INDEMNIFICATION POLICY FOR REGENTS, ADVISORY BOARD MEMBERS,

AND BOARD COMMITTEE MEMBERS (ADOPTED APRIL 6, 2009)

Introduction

Section 2.12 of the Bylaws of the Board of Regents provides:  

Members of the Board of Regents, Regents’ Committees, Regents Emeriti, 

Smithsonian  advisory  bodies,  officers,  or  employees  of  the  Smithsonian 

may  be  indemnified  for  any  and  all  liabilities  and  reasonable  expenses 

incurred in connection with any claim, action, suit, or proceeding arising 

from  present  or  past  service  for  the  Smithsonian  Institution,  in 

accordance with resolutions adopted by the Board. 

The purpose of this policy is to describe the circumstances in which members of the 

Smithsonian Board of Regents, advisory boards, and board committees may be eligible 

indemnification as provided for in the Bylaws.  In the non‐profit sector, board members are 

entitled to indemnification in certain circumstances because of the potential liability they 

face not only for the actions they take, but simply by virtue of their positions.  This policy 

establishes similar protections for members of the Smithsonian’s boards and board 

committees in recognition of their distinct role as volunteers in the oversight of the 

Smithsonian’s affairs. 

Background

Smithsonian personnel are entitled to significant protections from liability under Federal 

law.  Most significantly, the United States Court of Appeals for the District of Columbia 

Circuit has ruled that the Smithsonian Institution is an “independent establishment of the 

United States” for purposes of the Federal Tort Claims Act, 28 U.S.C. 1346, 2671 et seq.  See 

Expeditions Unlimited Aquatic Enterprises, Inc. v. Smithsonian Institution, 566 F.2d 289, 296 

(D.C. Cir. 1977) (en banc).  Consequently, Smithsonian personnel are entitled to the 

benefits of the Federal Employees Liability Reform and Tort Compensation Act of 1988, 

Pub. L. No. 100‐694, 102 Stat. 4564.  That Act, commonly known as the Westfall Act, grants 

Smithsonian personnel absolute immunity from common‐law tort claims arising out of acts 

that they undertake in the course of their official duties.  See 28 U.S.C. 2679(b)(1).   

The Westfall Act provides Smithsonian personnel with their primary safeguard from civil 

liability suits.  If an eligible individual is sued for wrongful or negligent conduct, the Act 

empowers the Attorney General to certify that the individual was acting within the scope of 

his office or employment at the time of the incident out of which the claim arose.  28 U.S.C. 
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2679(d)(1),(2).  Upon certification, the individual is dismissed from the action, and the 

United States is substituted as the defendant in the place of the employee.  The litigation is 

thereafter governed by the Federal Tort Claims Act.  See Osborn v. Haley, 549 U.S. 225, ___ 

(2007).  

The Westfall Act provides Smithsonian personnel with substantial protections from civil 

liability, and the Smithsonian Institution invokes its protections on behalf of its personnel 

when the Act applies.  Smithsonian personnel nevertheless may be subject to liabilities that 

fall outside of the coverage of that Act.  The Smithsonian recognizes that its personnel, like 

others who exercise a public trust, cannot be expected to act forthrightly in the best 

interests of the Institution if their actions may result in personal liability.  See Harlow v.

Fitzgerald, 457 U.S. 800, 814 (1982) (recognizing “the danger that fear of being sued will 

dampen the ardor of all but the most resolute, or the most irresponsible public officials, in 

the unflinching discharge of their duties” (internal quotation marks and brackets omitted)). 

In addition to the protections provided by Federal law, the Board of Regents intends to 

provide members of Smithsonian boards and board committees with indemnification in 

accordance with guidance set out in this policy.  This policy expresses the general principle 

that Smithsonian personnel are entitled to protection from personal financial liability when 

they take actions on behalf of the Smithsonian Institution with an objectively reasonable 

and good‐faith belief that those actions are in the best interests of the Institution.   

