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AGLO 1972 No. 91 -
Attorney General Slade Gorton

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                                                               December 15, 1972
Honorable Irving Newhouse
State Representative, District 8A
Route 1, Box 130
Mabton, Washington 98935
                                                                                            Cite as:  AGLO 1972 No. 91 (not official)
Dear Sir:
            This is written in response to your recent request for our opinion on several questions pertaining to the potential tort liability of the officers and employees of an irrigation district, together with the authority of such a district to indemnify these personnel, either directly or through the purchase of liability insurance, against the possibility of such liability.
            Questions (1) and (2):
            You have first asked whether the officers and employees of an irrigation district may be liable for damages for their acts done in good faith in the performance of their duties, including both discretionary governmental acts and ministerial acts.  Then, assuming the possibility of a distinction between discretionary and ministerial acts in response to this first question, you have asked for an indication as to which of the duties and functions of irrigation district directors and officers would fall within each category.
            Although each case must be judged on its own facts, under the rules which were laid down by our state supreme court in the recent case of Evangelical Etc. Ch. of Adna v. State, 67 Wn.2d 246, 407 P.2d 440 (1965), it can generally be stated that neither a governmental agency (such as an irrigation district) nor its officers and employees will be liable in tort for the performance of acts within the scope of their authority which are of a discretionary governmental nature ‑ but both may be held tortiously liable for the negligent performance of ministerial or "operational" acts.  In this case the court set forth the following four tests to determine which acts of a public official or employee fall within a discretionary immunity doctrine.
             [[Orig. Op. Page 2]]
            "Whatever the suitable characterization or label might be, it would appear that any determination of a line of demarcation between truly discretionary and other executive and administrative processes, so far as susceptibility to potential sovereign tort liability be concerned, would necessitate a posing of at least the following four preliminary questions:  (1) Does the challenged act, omission, or decision necessarily involve a basic governmental policy, program, or objective?  (2) Is the questioned act, omission, or decision essential to the realization or accomplishment of that policy, program, or objective as opposed to one which would not change the course or direction of the policy, program, or objective?  (3) Does the act, omission, or decision require the exercise of basic policy evaluation, judgment, and expertise on the part of the governmental agency involved?  (4) Does the governmental agency involved possess the requisite constitutional, statutory, or lawful authority and duty to do or make the challenged act, omission, or decision?  If these preliminary questions can be clearly and unequivocally answered in the affirmative, then the challenged act, omission, or decision can, with a reasonable degree of assurance, be classified as a discretionary governmental process and nontortious, regardless of its unwisdom.  If, however, one or more of the questions call for or suggest a negative answer, then further inquiry may well become necessary, depending upon the facts and circumstances involved."  (p 255.)1/
             As for the significance of "good faith" as a defense, both in terms of the performance of discretionary governmental acts and those which are ministerial in nature,  [[Orig. Op. Page 3]] we think the law here is correctly and aptly summarized in the following excerpt from 63 Am.Jur. 2d, Public Officers and Employees, § 299:
            "It is a general rule that good faith and absence of malice constitute no defense in an action to hold a ministerial officer liable for damages caused by his nonfeasances or misfeasances, for an officer is under a constant obligation to discharge the duties of his office, and it is not necessary to show that his failure to act was wilful or malicious.  And this is likewise the rule in respect of officers with discretionary powers who have exceeded their jurisdiction and have acted without authority of law.  Thus, it is no defense in an action for damages for the wrongful removal of an officer that the officers removing him acted in good faith.  And good faith or honest mistake may, in some cases, be shown in mitigation of damages."  (Emphasis supplied.)
            Questions (3) and (4):
            We turn, then, to the matters of indemnification and liability insurance.  In considering these questions we must start with the fundamental proposition that an irrigation district, as a municipal corporation or political subdivision of the state, has only those powers which have been expressly granted to it by the legislature or as are to be necessarily implied from such expressly granted powers.  Accord, AGO 65-66 No. 37 [[to L. Edward Brown, Prosecuting Attorney Grays Harbor County, September 15, 1965]], copy enclosed.
            With this rule in mind we have searched all of the statutes relating to this category of districts but have found no grant of authority either directly to indemnify the officers or employees of such a district against the possibility of tort liability arising from the performance of their official duties or to purchase liability insurance for the purpose of providing such indemnification.  In this regard we have made note of a statute which, by amendment, could well be broadened to authorize such insurance but which does not now do so; i.e., RCW 87.03.160 which provides that:
            "The board of directors of irrigation districts  [[Orig. Op. Page 4]] shall have the power to contract for and pay the premium upon group life, health and accident insurance upon its employees and pay the premium therefor."
            A simple addition of "liability insurance" to the types of insurance which may be procured by an irrigation district under this statute would, at least in part, provide an answer to the problem which has precipitated your present request, we would think.  In addition, we would also call to your attention two other recently enacted statutes involving other categories of municipalities which could serve as a pattern for the enactment of similar legislation for irrigation districts.  The first of these is RCW 36.16.136, codifying § 1, chapter 59, Laws of 1969, Ex. Sess., which provides as follows with respect to the authority of counties:
            "The board of county commissioners of each county may purchase liability insurance with such limits as they may deem reasonable for the purpose of protecting their officials and employees against liability for personal or bodily injuries and property damage arising from their acts or omissions while performing or in good faith purporting to perform their official duties."
            The other recent statute of similar import which might be taken as a guide here is § 1, chapter 142, Laws of 1972, Ex. Sess., relating to school districts which provides as follows:
            "Whenever any action, claim or proceeding is instituted against any director, officer, employee or agent of a school district or intermediate school district arising out of the performance or failure of performance of duties for, or employment with any such district, the board of directors of the school district or intermediate school district board, as the case may be, may grant a request by such person that the prosecuting attorney and/or attorney of the district's choosing be authorized to defend said claim, suit or proceeding, and the costs of defense, attorney's fees, and any obligation for payment arising from such action may be  [[Orig. Op. Page 5]] paid from the school district's general fund, or in the case of an intermediate school district, from any appropriation made for the support of the intermediate school district, to which said person is attached:  PROVIDED, That costs of defense and/or judgment against such person shall not be paid in any case where the court has found that such person was not acting in good faith or within the scope of his employment with or duties for the district."

            We trust that the foregoing will be of some assistance to you.
Very truly yours,
Attorney General
Deputy Attorney General
Assistant Attorney General
                                                         ***   FOOTNOTES   ***
1/See, Also, Barnum v. State, 72 Wn.2d 928, 435 P.2d 678 (1967); Hosea v. Seattle, 64 Wn.2d 678, 393 P.2d 967 (1964).