Chapter 1 - The Legal Landscape of Risk Management

There really isn’t any question about it: there are legal risks associated with being a volunteer; you can’t avoid them completely, you can only educate yourself about those risks and ways of managing them.

CHAPTER 2. INTRODUCTION, LIMITS AND CAUTIONS:
A LEGAL SHORT COURSE

This part of the Handbook gives you a very brief overview of the law, and especially the law as it relates to issues that commonly arise in being a volunteer. You may be a service-providing volunteer, or a volunteer officer or director of a nonprofit corporation, or a manager of volunteers. We’ll try to address some of the more common ways volunteers can be impacted by the law.

This manual is not going to answer any of your legal questions. This manual is not legal advice, and is no substitute for the work of your attorney or your organization’s attorney. At most, this Handbook is intended to help you use your attorney in a cost-effective way. You should not rely on this manual for anything but background information and concepts. If you don’t understand this, you should re-read the Disclaimer on the first page.

Remember that the rules and concepts discussed in this manual reflect Alaska law, and then only at the time the manual was written. You should not regard this manual as helpful in any way in understanding the law of any other state.

Broadly speaking, liability for damages can arise in three ways: (1) for breach of a duty imposed by common law (a tort); (2) for breach of a duty imposed by agreement (a contract); (3) or for breach of a duty imposed by statute (a crime or civil offense). The introduction to law set out in this Handbook is generally organized around those three broad sorts of grounds for liability. Because those distinctions aren’t all that sharp, there is considerable overlap.

Like any other specialized area of knowledge, the law has its own terms and language. This manual attempts to avoid legal jargon, but some special terms have to be used. Wherever possible, those terms are linked when used for the first time, and are defined in a Glossary at the end of this manual. There’s also a Table of Abbreviations.

A special note on terminology here. A director is a member of the board of directors of a nonprofit corporation and is almost always a volunteer. An executive director or chief professional officer is the nonprofit equivalent of a chief executive officer, and is generally a paid staff person, and therefore not a volunteer. In these materials, a director means a member of the board of directors; an executive director means a paid staff person who manages the day-to-day affairs of a nonprofit corporation.

The law, even just those aspects of the law that affect volunteers, has become staggeringly complex. Most people, even lawyers, would likely agree that it has become too complex. But however complex, it is part of the environment in which you as a volunteer and your volunteer agency must function. You must have some working knowledge to avoid the pitfalls and problems which you otherwise might not even know were there.

Part of the complexity of the law results from the concept that different standards of conduct apply to different kinds of persons. Consider the following kinds of "volunteers."

• "Pure" Volunteers. Alaska defines the pure volunteer as one who does or undertakes to do that which he or she is not legally bound to do, and which is not in pursuance or protection of any interest. This definition excludes many kinds of persons you might normally regard as a "volunteer."
  
  
• Directed Service. Sometimes the court system will order a person to perform a number of hours of "volunteer" work as a part of a criminal sentence or civil penalty. If a judge has ordered you to do something, pretty clearly you are not a "volunteer."
  
  
• Service for Compensation. If you have an agreement that you will receive room and board in return for "volunteer" services, you are receiving consideration in return for your services; not money but meals and a place to sleep. Are you still a "volunteer"?
  
  
• Officers and Directors of Nonprofit Corporations. Officers and directors of nonprofit corporations owe a special set of duties and obligations to the corporation and to persons dealing with the corporation. By accepting selection as an officer or director, that person agrees to be bound to those higher, more rigorous standards.
  
  
• Professionals Acting as Volunteers. A professional — a distressingly vague term, but clearly incorporating attorneys, accountants, physicians, dentists and architects, among others — when acting in their area of expertise is held to a higher standard of conduct than a non-professional.
  
  
• Persons Acting in Their Own Interests. By definition, a person acting in pursuit of their own interest is not a "volunteer" in the legal sense. For example, a director or officer of a condominium homeowner’s association may be acting in pursuance of his or her own interests, since the decisions made will directly affect his or her own property interests.
  
  
• Student Volunteers. Students may be required to perform community service as a part of their course work. This is sometimes called "service learning." These students are receiving something - a grade and credit for the course - in return for their volunteer work. This kind of work is clearly not traditional volunteer work, either.
  
  
• Subsidized Volunteers. There are a variety of different kinds of "subsidized" volunteers. Americorps, VISTA and the Peace Corps, as well as organizations like Foster Grandparents and Senior Companions might provide a living allowance or stipend as partial compensation for the services individuals in those organizations provide. Clearly these are not "traditional" volunteers, either.

All of these persons are to some extent "volunteers," but you can see that perhaps the same legal standards should not apply to all of them. Just the sheer variety of volunteers illustrates how the different situations confronting the courts and lawmakers make the law more complex.

A second reason the law is so complex is because it changes all the time. Non-lawyers tend to regard the law as something that is immutable and unchanging. It is not; it changes with our society. Indeed, much of the controversy about the law today involves those areas that are changing and evolving.

Another source of complexity is the number of sources of the law and the sometimes inconsistent or even contradictory laws that get passed. In Fairbanks, for example, there are four different law-making bodies (the United States, the State of Alaska, the Fairbanks North Star Borough and the City of Fairbanks), each adopting statutes and regulations with only a passing acknowledgement that the other three exist.

An additional complexity arises from the existence of different courts. The different courts do not always follow the decisions that each of them may make, leading to additional confusion and complexity.

A final complexity arises out of the nature of law itself. Some people think the law is all written down someplace, and that all you have to do is look it up to know what it is. While some law is written down, most of the time the important stuff is not. You may not always find clear answers to the questions you have.

One source of law is written: constitutions, statutes, ordinances, and regulations. Statutes and ordinances are adopted by elected officials, Congress or legislatures, or city councils and borough assemblies. But it just isn’t possible to write statutes that fit all possible facts. To some extent, the "holes" in statutes are addressed by regulations, which are rules written by bureaucrats. But ultimately, someone must decide whether a particular rule applies to a given set of facts.

Court decisions, particularly those made by appellate courts, are the other source of law. Case law is precedent, instances where the same facts or similar facts have been applied to a rule (whether constitution, statute or regulation) in the past and clarify the rule to be followed in another case. Case law tends to be more or less stable, or at least not changed without good reason. This is the rule of stare decisis, which allows you to rely upon a previous case decision in deciding the law in a present situation.

A special word about abbreviations: statutes in Alaska are abbreviated "AS" for Alaska Statutes. Regulations in Alaska are abbreviated "AAC" for Alaska Administrative Code. From time to time, these materials will point you to specific statutes and regulations using these abbreviations. For more information on abbreviations and acronyms, please see the Table of Abbreviations.

As mentioned earlier, the law is changing all of the time. But there may not have been a time in the last thirty years when the law of nonprofit organizations has changed faster and more significantly than it is right now. Several factors have come together to create strong pressure for change.