May 14, 1987
Honorable Doug Fosheim
State Representative
351 Wisconsin Avenue SW
Huron, South Dakota 57350
OFFICIAL OPINION NO. 87-16
Liability of volunteer providing building to township board
Dear Representative Fosheim:
On behalf of the Beadle County, Richland Township Board you have requested an opinion concerning the following factual situation:
FACTS:
In Richland Township of Beadle County, South Dakota, due to vandalism problems, township functions have been moved to a building owned by a township board member. When the move was made the township board inquired as to the cost of liability insurance to protect the owner of the building and the price quoted for same was prohibitive. The township board would like to know whether or not HB 1317 will exempt a township board member from liability if he offers a building owned by him for township functions such as elections and township board meetings. It is my understanding that this particular board member receives a nominal amount of money to defray actual costs for opening the building for township functions. He does not receive compensation in any meaningful manner for this service. Thus, it could be said that he remains a volunteer in providing facilities for the township in which the township board may meet.
Based upon the foregoing facts, you have asked the following
QUESTION:
Whether or not HB 1317 exempts a township board member from liability when he is providing a meeting place for township functions without compensation or with nominal expense for reimbursements.
RESPONSE:
House Bill 1317, as passed by the 1987 Legislature, is entitled "An Act to limit the liability of directors, trustees, officers and volunteers of nonprofit corporations, organizations, certain hospitals and governmental entities." The word "volunteer" is defined in the Act as "an individual performing services for a nonprofit organization, a nonprofit corporation, a hospital organized pursuant to chs. 34-8, 34-9 and 34-10, or a governmental entity without compensation, other than reimbursement for actual expenses incurred. The term includes a volunteer serving as a director, officer, trustee, or direct service volunteer." The Act also defines governmental entities to include counties, municipalities, townships, school districts and other governmental associations and agencies. The Act then provides that if the individual is acting in good faith within the scope of his official functions and duties for the nonprofit organization and the damage or injury was not caused by wi1lfu1 and wanton misconduct there is immunity from civil liability brought in any court in this state.
Based upon the plain words of the statutes it is clear that the Legislature intends to extend this immunity as far as possible. A recent opinion by the South Dakota Supreme Court would lead one to believe that the extension of sovereign immunity by the Legislature is possible under the Constitution of the State of South Dakota. See In re Request for Opinion, 379 N.W.2d 822 (S.D. 1985). On the other hand, the Supreme Court has indicated a reluctance to extend sovereign immunity to certain subdivisions of government in the expansive matter indicated in the advisory opinion. See Oien v. City of Sioux Falls, 393 N.W.2d 287 (S.D. 1986). Nor have townships faired especially well. See Zens v. Aberdeen Township, 386 N.W.2d 475 (S.D. 1986).
In addition, since the meetings contemplated in your facts consist of governmental body at work, the possibility exists that the situations creating liability under 42 U.S.C. § 1983 could arise. This is a particular danger where elections and the like are held. Of course, sovereign immunity as a state doctrine is completely unavailing in a § 1983 liability suit. Ordinarily, one would not think of any exposure arising to the owner of a building under the scenario contemplated here, however, as you indicate that the owner of the building is a member of the Township Board complications could arise, I have found it does not pay to under estimate the creativity of plaintiffs' counsel.
Accordingly, my answer to your question is that on its face, 1987 House Bill 1317 provides the desired immunity; however, the existence and extent of this immunity is subject to application by the South Dakota Supreme Court. In the event of federal liability it would have no application whatsoever. It would be with extreme reluctance that I would advise a citizen in this situation to forego basic liability insurance.
Although you have not asked this question, I would direct your attention to SDCL 8-9-2. This statute provides:
No township officer shall become a party to or interested directly or indirectly in any contract made by the township of which he is an officer; and every contract or payment voted for or made contrary to the provisions of this section is void. Any violation of this section shall be a malfeasance in office for which the officer so offending may be removed from office.
Based upon the foregoing statute, there is a strong possibility that the agreement to provide "a nominal amount of money to defray actual costs for opening the building for township functions" may be in violation of this statute. You will note under Official Opinion 70-47, and others, that if the expenditure can be found to come within the exceptions of SDCL 6-1-2 it may still be legal in spite of the apparent prohibition contained in the section set out above and in SDCL 6-1-1.
If you have any additional questions, please do not hesitate to contact me.
Sincerely,
Roger A. Tellinghuisen
ATTORNEY GENERAL
