North Carolina Department of Justice
North Carolina Department of Justice
North Carolina Department of Justice
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[473] September 6, 2000

--MEMORANDUM--

TO: Eric Tolbert, Chairman

N.C. Emergency Response Commission

FROM: Isaac T. Avery, III Special Deputy Attorney General

DATE: September 6, 2000

SUBJECT: Civil Lawsuit -- North Carolina Emergency Response Commission & Local Emergency Planning Committees

The North Carolina Emergency Response Commission was created by Executive Order 125 (December 18, 1997). The commission includes 13 state employees and six at-large members from local government and private industry. The questions posed are whether the members of the commission are covered by the Tort Claims Act, N.C.G.S. § 143-291, et seq., and Defense of State Employees Act,

N.C.G.S. § 143-300.2, et. seq.? Also, to what immunities, if any, are the members of the commission entitled?

1. State Employees.

State employees named to the commission are entitled to coverage as they would be for any other assigned duties. Currently, the Tort Claims Act provides for coverage of $500,000.00 per person injured by the negligent acts of “any officer, employee, involuntary servant or agent of the State.” N.C.G.S. § 143-291, as amended by S.L. 2000-67, Sec. 7A. In addition, the excess insurance policy provides for coverage of an additional $11,000,000.00 for negligent acts in the course of employment other than operation of an airplane, motor vehicle or boat. The state employee is entitled to defense by the Attorney General for acts occurring within the course and scope of employment, absent a showing of malice or intentional wrongdoing, etc., as provided in N.C.G.S. § 143-300.6.

2. Non-State Employees.

N.C.G.S. § 143-291 provides for tort claim coverage for employees and agents acting within the scope of their authority. Commission members who are not employed by the state, but appointed by the Governor to act on behalf of the state, become agents of the state and are entitled to the same coverage as a state employee to the extent that they are performing functions arising out of appointment to the commission. Likewise, N.C.G.S. § 143-300.2(2) defines an employee, for purposes of defense by the Attorney General, to include an agent of the state. Non-state employees are also entitled to defense for lawsuits arising out of performing their state duties to the same extent as state employees.

3. Immunities.

All members of the commission, state employees and at-large members, when performing functions of the commission which require exercising discretion or judgment, are entitled to public official immunity. Public officials are not liable for mere negligence, but are only liable for acts that are malicious, corrupt or outside the scope of their appointment. Meyer v. Wall, 347 N.C. 97, 112 (1997).

To the extent that the functions are performing emergency management functions, and the members are emergency management workers, they are protected from civil liability except for gross negligence or intentional wrongdoing. N.C.G.S. § 166A-14.

Finally, any person who provides assistance or advice in mitigating or attempting to mitigate effects of an actual or threatened discharge of hazardous materials or in preventing, cleaning up or disposing of hazardous materials, is immune from liability unless his acts or omissions result from gross negligence, reckless, wanton or intentional misconduct. N.C.G.S. § 143-215.104. This statute does not apply to a person who receives compensation, other than out-of-pocket expenses, for preventing, cleaning up or disposing of hazardous materials.

There may be other immunities and protections afforded by law depending upon the type of lawsuit filed.

4. Local Emergency Planning Committees.

The next question concerns whether members of the Local Emergency Planning Committees, required by Executive Order 125 to be appointed by the commission, are also provided the same coverage as the commission members. The answer is “yes.”

Executive Order 125 provides for the commission to appoint Local Emergency Planning Committees (LEPCs) and to supervise and coordinate the activities of such committees. The commission is required to review plans submitted by the LEPCs and make recommendations on revision of the plans. The issue is whether members of the LEPCs are agents of the state when performing the functions required by Executive Order 125. An agent is defined as a person or group who is authorized to act for a principal and over whom the principal exercises control. See Dunkley v. Shoemate, 350 N.C. 573, 577 (1999). Executive Order 125 establishes the necessary relationship and control so that the LEPCs are agents of the state when performing duties established by Executive Order 125. As agents of the state, the members of the LEPCs would be entitled to the same tort claim coverage, defense by the Attorney General and immunities as commission members when performing duties required by Executive Order 125. This coverage includes local government employees as well as employees of private companies.

Signed by:

Isaac T. Avery, III Special Deputy Attorney General

cc: Harry Bunting Special Deputy Attorney General Tort Claims Section