Are unpaid volunteers on a Mississippi state-board advisory panel covered by the Tort Claims Act when they're acting in that role?

Plain-English summary

The Mississippi State Board of Dental Examiners has authority under Section 73-9-13(q) to hire technical and professional personnel to do dental-office sedation site visits and help the Board decide whether to issue anesthesia permits. The Board appointed a Mississippi Anesthesia Advisory Panel to assist with anesthesia regulations. The panelists are volunteers and are not paid.

The Board's executive director asked: if a panelist is sued in connection with their panel work, are they covered by the Mississippi Tort Claims Act (MTCA)?

The AG said yes. The MTCA's definition of "employee" in Section 11-46-1(f) is "very broad." It explicitly covers "elected or appointed officials and persons acting on behalf of the state...in any official capacity, temporarily or permanently, in the service of the state...whether with or without compensation." It carves out only independent contractors. Volunteer advisory panelists fit comfortably within that definition.

That means a panelist acting within the course and scope of their panel duties is entitled to the protection of the MTCA, which the AG (quoting its Lucas opinion) describes as a "limited waiver of sovereign immunity" for certain torts of governmental entities and their employees acting within the course and scope of employment.

The AG cautioned that whether the MTCA actually applies to any particular claim is a fact question. The AG can opine on legal coverage in the abstract, but specific incidents have to be evaluated based on the facts.

What this means for you

For Mississippi advisory panel and board volunteers

Under the opinion, an unpaid volunteer appointed to a state board's advisory panel can still fit the MTCA's definition of "employee." The AG relied on the words of § 11-46-1(f), which covers "persons acting on behalf of the state . . . in any official capacity, temporarily or permanently, in the service of the state . . . whether with or without compensation." The protection attaches when the member is "acting within the course and scope of their duties."

For state boards using volunteer panels

The opinion concluded that members of the Anesthesia Advisory Panel, appointed by the Board to assist in implementing its anesthesia regulations, fit the broad "employee" definition and are entitled to MTCA protection when acting within the course and scope of their duties. It did not prescribe any particular appointment or documentation procedure.

For attorneys representing state boards

The opinion holds that the appointed volunteer panelists fit the § 11-46-1(f) definition the AG (quoting Howell) calls "very broad," and are entitled to MTCA protection when acting within course and scope. It rests on a line of prior opinions: Howell (1996), holding a part-time Board investigator is an "employee"; Conerly (2002), extending MTCA coverage to an unpaid UMMC volunteer faculty member; and Hyde-Smith (2012), covering an authorized volunteer acting within the scope of volunteer duties.

For people considering claims against advisory panel members

The opinion addresses only whether panelists fall within the MTCA's "employee" definition; it does not analyze any particular claim. The AG stressed at the outset that "whether the MTCA applies to a particular claim depends on questions of fact" and that its office "cannot address questions of fact by way of an official opinion." Anyone weighing a claim should consult a Mississippi attorney.

For other Mississippi agencies with volunteer advisory bodies

The opinion does not stand alone on dental anesthesia. It applies the same § 11-46-1(f) reasoning the AG used for a Board investigator (Howell), an unpaid UMMC volunteer faculty member (Conerly), and an authorized volunteer (Hyde-Smith). In each, an appointed or authorized person acting within the scope of state duties fit the broad "employee" definition.

Common questions

Q: Does "employee" really include unpaid people?
A: Yes, under the opinion. Section 11-46-1(f), quoted by the AG, applies "whether with or without compensation," and the AG (citing Howell) calls the definition "very broad."

Q: What about independent contractors?
A: Section 11-46-1(f) says the term "employee" "shall not mean a person or other legal entity while acting in the capacity of an independent contractor under contract to the state or a political subdivision." The opinion concluded the appointed volunteer panelists fit the employee definition; it did not analyze an independent-contractor scenario.

Q: Is the coverage unconditional?
A: No. The AG's conclusion is that panelists are protected "when acting within the course and scope of their duties." Coverage is tied to that condition, and the opinion does not address conduct outside that scope.

Q: Does the opinion decide any specific lawsuit against a panelist?
A: No. It opens by noting that "whether the MTCA applies to a particular claim depends on questions of fact," which the AG cannot resolve by official opinion (citing § 7-5-25 and the Sutton opinion). It answers only the general legal-coverage question.

Q: Does MTCA coverage extend to a panelist's separate professional practice?
A: The opinion ties coverage to acting "within the course and scope of their duties" as a panelist for the Board. It addresses that role, not a member's separate professional practice.

Background and statutory framework

The opinion describes the MTCA, quoting its Lucas opinion, as providing "a limited waiver of sovereign immunity by the State and its political subdivisions for claims for money damages arising from certain torts of these governmental entities and torts of their employees while acting within the course and scope of their employment."

The Act's definition of "employee" in § 11-46-1(f), which the AG (quoting Howell) calls "very broad," is the heart of the analysis. The definition includes:

• "any officer, employee or servant of the State of Mississippi or a political subdivision of the state"
• "elected or appointed officials"
• "persons acting on behalf of the state or a political subdivision in any official capacity, temporarily or permanently, in the service of the state or a political subdivision"
• "whether with or without compensation"
• "firefighters who are members of a volunteer fire department that is a political subdivision"

It excludes:

• "a person or other legal entity while acting in the capacity of an independent contractor"

Past AG opinions applying the definition broadly:

• Howell (1996): a part-time investigator of the Board of Dental Examiners is an "employee" under Section 11-46-1(f)
• Conerly (2002): an unpaid volunteer faculty member at UMMC performing teaching duties is afforded MTCA coverage
• Hyde-Smith (2012): an authorized volunteer acting within scope of volunteer duties is covered

The Anesthesia Advisory Panel slots into this line. The 2021 opinion is short but clear: volunteer advisory panelists are MTCA-covered employees when acting within the scope of their state appointment.

