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The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us) STATE OF MICHIGAN FRANK J. KELLEY, ATTORNEY GENERAL Opinion No. 6569 February 17, 1989 DENTISTS AND DENTAL HYGIENISTS: Immunity from liability of members of committees for examinations for certification of dental specialists GOVERNMENTAL IMMUNITY: Tort liability of members of committees for examinations for certification of dental specialists Members of the exam development committees and the exam committees appointed by the Board of Dentistry to assist in the certification of dental specialists are engaged in a governmental function when performing their duties and are immune from tort liability when acting within the scope of their authority and when their conduct does not constitute gross negligence. Honorable Doug Cruce State Senator The Capitol Lansing, Michigan You have requested my opinion on the question of whether specialty examiners appointed by the Board of Dentistry are immune from tort liability for conduct arising out of the performance of their duties. The Board of Dentistry, hereafter Board, is authorized by the Public Health Code, 1978 PA 368, Sec. 16608 et seq; MCL 333.16608 et seq; MSA 14.15 (16608) et seq, to license and regulate the profession of dentistry. Included within the profession are a numer of recognized areas of specialty practice. (1) The Board is permitted to certify an individual as a specialist in a particular area if he/she meets certain educational requirements and passes an examination. To this end, the Board promulgated administrative rules, 1984 AACS, R 338.11501-338.11527. The rules establish requirements necessary to qualify for certification in each of the specialty areas. In addition, the rules provide for an examination and specifically address the subjects to be covered for each examination as well as provide for a clinical evaluation of each candidate. To implement the rules, the Board appoints two committees for each specialty area. Each committee is comprised of specialists certified in the specific area. The first, the exam development committee, along with the Department of Licensing and Regulation, hereafter Department, is responsible for developing the examination consistent with the rules. Periodically the Board reviews the examination prepared by this committee. The exam committee, also with the assistance of the Department, administers the examination. Each examination is comprised of a combination of both objective and subjective questions as well as a clinical evaluation. Results of the examination are compiled by the Department and reported to the Board. Based upon these results, the Board certifies specialists who have met the necessary requirements. Your inquiry concerns whether members of these committees (2) are immune from tort liability which may result from a candidate's failure of the specialty examination. Governmental immunity from tort liability is provided in the government liability for negligence act, 1964 PA 170, as amended; MCL 691.1401 et seq; MSA 3.996(101) et seq. Section 7 of the Act provides for immunity and, in pertinent part, states: '(2) Except as otherwise provided in this section, and without regard to the discretionary or ministerial nature of the conduct in question, each officer and employee of a governmental agency, each volunteer acting on behalf of a governmental agency, and each member of a board, council, commission, or statutorily created task force of a governmental agency shall be immune from tort liability for injuries to persons or damages to property caused by the officer, employee, or member while in the course of employment or service or volunteer while acting on behalf of a governmental agency if all of the following are met: '(a) The officer, employee, member, or volunteer is acting or reasonably believes he or she is acting within the scope of his or her authority. '(b) The governmental agency is engaged in the exercise or discharge of a governmental function. '(c) The officer's, employee's, member's, or volunteer's conduct does not amount to gross negligence that is the proximate cause of the injury or damage. As used in this subdivision, 'gross negligence' means conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.' [Emphasis added.] MCL 691.1407; MSA 3.996(107). Based upon the above provisions, the defense of governmental immunity is available to members of the specialty committees who act on behalf of the Board as its agents in a legislatively-prescribed process. They are entitled to such protection provided they act within the scope of their authority, are involved in the exercise or discharge of a governmental function, and their conduct does not constitute 'gross negligence.' (3) In any litigation, however, an analysis of the specific facts is necessary to determine if the criteria are present which would entitle an individual to rely upon the defense of governmental immunity. Immunity is not derived solely from the general nature of the activity but is dependent upon the specific facts of each case. Canon v Thumudo, 430 Mich 326, 334; 422 NW2d 688 (1988); Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 635; 363 NW2d 641 (1984). See also OAG, 1979-1980, No 5572, p 421 (October 4, 1979). Thus, the members of the committees are not entitled to assert immunity solely on the basis of their responsibilities with the Board. Rather, the nature of the activity, in this instance the development and administration of examinations, is but one of several factors which must be considered in order to determine if a person is entitled to immunity. It is my opinion, therefore, that members of the exam development committees and the exam committees appointed by the Board of Dentistry to assist in the certification of dental specialists are engaged in a governmental function when performing their duties and are immune from tort liability when acting within the scope of their authority and when their conduct does not constitute gross negligence. Frank J. Kelley Attorney General (1)
(2)
Members of these committees would be considered governmental employees. The Department each year submits to the Department of Civil Service a form C.S. 138 seeking authorization to approve the contract for the hire of the members of the committees. The Department of Civil Service, based upon this information, approves the hiring. Personnel service contracts as in this matter are approved by the Department of Civil Service pursuant to Const 1963, art 11, Sec. 5. The Department advises that the members are reimbursed fifty ($50.00) dollars per day plus expenses.(3)
Members of the Board, as well as their employees and agents, may, in their individual capacities, also be the subject of an action arising out of a deprivation of federal constitutional rights under 42 USC 1983. In such litigation, a comparable form of immunity has been recognized. Manion v Michigan Board of Medicine, 765 F2d 590, 598 (CA 6, 1985). In Manion, supra, the court recognized that Board members were entitled to claim a qualified immunity for discretionary acts performed in the exercise of their statutory duties. Qualified immunity provides protection 'insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.' Harlow v Fitzgerald, 457 US 800, 818; 102 S Ct 2727; 73 L Ed 2d 396 (1982).
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