Volunteer protection update.

Volunteer Protection Update

Two federal proposals may move the states to action.

While the states continue to pass volunteer protection acts in one form or another, the federal government is still wrangling with the concept. Introduced in February by Representative John Porter (RIL), the Volunteer Protection Act of 1991 (House Resolution 911) may fare no better than previous incarnations.

The bill seeks to protect volunteers from liability in cases when they have acted in good faith in carrying out official duties and functions of the organization. Volunteers are people performing services for a nonprofit organization or governmental entity without compensation and include volunteer directors, officers, and trustees.

H.R. 911 does not describe a federal law protecting volunteers. It provides incentives to individual states and territories to enact their own protection statutes. As with predecessors, this bill likely will encounter opposition from the trial lawyers associations and other groups that feel the livelihood of members may be at stake if certain classes of individuals are no longer liable for their actions.

The bill is to promote the interests of social service program beneficiaries and taxpayers; its second purpose is to sustain the availability of nonprofit and governmental programs that depend on volunteer contributions.

The bill appears to be tailored to attract the sympathy of members of Congress who are more willing to vote for bills that serve social interests and the underprivileged. And because H.R. 911 does not preempt state tort law and specifically provides that liability is unaffected for organizations themselves, it may placate the trial lawyers.

Liability protection for volunteers under section four of the bill is very broad. Liability will not attach to any volunteer--including officers, directors, and trustees--for "any tort claim alleging damage or injury from any act of the volunteer on behalf of the organization or entity" if certain conditions are met. The conditions are relatively straightforward:

* The volunteer must have been acting in good faith within his or her official functions and duties within the organizational entity. * Damage or injury cannot have been caused by willful and wanton misconduct by an individual.

Porter's bill also allows states to impose their own conditions on protection from tort liability. In this respect the bill can be tailored to the concerns of practically any special-interest group. For example, a state can require that a nonprofit organization adhere to "risk management procedures, including mandatory training of volunteers."

Second, if a state so deems, an organization will be unable to shield itself from liability "to the same extent as an employer is liable, under the laws of that state, for the acts or omissions of its employees." For a state that imposes this second condition, the benefit to associations would be substantially reduced.

Third, a state can withhold protection if during the time the alleged wrong occurred the volunteer in question was operating a motor vehicle or a vessel, aircraft, or other vehicle for which a pilot's license is required.

Fourth, a state can exempt the case of a suit brought by an appropriate officer of the state or local government to enforce a state, federal, or local law; state antitrust laws come immediately to mind.

Lastly, a state can fashion the act so that it will apply only if the organization provides a financially secure source of recovery for individuals who suffer injury as a result of actions taken by a volunteer on behalf of the organization or entity--for example, with an insurance policy.

The incentive to enact? For states that enact a volunteer protection act within two years of the enactment of H.R. 911, the Secretary of Health and Human Services can increase by 1 percent the fiscal year allotment made to that state to carry out the Social Services Block Grant Program.

The term state includes not only traditional states, but Washington, D.C., Puerto Rico, the Virgin Islands, Guam, American Samoa, the Northern Mariana Islands, and other territories of the United States or any political subdivision of a state, territory, or possession.

Also to be considered is the Model State Volunteer Service Act endorsed by Attorney General Dick Thornburgh late last year. This initiative has the direct support of President Bush and seeks to provide broad blanket protection to association volunteers. States can adopt the model act to provide immunity for all volunteers in civil suits on the basis of any volunteer act or omission as long as he or she was acting in good faith and within his or her official function.

The act also allows a doctrine of respondent superior that usually applies in employee-employer situations: If an act or omission is proven, a nonprofit organization may be liable even though the volunteer is not. The act lists as an exception to the exemption provided to volunteers those negligent acts or omissions involving the operation of a motor vehicle--although the amount one may recover is limited to the applicable insurance coverage maintained by or on behalf of a volunteer.

The model act's commentary makes clear that the blanket exemption given to volunteers is meant to apply to all types of negligence--that is, mere negligence as well as gross negligence and even claims under strict liability.

The Porter bill and the Model State Volunteer Service Act are strong encouragement for the states to enact laws protecting volunteers in the 1990s.

George D. Webster is general counsel to ASAE and a partner in Webster, Chamberlain & Bean, a Washington, D.C., law firm.