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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. 6579

April 26, 1989

GOVERNMENTAL IMMUNITY:

Liability of members of inland lake board for tort

LAKES AND PONDS:

Inland lake board as a political subdivision

A lake board established under MCL 281.903; MSA 11.419(3), is a political subdivision covered by the governmental immunity act.

A member of a lake board is immune from tort liability for injuries to persons or damages to property caused by the member while acting in behalf of the lake board if the member was acting within the scope of his or her authority, the lake board is engaged in the exercise or discharge of a governmental function, and the conduct of the member does not amount to gross negligence that is the proximate cause of the injury or damage as provided in the governmental immunity act.

Honorable Willis Bullard, Jr.

State Representative

The Capitol

Lansing, MI 48909

You have asked whether a lake board created pursuant to the Inland Lake Improvement Act of 1966, 1966 PA 345; MCL 281.901 et seq; MSA 11.419(1) et seq, is a political subdivision within the definition set forth in MCL 691.1401; MSA 3.996(1), thus providing governmental immunity to its officers.

The Inland Lake Improvement Act of 1966 provides for the improvement of certain inland lakes through dredging, removal of undesirable materials, authorization of the acquisition of lands and other property, and provides for special assessments for lake improvement purposes. Under MCL 281.903(1); MSA 11.419(3)(1), a local governing body of any city, village, township or county may provide for the improvement of a lake. MCL 281.903(2); MSA 11.419(3)(2), provides:

"Upon receipt of the petition or upon its own motion, the local governing body of a local unit within 60 days shall set up a lake board as provided in section 4 which shall proceed with the necessary steps for improving the lake or to void the proposed project."

MCL 281.904; MSA 11.419(4), provides that the membership of the lake board shall be constituted as follows:

"(1) The lake board shall consist of all of the following:

"(a) A member of the county board of commissioners appointed by the chairperson of the county board of commissioners of each county affected by the lake improvement project; a representative of each local unit appointed by the legislative body of the local unit, other than a county, affected by the project; the county drain commissioner, or a member of the county road commission in counties not having a drain commissioner, and a representative of the department of natural resources.

"(b) A member elected by the members of the lake board serving pursuant to subdivision (a) at the first meeting of the board or at any time a vacancy exists under this subdivision. Only a person who has an interest in a land contract or a record interest in the title to a piece or parcel of land that abuts the lake to be improved is eligible to be elected and to serve under this subdivision. An organization composed of and representing the majority of lakefront property owners on the affected lake may submit up to 3 names to the board, from which the board shall make its selection. The terms served by this member shall be 4 years in length.

"(2) The lake board shall elect a chairperson and a secretary. A majority of the members of the lake board shall constitute a quorum. The concurrence of a majority in any matter within the duties of the board shall be required for the determination of a matter.

"(3) The department of natural resources, upon request of the lake board, shall provide whatever technical data it has available and make recommendations in the interests of conservation."

Governmental immunity for officers and employees of governmental agencies is provided pursuant to the governmental immunity act, 1964 PA 170, Sec. 7(2), MCL 691.1407(2); MSA 3.996(107)(2), which states:

"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."

"Governmental agency" is defined as the state, political subdivisions, and municipal corporations. MCL 691.1401(d); MSA 3.996(101(d). "Political subdivision" is defined at MCL 691.1401(b); MSA 3.996(101(b), as

"any municipal corporation, county, county road commission, township, charter township, school district, community college district, port district, or metropolitan district, transportation authority, or any combination thereof, when acting jointly, and any district or authority authorized by law or formed by 1 or more political subdivisions, and any agency, department, court, board, or council of a political subdivision."

It is thus seen that a lake board established by the governing board of a "local unit" of government pursuant to MCL 281.903; MSA 11.419(3), is a political subdivision within the ambit of MCL 691.1401(b); MSA 3.996(107)(2).

It is my opinion, therefore, that a lake board established under MCL 281.903; MSA 11.419(3), is a political subdivision covered by the governmental immunity act. It is my further opinion that a member of a lake board is immune from tort liability for injuries to persons or damages to property caused by the member while acting in behalf of the lake board if the member was acting within the scope of his or her authority, the lake board is engaged in the exercise or discharge of a governmental function, and the conduct of the member does not amount to gross negligence that is the proximate cause of the injury or damage as provided in the governmental immunity act.

Frank J. Kelley

Attorney General


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