Colorado statutes that immunize volunteer non-profit Board members from civil liability contain a dangerous, but fixable loophole: simply by pleading “willful and wanton conduct,” any accuser can subject a volunteer Board member to personal liability, as well as the expense and hassle of litigation, even if allegations are later disproven. In the Colorado Governmental Immunity Act (“GCIA”), our General Assembly closed this loophole by requiring accusers to plead specifically any alleged “willful and wanton conduct” that could compromise a governmental employee’s immunity; if an accuser fails to detail alleged “willful and wanton conduct” in his Complaint, a judge has far greater latitude to dismiss that individual governmental employee from the lawsuit at the earliest phase of litigation. Our Board member volunteers deserve the same protection.
As an attorney, I have witnessed the heart-breaking impact of threatened personal liability and vexatious litigation on volunteer Board members. Invoking their statutory immunity, these Board members pleaded for their dismissal right away; the judge, however, reasoned that because Board member immunity statutes do not reference the CGIA’s strict pleading standard, he lacked the authority to dismiss them early in the litigation. Although the judge has since dismissed these Board members as individual defendants, the stress and risk of the litigation process itself made them sick, tired, and worse, afraid to serve in the future.
With our encouragement, Colorado’s General Assembly can plug this loophole by copying the CGIA’s strict pleading standard and pasting it into existing Board member immunity statutes. Passing legislation is seldom as simple as word processing technology now allows. Colorado, however, depends on volunteer Board members to govern our non-profit social service agencies, community/professional associations, even rural electric cooperatives. Until we strengthen their immunity, and thereby make it safer to serve, our existing statutory safeguards do little to resolve the problem that prompted their passage: the willingness of volunteers to offer their services has been increasingly deterred by a perception that they put personal assets at risk in the event of tort actions seeking damages arising from their activities as volunteers.
If you can help, lend your voice, share a war story, talk to a legislator, write a letter, give me advice, etc., etc., please reach out to me at (303) 248-3769 (direct) and/or at firstname.lastname@example.org. My personal experiences with this issue have inspired me to become a novice, one-issue lobbyist: I do not know what I am doing; I just know that we can do better by our volunteer Board members.
Merrily S. Archer, Esq., M.S.W.