Legal Legal ConsiderationConsiderations for s for VolunteersVolunteers

Written by Written by Paul Ballard, Paul Ballard, Assistant Assistant Attorney General, Office of the Attorney General, Office of the Attorney General, MarylandAttorney General, Maryland

Scenario 1:Scenario 1:

You are asked to drive a state You are asked to drive a state vehicle to obtain medications for vehicle to obtain medications for your patients.your patients.

Outcome:Outcome: You do this: Thus, you are acting You do this: Thus, you are acting

within your scope of duties.within your scope of duties.

BUT, what if you make BUT, what if you make a mistake in good faith a mistake in good faith and cause an accident?and cause an accident?

Scenario 2:Scenario 2:

If you were If you were acting acting within your scope of within your scope of dutiesduties and made a and made a mistake mistake in good faithin good faith, , you would be coveredyou would be covered by the State.by the State.

You take the car You take the car on a personal errand -- on a personal errand -- you would be acting you would be acting OUTSIDE the scope of OUTSIDE the scope of your publicyour public duties. You duties. You would NOT be covered for would NOT be covered for any accident that might any accident that might occur.occur.

Scenario 3:Scenario 3:

This is Malice and the State This is Malice and the State would NOT cover you.would NOT cover you.

Let’s say that you’re driving within your scope of duties while getting the medications, but then you intentionally hit someone with your car.

Scenario 4:Scenario 4:

If you intended If you intended to hurt to hurt someone, you someone, you would NOT would NOT be covered by be covered by the State.the State.

This is Gross Negligence This is Gross Negligence and the State would NOT and the State would NOT cover you.cover you.

Let’s say that you’re driving within your scope of duties while getting the medications, but while driving, you are reckless…for example, you drive 100 MPH through a crowed city block. This would show that you really do not care whether you hurt anyone or not.

Scenario 5:Scenario 5:

Do you get legal Do you get legal representation if representation if you are sued?you are sued?

In In most casesmost cases you would. you would.

You would get You would get representation if you representation if you acted IN THE SCOPE of acted IN THE SCOPE of your duties and were your duties and were NOT grossly negligent NOT grossly negligent or malicious.or malicious.

The Attorney General’s The Attorney General’s Office Will Provide You with Office Will Provide You with Legal Representation IF Legal Representation IF You:You:

Acted in the scope of your duties,

Were NOT grossly negligent, &

Were NOT malicious

However, if you have However, if you have insurance coverage on insurance coverage on your own, the Attorney your own, the Attorney General’s Office may General’s Office may decline to represent you decline to represent you if the insurance if the insurance coverage already coverage already provides you with provides you with defense counsel.defense counsel.

Criminal ActionCriminal Action

The Attorney General’s Office CANNOT defend you in a Criminal Action.

Now, if the Attorney Now, if the Attorney General determines that General determines that you:you:

Were Malicious, Acted Outside your Scope of Duties,

OR Were Grossly Negligent

AND…AND…

……And you have to hire your And you have to hire your own legal counsel, and then own legal counsel, and then the court determines that the court determines that you:you:

Were NOT Malicious,Were NOT Malicious, Acted INSIDE your scope of duties, Acted INSIDE your scope of duties,

ANDAND Were NOT Grossly NegligentWere NOT Grossly Negligent

THEN…THEN…

……Then you may seek Then you may seek reimbursement from the reimbursement from the Board of Public Works.Board of Public Works.

In most cases, reimbursement is In most cases, reimbursement is granted upon the granted upon the recommendation of the Attorney recommendation of the Attorney General.General.

Not only is Paul Not only is Paul Ballard a lawyer, Ballard a lawyer, but he’s also a but he’s also a professional professional juggler.juggler.

In these examples, Paul uses juggling In these examples, Paul uses juggling scenarios to exemplify differences in scenarios to exemplify differences in legal terminology. legal terminology.

Scenario 1:Scenario 1:

Let’s say Paul is askedLet’s say Paul is asked

to be a volunteer juggler andto be a volunteer juggler and

he is asked to juggle 3 balls. he is asked to juggle 3 balls.

