Wisconsin Legislature: Destination-297

81 Op. Att'y Gen. 17, 17 (1993)

ROBERT THOMPSON,

Chair

State Emergency Response Board

81 Op. Att'y Gen. 17, 17 (1993)

You have asked for my opinion as to whether State Emergency Response Board (SERB) committee¯

members and Local Emergency Planning Committee (LEPC) subcommittee members are entitled to indemnity for damage liability under section 895.46(1)(a), Stats., and legal representation by the attorney general under section 165.25(6).

81 Op. Att'y Gen. 17, 17 (1993)

In my opinion both board members who sit on SERB committees and committee members who are not board members of SERB are entitled to indemnity for damage liability and legal representation under the terms of the statute. However, LEPC subcommittee members are entitled to indemnification and legal representation only to the extent that their duties as subcommittee members grow out of and are related to their duties as LEPC members.

81 Op. Att'y Gen. 17, 17-18 (1993)

As background you indicated that in 1986 Congress passed Title III of the Superfund Amendments and Reauthorization Act of 1986 (SARA), Pub. L. No. 99-499, which created hazardous chemical emergency planning and community right to know responsibilities for communities.

See

sec. 166.20, Stats.; 42 U.S.C.A. 11001

seq.

(West Supp. 1992). To implement Title III, Congress required each state to appoint a state emergency response commission (SERC). 42 U.S.C.A. 11001(a). The SERCs, in turn, were required to divide their states into emergency planning districts and name a local emergency planning committee (LEPC) in each district. 42 U.S.C.A. 11001(b). In Wisconsin, each county is an emergency planning district and the county board is required to create a local emergency planning committee for the county. Sec. 59.07(146)(a)1., Stats. Under section 166.20(2)(a) and (c), the State Emergency Response Board is charged with the overall duty of carrying out the requirements of a SERC under the federal act and overseeing the implementation of the local emergency response plans by committees and providing assistance to committees.

81 Op. Att'y Gen. 17, 18 (1993)

You have advised that SERB committee members are appointed by the SERB chair. Not all SERB committee members are board members. SERB committee members do not receive compensation for their services. SERB committees have certain delegated responsibilities and they make recommendations to the board. The SERB committees include: administrative rules/legislative, compliance, plan review and evaluation, training, and LEPC advisory committees. The non-SERB members of these committees represent county LEPCs, county emergency government, citizens groups, and other state and local agencies.

81 Op. Att'y Gen. 17, 18-19 (1993)

Turning to your questions, the state's liability indemnity program extends to any state officer, employe or agent. Section 895.46(1)(a) provides for the indemnity itself for any damage liability to the state officer, employe or agent. An agent, for purposes of this program, excludes independent contractors; only those whose liabilities would be attributed to the principal under the rule of

respondeat

superior

are agents.

See

Pavalon v. Fishman

, 30 Wis. 2d 228, 235, 140 N.W.2d 263 (1966);

Cameron v. Milwaukee

, 102 Wis. 2d 448, 456-57, 307 N.W.2d 164 (1981); 75 Op. Att'y Gen. 43 (1986); 75 Op. Att'y Gen. 49 (1986). Under the terms of the indemnification statute, the state is an excess indemnitor because it provides for indemnity for judgments "in excess of any insurance applicable." Section 165.25(6) empowers the attorney general to represent individuals entitled to indemnity. Furthermore, section 893.82 requires that a notice of claim be filed with the attorney general as a condition precedent to commencing an action against such an officer, employe or agent.

See

generally

Ibrahim v. Samore

, 118 Wis. 2d 720, 726-27, 348 N.W.2d 554 (1984);

Carlson v. Pepin County

, 167 Wis. 2d 345, 357, 481 N.W. 2d 498 (Ct. App. 1992). These statutes operate together

pari

materia

as a complementary whole. Therefore, if SERB committee members and LEPC subcommittee members are state officers, employes or agents within section 895.46, they are entitled to indemnification for judgments rendered against them for conduct within the scope of their agency as well as to legal representation provided by the state.

81 Op. Att'y Gen. 17, 19 (1993)

It is essential to note that your inquiry concerns four separate categories of committee members. The categories are: 1) board members of SERB who also serve on SERB committees; 2) non-board members who serve on SERB committees; 3) LEPC members who also serve on LEPC subcommittees; and 4) non-LEPC members who serve on LEPC subcommittees.

