Is the Warm Springs Sanitation Commission protected by sovereign immunity in Virginia?

Plain-English summary

A state senator asked whether the Warm Springs Sanitation Commission qualified for sovereign immunity. The AG concluded that it did, but only in the limited sense that municipal corporations get immunity in Virginia: protection for governmental functions, not proprietary ones.

Virginia sovereign immunity is layered. The Commonwealth itself is fully immune from tort liability unless it waives that immunity. Counties get the same full immunity as integral parts of the State. Cities and municipal corporations sit one step down: they enjoy immunity only when carrying out governmental functions, not when carrying out proprietary ones. The line between governmental and proprietary turns on facts and there is no bright-line test.

To figure out which tier the Warm Springs Sanitation Commission belonged in, the AG applied the Supreme Court of Virginia's six-attribute test: creation as a body corporate and political subdivision, creation to serve a public purpose, the usual corporate powers (seal, sue and be sued, contract, hold and dispose of property), eminent domain, the power to issue tax-exempt bonds, and management by a board or commission.

The Commission satisfied the criteria handily. The Sanitation Districts Law of 1946 created it as a body corporate to relieve the waters of the district for public health, granted it a common seal, the right to sue and be sued, contract authority, the power to acquire and dispose of property, eminent domain power (subject to § 25.1-102), and authority to issue bonds and adopt regulations. The Court's framework asks how many attributes an entity possesses, not whether it has all six, so the AG concluded a preponderance of the factors was met.

The AG closed with two cautions: immunity covered only governmental, not proprietary, activities, and whether any particular power was governmental or proprietary turned on facts not presented; and individual commissioners and employees could lose immunity through intentional misconduct or gross negligence.

Currency note

This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What's the difference between governmental and proprietary functions?
Governmental functions are tasks the entity performs as a delegate of the State, often regulatory or public-protective. Proprietary functions are more like running a business: providing a service for a fee, similar to what a private company might do. The Supreme Court has emphasized that there is no bright-line rule, and the analysis depends on the facts of each case.

Did the AG say the Commission was always immune for everything?
No. The AG emphasized that the immunity applied only to governmental activities, not proprietary ones. Activities that look like running a sewer utility for paying customers could be characterized as proprietary depending on the facts, which the opinion said it could not resolve.

Could a Commission member or employee still be sued personally?
Yes, on the right facts. The opinion noted that individual commissioners and employees can lose sovereign immunity through intentional misconduct or gross negligence, and depending on the facts and circumstances may not enjoy immunity at all.

Did the AG have to pin down every one of the six attributes?
No. The Supreme Court of Virginia said the test asks how many attributes the entity has, not whether it has all six. The more attributes, the more likely it is treated as a municipal corporation. The AG concluded a preponderance of the factors was met.

Background and statutory framework

Virginia's sanitation districts are creatures of the Sanitation Districts Law of 1946. Under that chapter, every sanitation district has a commission, established "as a body corporate, invested with the rights, powers and authority and charged with the duties set forth in this chapter." A "Commission" is defined as the body corporate or politic comprising a sanitation district and its inhabitants. The enabling law articulates the public purpose, "the relief of the waters of the district for public health," and grants the typical corporate powers (seal, sue and be sued, contract, hold property, eminent domain subject to § 25.1-102, issue bonds, accept gifts and grants, make rules).

The six-attribute test for whether an entity is a municipal corporation comes from the Supreme Court of Virginia, which asks how many attributes of a municipal corporation a disputed entity possesses. The AG also drew on prior opinions that had extended limited immunity to other special-purpose bodies, concluding the same analysis applied to the Warm Springs Sanitation Commission.

Citations

• Va. Code § 2.2-505 (Attorney General opinions)
• Va. Code § 25.1-102 (eminent domain limitation)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2012/12-033_Deeds.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

May 18, 2012

The Honorable R. Creigh Deeds
Member, Senate of Virginia
Post Office Box 5462
Charlottesville, Virginia 22905

Dear Senator Deeds:
I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented
You inquire whether the Warm Springs Sanitation Commission is entitled to governmental immunity.

Response
It is my opinion that, in certain circumstances, the Warm Springs Sanitation Commission is entitled to governmental immunity under Virginia law.

