- What is immunity and how does it relate to volunteer service as a Master Gardener?
Section 51.937 of the Texas Education Code provides potential statutory immunity from legal judgments in certain instances for ‘direct service volunteers’ and defines such as someone doing the duties of a volunteer position provided for or on behalf of an institution of higher education on its premises or at an “activity related to or sponsored by the institution on or off the property of the institution.” This immunity applies only to individual volunteers, not organizations. It does not prevent volunteers from being sued.
- Does ‘direct service’ include volunteering at Master Gardener projects not under the direct supervision or oversight of either TAMU or the local Texas A&M AgriLife Extension Service office?
Although no Texas court has specifically ruled on that issue relative to § 51.937, TAMU’s Office of the General Counsel says probably not. It looks to sponsorship or degree of control by TAMU when answering that question. Answering the telephone in the Extension Office or going on Speaker’s Bureau engagements on behalf of the Agent likely would be covered because such duties are under the direct supervision of the Texas A&M AgriLife Extension Service office. Master Gardener projects elsewhere lacking direct supervision and control by TAMU or the Texas A&M AgriLife Extension Service office likely would not be considered direct service.
- If a Master Gardener is sued, does TAMU provide legal defense for him or her?
No. Texas Attorney General Opinion No. DM-457 (1997) concludes Texas law does not permit volunteers to be indemnified for damages, court costs, and attorney fees in the same manner as state employees. TAMU outlines its position in Texas Laws Protecting Texas A&M AgriLife Extension Employees and Volunteers, which states, “NOTE: The Office of the Attorney General and The Texas A&M University System Office of General Counsel will not provide an attorney at no cost to volunteers, but will assist a personal attorney with information regarding this section of the Education Code.” It would be up to each Master Gardener to hire an attorney and pay for his or her own legal defense costs in the event of any lawsuit. After a Master Gardener personally hires an attorney, TAMU may provide requested advice to such attorney on strategies for raising the defense of immunity under § 51.937.
- How much does it cost to hire a defense attorney in such an instance?
There is no objective answer to this question since so many variables go into determining what an attorney charges a client. It would not be unrealistic, however, to expect to spend $15,000 or more in personal defense costs asserting the immunity defense and that would not include appeal costs should initial defense actions fail.
- Isn’t there a federal law that also confers immunity for volunteers?
Yes, but like the state statute referenced above, it is a defense to be raised, not a shield that prevents being sued. It would still be up to the individual defendant to hire counsel to assert the defense. Legal fees and costs can exceed exposure for judgments, so even with immunity from judgments there can still be considerable adverse financial impact for individuals.
- Does TAMU recognize potential liability risks for Master Gardener organizations?
Yes. In The Texas Master Gardener Management Guides, TAMU advises one of the benefits to Master Gardener organizations of obtaining non-profit corporate status is “limitation of liability. The limitation in liability is important when doing projects which expose the group to some accident or risks.” The Guide goes on to state, “If you intend to become community activists, with attendant risks, you probably need the protection of a formal organization so that you can raise money and limit liability.” Plainly, TAMU recognizes there are potential liability risks for Master Gardener organizations associated with the volunteer service of Master Gardeners and that Master Gardener organizations should take appropriate steps to protect themselves.
- Can insurance pick up some defense costs for Master Gardeners?
Personal homeowners coverage might cover liabilities arising from volunteer service but that is not a given. Even if it does, it may be necessary to pay an additional premium to obtain it prior to any loss or it may not be offered at all by your carrier. It would be up to each Master Gardener to confirm individual coverage issues with their own insurance agent. Corporations can purchase liability and other coverage that protects both members and organizational management in circumstances where liability could arise and such typically includes indemnification (reimbursement) for legal defense costs.