimant should sue or how to file?

No. It says members are included under the Tort Claims Act and Article 31A for official liability, but does not address the proper defendant or procedure.

Citations

• N.C.G.S. §7A-755 (board creation)
• Sansom v. Johnson, 39 N.C. App. 682 (1979) (public-officer status)
• Smith v. Hefner, 235 N.C. 1, 7 (1951) (personal immunity rule)
• Article 31A of Chapter 143 (official liability)

Source

• Landing page: https://ncdoj.gov/opinions/community-penalties-program-act-of-1983-liability-of-members-of-a-community-penalties-board/

Original opinion text

December 4, 1995

Frank R. Parrish, District Attorney
First Prosecutorial District
202 East Colonial Avenue
Elizabeth City, North Carolina 27909

RE: Advisory Opinion; Community Penalties Program Act of 1983; Liability of Members of a Community Penalties Board; N.C.G.S. §7A-775

Dear Mr. Parrish:

You request our opinion on the liability of members of a Community Penalties Board.

Community Penalties Boards are created by the General Assembly, N.C.G.S. §7A-755, and are given specific duties and responsibilities by law. Members of a Community Penalties Board exercise a portion of the sovereign power of the state, even if created as a non-profit corporation as allowed by N.C.G.S. §7A-755. Members of the Community Penalties Board are considered public officers or public officials of the state, since they exercise a portion of the sovereign power of the state. Sansom v. Johnson, 39 N.C. App. 682 (1979).

Members of a Community Penalties Board, as public officers or public officials of the state when performing public governmental duties involving the exercise of judgment and discretion, are clothed with immunity for mere negligence and may be held individually liable only for corrupt or malicious acts, or for acts beyond the scope of their duties. "It is settled law in this jurisdiction that a public official, engaged in the performance of governmental duties involving the exercise of judgment and discretion, may not be held personally liable for mere negligence in respect thereto. The rule in such cases is that an official may not be held liable unless it be alleged and proved that his act, or failure to act, was corrupt or malicious (citations omitted), or that he acted outside of and beyond the scope of his duties." Smith v. Hefner, 235 N.C. 1, 7 (1951). See also Strong's North Carolina Index 4th, Public Officers and Employees, Civil Liability, Sections 35-37 (1993). As far as official liability is concerned, as an officer of the state, members of the Board would be included under the Tort Claims Act and Article 31A of Chapter 143 of the General Statutes of North Carolina.

Should you have any further questions, please feel free to contact us.

Andrew A. Vanore,
Chief Deputy Attorney General