The Honorable Jerry Bookout State Senator P. O. Box 415 Jonesboro, AR 72401
Dear Senator Bookout:
This is in response to your request for an opinion regarding Act 970 of 1987, which is codified at Arkansas Code of 1987 Annotated16-120-101 et seq. (Supp. 1987). A question has been posed with regard to the applicability of Act 970 to the Board of Directors and Board of Trustees of the National Guard Association of Arkansas, Inc. ("NGAA").
Act 970 of 1987 states in pertinent part as follows under Section 2 and 4 [A.C.A. 16-120-102(a) and 16-120-103(a) (Supp. 1987)]:
Except as otherwise provided by this chapter, no member of any board, commission, agency, authority, or other governing body of any governmental entity and no member of the board of directors of a nonprofit corporation that holds a valid federal income tax exemption issued by the Internal Revenue Service shall be held personally liable for damages resulting from:
Any negligent act or omission of an employee of the nonprofit corporation or governmental entity; or
Any negligent act or omission of another director or member of the governing body of the governmental entity.
The immunity provided by this chapter shall not extend to acts or omissions of directors of nonprofit corporations or members of boards, commissions, agencies, authorities, or other governing bodies of any governmental entity which constitute ordinary or gross negligence personal to the director or member or to intentional torts committed by a director or member.
It is my opinion that the foregoing provisions will apply to members of the Board of Directors of NGAA if that entity qualified as a "nonprofit corporation that holds a valid federal income tax exemption issued by the Internal Revenue Service". This determination will have to be made based upon the particular facts surrounding the corporation.
It should be noted, finally, that the provisions of Act 970 of 1987 do not appear to extend to members of a board of trustees of a nonprofit corporation. Nor are we aware of any separate authority similar to Act 970 that would be applicable to such board members.
The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Elisabeth A. Walker.