by Lucien C. Gwin III
Have you ever been asked to serve on a public/quasi-public or even a private board or commission of any kind? Sometimes, serving on a board can demand a large amount of time and require a great deal of responsibility. So, why would/should anyone serve on a board? The answer is simple: It is vital that we have civic-minded and intelligent individuals serving on these boards because government and business could not function without them.
Towns and counties all over America, as well as private businesses and charities, are run by voluntary boards and commissions. Often decisions made by these boards are mundane, but there can be instances where major life-altering decisions are made by such boards and commissions.
In Mississippi, there are various boards and commissions on which a person could be asked to serve. Most of the time, this service will be voluntary with little or no compensation at all. Examples of such boards are school boards (public and private), hospital boards, housing authorities, airport boards, humane societies, bank boards, planning and/or zoning boards, various church boards and committees, and state agencies’ boards.
For the purposes of this article, however, the question that I will raise is this: In serving on such a board or commission, does one expose oneself to personal liability as a board or commission member? The answer is almost certainly yes; a board member may be held liable for wrong or poor decisions from any such boards or commissions as those mentioned above. Furthermore, a board member could be held liable for anything that went wrong as a result of the board’s decisions even though the member perfectly performed the duties of such a board or committee.
In light of the fact that a board or committee member can be held personally liable, the next question is this: How can a board member be protected from becoming liable any time things go wrong because of the board’s decision? (There always will be things that go wrong.)
The following are some questions that are important to ask when you are selected to serve on any board or commission:
1) How much time is being asked of you to serve on the board?
2) What are the specific duties?
3) What are the specific responsibilities of the board---i.e., will it be employing people, making business decisions, making governmental decisions that will affect the lives of other people, etc.?
4) Will the board be managing money? (Money is almost always involved with any board regardless of whether it is for profit or not.)
5) Who handles the monies, and what are the checks and balances assuring monies are properly utilized for the particular board or commission? Is there an annual audit conducted by an independent auditor? Is there CPA oversight?
6) Has the board ever been sued? (Public school boards are often prey to litigation.)
7) In what ways could a board member be personally liable in serving on a given board? (If employees are involved, there is almost always going to be some exposure to liability.)
8) Does the board/commission carry errors-and-omissions insurance which would cover attorneys’ fees and a possible judgment that could be rendered against any particular board member? How much insurance coverage is available? (You can never have too much insurance.)
9) Are you qualified to serve on the particular board in question? If so, what contribution could you make?
In my career, I have served on several boards both public and private. I have also represented (as an attorney) both public and private boards. In the civic field where more than two people work together for (or under) a board or committee, there inevitably seems to be conflict at one time or another. Thus, litigation is a reality of civic duty. None of the boards or commissions referenced above would exempt a person from possible liability. In addition, I am not aware of any Mississippi Statute that holds a person immune from liability while acting as part of various boards or commissions.
I can say this: personal liability of a member is a rarity for board service. I have not seen a case where a board member was found liable for his or her service unless there was a showing of intentional action or just plain gross negligence.
Perhaps it is time the Mississippi legislature adopt laws granting immunity for voluntary or low-pay persons in the civic-service field.
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