Juggling 3 balls is within Paul’s Juggling 3 balls is within Paul’s scope of duties, because that is scope of duties, because that is what he was asked to do.what he was asked to do.

What if Paul drops 1 ball?What if Paul drops 1 ball?

He is NEGLIGENT, He is NEGLIGENT, but he IS still but he IS still covered by the covered by the State because he State because he was was acting within acting within his scope of dutieshis scope of duties..

Let’s say Paul acts with Let’s say Paul acts with malice, gets angry, and he malice, gets angry, and he throws the balls at throws the balls at someone.someone. He is He is

MALICIOUS, MALICIOUS, and he is and he is NOT covered NOT covered by the State.by the State.

Now what if Paul is juggling the 3 Now what if Paul is juggling the 3 balls within the scope of his duty, balls within the scope of his duty, but he does not care what mistakes but he does not care what mistakes he makes. Oops…he drops all 3 he makes. Oops…he drops all 3 balls. Now what?balls. Now what?

This is GROSS This is GROSS NEGLIGENCE, NEGLIGENCE, and he is NOT and he is NOT covered by the covered by the State. He is State. He is reckless.reckless.

Remember that Paul was Remember that Paul was assigned to juggle only 3 balls. assigned to juggle only 3 balls. Well, Paul believes that he is a Well, Paul believes that he is a really great juggler, so he really great juggler, so he juggles 4.juggles 4.

That’s fine, That’s fine, except that now except that now Paul is OUTSIDE Paul is OUTSIDE

The Scope of The Scope of Duties.Duties.

If Paul is acting If Paul is acting OUTSIDE his Scope OUTSIDE his Scope of Duties, he is NOT of Duties, he is NOT

covered by the covered by the State, and he needs State, and he needs

to have his own to have his own liability coverage.liability coverage.

Summary:Summary: 3 balls within the scope of duties, Paul 3 balls within the scope of duties, Paul

drops 1 – that’s Negligence. He IS drops 1 – that’s Negligence. He IS covered.covered.

3 balls, Paul gets angry and throws 1 at 3 balls, Paul gets angry and throws 1 at someone – that’s Malice. He is NOT someone – that’s Malice. He is NOT covered.covered.

Paul doesn’t care what happens – that’s Paul doesn’t care what happens – that’s Gross Negligence. He is NOT covered.Gross Negligence. He is NOT covered.

Paul tries to juggle 4 balls, which is Paul tries to juggle 4 balls, which is outside his scope of duties. He is NOT outside his scope of duties. He is NOT covered.covered.

Workers’ CompensationWorkers’ Compensation

The Maryland Tort Claims Act does not The Maryland Tort Claims Act does not provide for workers’ compensation. If you provide for workers’ compensation. If you become ill or are injured due to the become ill or are injured due to the negligence of a State employee or negligence of a State employee or volunteer, you may have a claim under volunteer, you may have a claim under the Maryland Tort Claims Act. But if no the Maryland Tort Claims Act. But if no one was at fault, you may be without one was at fault, you may be without coverage. Therefore…(see next slide)coverage. Therefore…(see next slide)

Workers’ Comp. Continued…Workers’ Comp. Continued…Therefore, it would be a good idea to check Therefore, it would be a good idea to check

with your insurance company about with your insurance company about making sure that you are covered in case making sure that you are covered in case you became ill or injured as a volunteer. you became ill or injured as a volunteer.

If you received a smallpox vaccination that If you received a smallpox vaccination that was authorized under the was authorized under the Smallpox Smallpox Emergency Personnel Protection Act of Emergency Personnel Protection Act of 20032003 and become ill or injured, you and become ill or injured, you would be eligible for compensation under would be eligible for compensation under that federal Act.that federal Act.

Thank YouThank You

If you have any questions, please email them to the Board’s Emergency

Preparedness Coordinator at jzucco@dhmh.state.md.us