Applicable Law and Discussion
The doctrine of sovereign immunity is "alive and well" in Virginia. "Thus, the Commonwealth is immune from tort liability for the acts or omissions of its agents and employees unless an express statutory or constitutional provision waives that immunity." Counties, as integral parts of the State, also enjoy full immunity in such cases. Cities and municipal corporations, on the other hand, are entitled to immunity only in situations involving governmental, rather than proprietary functions.

Based on a review of case law and prior opinions addressing other bodies, I conclude that the Warm Springs Sanitation Commission is a municipal corporation, and therefore afforded sovereign immunity for its governmental actions. As the Supreme Court of Virginia has explained,

in categorizing a particular entity, the first inquiry is "how many attributes of a municipal corporation does the entity in dispute possess?" We have identified six attributes pertinent to that inquiry:

(1) Creation as a body corporate and politic and as a political subdivision of the Commonwealth;

(2) Creation to serve a public purpose;

(3) Power to have a common seal, to sue and be sued, to enter into contracts, to acquire, hold and dispose of its revenue, personal and real property;

(4) Possession of the power of eminent domain;

(5) Power to borrow money and issue bonds which are tax exempt, with interest on such bonds enjoying the same status under tax laws as the interest on bonds of other political subdivisions of the state;

(6) Management of the corporation vested in a board of directors or a commission.

The Warm Springs Sanitation Commission overwhelmingly satisfies these criteria. The Commission administers the Warm Springs Sanitation District, which was created pursuant to the Sanitation Districts Law of Nineteen Hundred and Forty-Six. This law provides that "[i]n and for each district ... created pursuant to this chapter or pursuant to a special act of the General Assembly, a commission is hereby created as a body corporate, invested with the rights, powers and authority and charged with the duties set forth in this chapter." "Commission," in turn, "means the body corporate or politic comprising a [sanitation] district and its inhabitants . . . ." Thus, the Commission clearly possesses the first and last elements.

The Commission's enabling legislation sets forth its public purpose: "the relief of the waters of the district for public health and the consequent improvement of conditions affecting the public health." The law further grants the Commission the following powers:

1. To adopt and have a common seal and to alter the same at pleasure;
2. To sue and to be sued;
3. In the name of the commission and on its behalf, to acquire, hold and dispose of its fees, rents and charges and other revenues;
4. In the name of the commission ... to acquire, hold, and dispose of other personal property for the purposes of the commission;
5. In the name of the commission ... to acquire by purchase, gift, condemnation or otherwise, real property or rights or easements therein, necessary or convenient for the purposes of the commission, ... provided that the right of condemnation granted herein shall be subject to the same provisions as are provided in § 25.1-102 concerning the condemnation of any property belonging to a corporation possessing the power of eminent domain by another public service corporation;
6. To borrow money for the purposes of the commission and to issue therefor its bonds ...
7. To accept gifts or grants or real or personal property, money, material, labor or supplies for the purposes of the commission and to make and perform such agreements and contracts as may be necessary or convenient in connection with the procuring or acceptance of such gifts or grants; . . .
8. To make and enforce rules and regulations for the management and regulation of its business and affairs and for the use, maintenance and operation of its facilities and properties, and to amend the same . . . .

Accordingly, because a preponderance of applicable factors are met and based on the application of immunity in similar instances, I conclude that the Warm Springs Sanitation Commission is a municipal corporation entitled to sovereign immunity.

I reiterate however that the sovereign immunity afforded municipal corporations arises only for governmental and not proprietary activities. Because no bright line rule exists to distinguish between governmental and proprietary functions, whether the exercise of any particular power by the Warm Springs Sanitation Commission would be governmental or proprietary would turn on facts not presented. In addition, the Attorney General refrains from issuing opinions on matters of fact. It should also be kept in mind that individual commission members or employees can lose the protection of sovereign immunity through intentional misconduct or gross negligence, and depending on the facts and circumstances, may not enjoy such protection at all.

Conclusion
Accordingly, it is my opinion that the Warm Springs Sanitation Commission would be found, in a proper case, to enjoy the protections of sovereign immunity.

With kindest regards, I am
Very truly yours,

Kenneth T. Cuccinelli, II
Attorney General