The AG flagged one limit: whether the MTCA covers a particular claim is a fact-bound question. The AG's office does not opine on factual claim disputes (Section 7-5-25 limits AG opinions to questions of state law). For any specific claim, the local government (or here, the appointing board and the State) makes the coverage determination based on the facts.

Citations and references

Statutes:

• Miss. Code Ann. § 7-5-25, AG opinions limited to state law
• Miss. Code Ann. § 11-46-1(f), MTCA definition of employee
• Miss. Code Ann. § 73-9-13(q), Dental Board authority to employ technical and professional personnel

Prior AG opinions:

• MS AG Op., Sutton at *3 (Apr. 22, 2016), MTCA application is a question of fact
• MS AG Op., Lucas at *2 (July 24, 2009), MTCA provides limited waiver of sovereign immunity
• MS AG Op., Howell at *3-4 (Mar. 8, 1996), Board part-time investigator is an employee
• MS AG Op., Conerly at *2 (Mar. 29, 2002), UMMC volunteer faculty covered
• MS AG Op., Hyde-Smith at *1 (Dec. 21, 2012), authorized volunteer covered

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2021/07/C.Hutchinson_July-13-2021-Mississippi-Anesthesia-Advisory-Panel-Tort-Claims-Act.pdf

Original opinion text

July 13, 2021

Mr. Chris L. Hutchinson
Executive Director
Mississippi State Board of Dental Examiners
600 East Amite Street, Suite 100
Jackson, Mississippi 39201-2801

Re: Mississippi Anesthesia Advisory Panel - Tort Claims Act

Dear Mr. Hutchinson:

The Office of the Attorney General has received your request for an official opinion.

Background

Mississippi Code Annotated Section 73-9-13(q) grants authority to the Mississippi State Board of Dental Examiners ("Board") to employ technical and professional personnel to conduct dental office sedation site visits to assist the Board in its determinations on whether to issue permits enabling applicants to administer anesthesia pursuant to Board regulations. You state that members of the Mississippi Anesthesia Advisory Panel have been appointed by the Board to assist in implementing Board regulations governing the administration of anesthesia by Mississippi licensed dentists. Members of the Advisory Panel are volunteers and do not receive compensation for their time.

Question Presented

Does the Mississippi Tort Claims Act ("MTCA") extend protection to members of the Mississippi Anesthesia Advisory Panel ("Advisory Panel") duly appointed by the Board?

Brief Response

Members of the Advisory Panel fit within the broad definition of "employees of the state of Mississippi" as set forth in Section 11-46-1(f) and, when acting within the course and scope of their duties, are entitled to the protection of the MTCA.

Applicable Law and Discussion

At the outset, we must note that whether the MTCA applies to a particular claim depends on questions of fact. MS AG Op., Sutton at *3 (Apr. 22, 2016) ("Whether a claim is subject to defenses, including the applicability of the Tort Claims Act, is a determination that must be made by the local government based on the facts of the claim."). This office cannot address questions of fact by way of an official opinion. See Miss. Code Ann. § 7-5-25.

Section 73-9-13 sets forth the powers and duties of the Board. It provides, in part:

The board shall have the following powers and duties:

...

(q) To employ, in its discretion, technical and professional personnel to conduct dental office sedation site visits, administer and monitor state board examinations and carry out the powers and duties of the board.

The MTCA "provides a limited waiver of sovereign immunity by the State and its political subdivisions for claims for money damages arising from certain torts of these governmental entities and torts of their employees while acting within the course and scope of their employment." MS AG Op., Lucas at *2 (July 24, 2009). Section 11-46-1(f) defines the term "employee" applicable to the MTCA:

(f) "Employee" means any officer, employee or servant of the State of Mississippi or a political subdivision of the state, including elected or appointed officials and persons acting on behalf of the state or a political subdivision in any official capacity, temporarily or permanently, in the service of the state or a political subdivision whether with or without compensation, including firefighters who are members of a volunteer fire department that is a political subdivision. The term "employee" shall not mean a person or other legal entity while acting in the capacity of an independent contractor under contract to the state or a political subdivision;

Miss. Code Ann. § 11-46-1(f) (emphasis added). This definition is "very broad." MS AG Op., Howell at *3 (Mar. 8, 1996).

As noted in your request, we have previously opined that a part-time investigator of the Board is deemed an "employee" as defined in Section 11-46-1(f), id. at 4, and that an unpaid volunteer faculty member at UMMC performing teaching duties is afforded coverage under the MTCA. MS AG Op., Conerly at 2 (Mar. 29, 2002); see also MS AG Op., Hyde-Smith at *1 (Dec. 21, 2012) ("Therefore, it is the opinion of this office that if a volunteer, acting with the authorization and knowledge of the agency and acting within the course and scope of their volunteer duties, injures a visitor, the agency and volunteer would be afforded coverage under the Mississippi Tort Claims Act for any claims made by the injured visitor.").

It is the opinion of this office that members of the Advisory Panel fit within the broad definition of "employees of the state of Mississippi" as set forth in Section 11-46-1(f) and, therefore, when acting in the course and scope of their duties, are entitled to the protection of the MTCA.

If this office may be of any further assistance to you, please do not hesitate to contact us.

Sincerely,

LYNN FITCH, ATTORNEY GENERAL

By: /s/ Phil Carter
Phil Carter
Special Assistant Attorney General