81 Op. Att'y Gen. 17, 19-20 (1993)

The answer as to SERB committee members is yes. Board members serving on SERB committees are undoubtedly included within the indemnity and representation provisions. Even if they are uncompensated, the long standing and uninterrupted administration of the law has accorded members of state boards the status of being state officers within the meaning and purpose of the indemnity and representation statutes.

Cf.

Burton v. State Appeal Board

, 38 Wis. 2d 294, 301, 156 N.W.2d 386 (1968) (a public officer exercises some portion of the sovereign power of the state by law) citing

Martin v. Smith

, 239 Wis. 314, 332, 1 N.W.2d 163 (1941) (an officer is one who is not subordinate to any authority other than that of law). These members would be equally protected when serving on a related committee inasmuch as these services grow out of their duties as board members.

See

Ibrahim

, 118 Wis. 2d at 728;

Doe v. Ellis

, 103 Wis. 2d 581, 590-91, 309 N.W.2d 375 (Ct. App. 1981).

81 Op. Att'y Gen. 17, 20 (1993)

It remains to ascertain whether members of SERB committees who are not also board members are subject to tort indemnification and legal representation under the terms of the statute. In order to make this determination it is necessary to consider whether these committee members are state officers, employes or agents under section 895.46.

81 Op. Att'y Gen. 17, 20 (1993)

Non-SERB committee members are not officers. By definition, an officer exercises some portion of the sovereign power of the state and is not subordinate to any authority other than that of the law.

See

Burton

, 38 Wis. 2d at 301;

Martin

, 239 Wis. at 332. You have advised that committee members are subordinate to the board. The committees act only under the direction of the SERB.

81 Op. Att'y Gen. 17, 20 (1993)

However, non-SERB committee members are entitled to indemnity under the terms of the statute because they are state agents. Whether an agency relationship exists turns on such facts as the extent of control over the details of the work, whether the worker is engaged in a distinct occupation or business apart from that of the party desiring the services, the place of work, the time of employment, the method of payment, the right of summary discharge, the nature of the business, which party furnishes the tools, and the intent of the parties.

Pavalon

, 30 Wis. 2d at 236. The single most important factor is the extent of control retained over the details of the work.

Kablitz v. Hoeft

, 25 Wis. 2d 518, 521, 131 N.W.2d 346 (1964).

81 Op. Att'y Gen. 17, 20-21 (1993)

You have advised that all committee decisions are subject to approval by SERB. The board has full control over the details of work done by its committees. So long as the SERB committee members act to carry out the functions of the board, they will be regarded as agents of the state within the meaning of section 895.46(1)(a). In that capacity they will be entitled to indemnification for any judgment rendered against them for conduct within the scope of their agency and they will be entitled to legal representation provided by the state.

81 Op. Att'y Gen. 17, 21 (1993)

You also asked whether LEPC subcommittee members are entitled to indemnity for damage liability under section 895.46(1)(a), and legal representation by the attorney general under section 165.25(6). You have advised that LEPC membership is appointed by the county board and approved by the SERB. Members and non-members of the LEPC may sit on its subcommittees. However, non-LEPC subcommittee members are generally appointed by the LEPC and are not presented to the SERB for approval. Typically, LEPC subcommittee members do not receive compensation for their activities. LEPC subcommittee membership may include state and local elected officials; police, fire and health officials; representatives of environmental groups; transportation and media representatives; community groups; representatives of local facilities; and other individuals.

81 Op. Att'y Gen. 17, 21 (1993)

You indicated that LEPC subcommittee members may perform a wide range of tasks, including providing facilities with technical assistance in filing reports required under federal and state hazardous material reporting requirements, serving as an LEPC compliance inspector pursuant to section 166.20(7m), and drafting plans for response to the release of hazardous substances from a specific facility, which are included as a component in the local emergency response plan. You are specifically concerned with the indemnity and legal representation of LEPC subcommittee activities which include reviewing facility emergency response plans for presentation and recommendation for approval by the LEPC.

81 Op. Att'y Gen. 17, 21 (1993)

Members of the LEPC who serve on LEPC subcommittees receive indemnity protection under section 895.46, which states the following:

81 Op. Att'y Gen. 17, 21 (1993)

State and political subdivisions thereof to pay judgments taken against officers. (1)(a)....

81 Op. Att'y Gen. 17, 21 (1993)

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