December 4, 1995
Frank R. Parrish, District Attorney
First Prosecutorial District
202 East Colonial Avenue
Elizabeth City, North Carolina 27909
RE: Advisory Opinion; Community Penalties Program Act of 1983; Liability of Members of a
Community Penalties Board; N.C.G.S. §7A-775
Dear Mr. Parrish:
You request our opinion on the liability of members of a Community Penalties Board.
Community Penalties Boards are created by the General Assembly, N.C.G.S. §7A-755, and are
given specific duties and responsibilities by law. Members of a Community Penalties Board
exercise a portion of the sovereign power of the state, even if created as a non-profit corporation
as allowed by N.C.G.S. §7A-755. Members of the Community Penalties Board are considered
public officers or public officials of the state, since they exercise a portion of the sovereign
power of the state. Sansom v. Johnson, 39 N.C. App. 682 (1979).
Members of a Community Penalties Board, as public officers or public officials of the state when
performing public governmental duties involving the exercise of judgment and discretion, are
clothed with immunity for mere negligence and may be held individually liable only for corrupt
or malicious acts, or for acts beyond the scope of their duties. "It is settled law in this jurisdiction
that a public official, engaged in the performance of governmental duties involving the exercise
of judgment and discretion, may not be held personally liable for mere negligence in respect
thereto. The rule in such cases is that an official may not be held liable unless it be alleged and
proved that his act, or failure to act, was corrupt or malicious (citations omitted), or that he acted
outside of and beyond the scope of his duties." Smith v. Hefner, 235 N.C. 1, 7 (1951). See also
Strong’s North Carolina Index 4th, Public Officers and Employees, Civil Liability, Sections 3537 (1993). As far as official liability is concerned, as an officer of the state, members of the
Board would be included under the Tort Claims Act and Article 31A of Chapter 143 of the
General Statutes of North Carolina.
Should you have any further questions, please feel free to contact us.
Andrew A. Vanore,
Chief Deputy Attorney General