The campaign for election to the Nutmeg Board of Education has been heating up. Local attorney, Bill Alot, is running for one of two open seats, and he has gone on the attack. Nothing the Board of Education has done in the last four years, it seems, has been right. In his campaign stops, Bill has criticized the Board, the administration, and even the losing record of the football team. However, for the most part Bill’s attacks were greeted with apathy by the residents of Nutmeg. Bill decided, therefore, to take a new tack.
Bill started visiting each of the Nutmeg schools. As he wandered about, he was struck with the number of parent volunteers, and soon he had a theme for his campaign. Whenever he encountered parent volunteers, he would engage them in conversation about what they are doing and how the Nutmeg Public Schools would be lost without their assistance. After a little bit, Bill would then innocently ask the volunteer whether he or she has personal liability insurance. The reaction has been quite gratifying to Bill. The volunteer would typically say no and would then ask Bill why he would ask. In response, Bill would take the opportunity to speak gravely about the risks of litigation, personal liability, and the need for protection.
It did not take Bill long to create quite a problem. Several of the parent volunteers just quit, not wanting to take any chances regarding liability claims. Others called Mrs. Superintendent and Board members to ask whether Bill was right and what they are going to do about it. The Board members and Mrs. Superintendent tried to assure the parent volunteers that they were safe, but they had a hard time convincing them. For his part, Bill fanned the flames of concern; indeed, he wrote an op-ed piece in the Nutmeg Bugle entitled "At Risk – Life as a Volunteer in the Nutmeg Schools."
These concerns boiled over at the Board of Education meeting last week. During Citizen’s Comments, parent volunteer after volunteer stood up and expressed concern about potential liability. They asked pointed questions about liability, insurance, and claims against the Board of Education. Consistent with its practice, the Board members sat mute during Citizens’ Comments, and the tension grew. Finally, veteran Board member Bob Bombast decided he had to speak out.
"Life has its risks," Bob started. "When I became a Board member, I knew that there is the chance that I will be sued. That is just part of public service."
Bob’s words were cold comfort, and the next day, Mrs. Superintendent received a raft of resignations from parent volunteers. To make matters worse, Mrs. Superintendent got a concerned call from the president of the parent-teacher organization at Nutmeg High School. He told Mrs. Superintendent that he and the other officers of the PTO would be quitting unless the Board of Education would provide written assurance that they would be protected if they were sued.
What should the Nutmeg Board of Education do?
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The Board must make some policy judgments about whether and how it will rely on the work of volunteers. It can provide some assurances to its volunteers, but it must carefully decide how far to go.
The general rule is that volunteers may be protected by the indemnity statute. That statute provides that board of education members and school employees are indemnified and held harmless against claims made against them. This protection includes payment of reasonable attorneys’ fees, the cost of which can be significant. However, there are two important qualifications to this important protection. First, the school board member or employee must have been acting within the scope of his or her responsibilities. Second, the board member or school employee must not have acted in a wanton, reckless or malicious manner.
This protection reflects a broad public policy in favor of protecting board members and school employees. This protection has become increasingly important as the protections of governmental immunity have eroded in recent years. Historically, government officials have been immune from liability for discretionary acts taken within the scope of their responsibilities. However, since 1995, the courts have held that governmental immunity does not apply to claims by students in school when they are a member of an identifiable class of persons subject to immediate harm. Given that development in the law, there is now increased risk that a decision by a school board member or a school employee will result in a finding of liability.
This concern applies to volunteers as well. However, the protection of volunteers under the indemnity statute is not automatic. The indemnity statute provides that the indemnity statute protects "any volunteer approved by a board of education to carry out a duty prescribed by said board and under the direction of a certificated staff member." Given the public policy in favor of indemnification, formal board vote is not likely required, but these conditions applicable to volunteers assure that school districts are responsible only for volunteers whom they approve and supervise.
Given the potential liability boards of education can have for the actions of volunteers, two points are very important. First, there should be a clear procedure for approving and supervising volunteers. That way, the board will be able to distinguish (and not be responsible for) a situation in which an unapproved, unsupervised volunteer causes an injury. Second, officials should assure that the district is properly insured for the actions of volunteers. Otherwise, the district will be self-insuring against potential liability based on the actions of volunteers.
Finally, the PTO presents very different policy issues. The PTO is an independent organization that is not under the direct supervision of school officials. Since school officials do not supervise the actions of the PTO and its members, the school district should not be liable for their actions. To be sure, a PTO member can serve as a volunteer in an activity approved by the board of education and under the supervision of school officials. In such cases, the PTO member will be protected by the indemnity statute. However, when the PTO acts independently, it is on its own. Accordingly, it is advisable for the PTO (1) to incorporate as a non-profit organization (to shield its members from personal liability) and (2) to obtain appropriate insurance. School officials are not directly responsible for the PTO, but it may be appropriate to help PTO officials understand the limits of any board of education protection.