Legal Defense and Payment of Liabilities of Smithsonian Board and Committee

Members

I.   Indemnification  

A.   Eligible Persons and Scope

The Smithsonian Institution may furnish the members of its Board of Regents, 

advisory boards, and board committees (“Eligible Persons”) with legal defense and 

pay financial liabilities, including expenses, incurred in connection with any 

proceeding initiated against any Eligible Person or requiring an Eligible Person’s 

participation as a witness by reason of serving on a Smithsonian board or 

committee, or serving at the Smithsonian’s request as a member of or 

representative to an entity outside the Smithsonian.  

B.   Proceedings Covered

“Proceeding” for the purposes of this policy means an actual or threatened criminal, 

civil, or other proceeding, whether administrative, arbitrative, or investigative. 
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C.   Advances

If an advance is timely requested as provided for in Section IV. A. (below), the Board 

of Regents shall pay an Eligible Person’s reasonable legal expenses in advance of a 

final judgment or disposition of a proceeding if the Board determines that the 

Eligible Person is likely to satisfy the standards for indemnification.  The Board shall 

require the Eligible Person to provide satisfactory assurances of repayment in the 

event that the Board determines at a later date that the Eligible Person is not 

entitled to indemnification.  

D.   Success on the Merits

Provided that the Board of Regents has determined that the standards for 

indemnification below have been met, the Board shall indemnify an Eligible Person 

for reasonable expenses, including attorney’s fees, incurred in presenting a defense 

in a civil or other non‐criminal proceeding if the Eligible Person has been wholly 

successful, on the merits or otherwise, in such defense. 

II.   Standards for Indemnification

Defense or payment under this policy may be provided only if all of the following 

conditions of conduct are met to the satisfaction of the Board of Regents:  

• The Eligible Person’s actions or omissions were within the scope of his or her 

Smithsonian duties and authority.  

• The Eligible Person proceeded in an objectively reasonable and good‐faith belief 

that the conduct was in the best interests of the Smithsonian. 

• The Eligible Person reasonably believed that the conduct was lawful. 

• The acts or omissions did not constitute dishonesty, gross negligence, recklessness, 

or intentional misconduct. 

• The Eligible Person did not receive any personal benefit to which he or she was not 

legally entitled.  

• The Eligible Person cooperates continuously and fully with the Smithsonian 

Institution and the Department of Justice in the defense of the proceeding.  

III.   Exclusions

  The protections of this policy shall not extend to: 

• Any liability to the Smithsonian Institution or the United States or defense expenses 

incurred in a proceeding resulting in liability to them. 
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• Any proceeding brought by an Eligible Person against the Smithsonian Institution or 

its interests.  

• Any Smithsonian Institution, Inspector General, or legislative inquiry, audit, or 

review.  

• Any financial liability, penalty, assessment, or expenses paid by insurance or 

indemnification from another source.   

• Any indemnification prohibited by law. 

IV.  Procedure to Request Representation or Payment of Liabilities

A.   Time Period for Requests   

To qualify for legal defense and payment of liabilities an Eligible Person must inform 

the Smithsonian Institution’s Office of General Counsel, within five business days of 

receiving actual notice, that the Eligible Person has been named as a party or 

witness in a proceeding.      

The Office of General Counsel will make an initial determination, in consultation 

with the United States Department of Justice, whether the Eligible Person is subject 

to the protections of the Westfall Act or other Federal laws.  If so, the Office of 

General Counsel will request the Department of Justice to represent the Eligible 

Person in accordance with the Department’s regulations, 28 C.F.R. §§ 50.15, 50.16.  

Alternatively, the Office of General Counsel may offer representation to the Eligible 

Person through its attorneys or through outside counsel.  

In the event that representation is not provided by the Department of Justice or the 

Smithsonian (through OGC or outside counsel), the Eligible Person shall notify the 

Office of General Counsel within five business days after receiving notice of that 

decision whether the Eligible Person intends to seek indemnification of liability or 

expenses.  The Eligible Person may submit a request for advance payment of 

expenses at any time thereafter and must submit a request for indemnification no 

later than 30 days after a final non‐appealable judgment, order, or settlement.  The 

Office of General Counsel will advise the Regents whether the request should be 

granted or denied.    

B.   Decision by the Board of Regents  

The Board of Regents will consider requests for legal defense, advances, and 

payment of liabilities based on its judgment and guided by the standards set out in 

this policy.  The Board may make its decision by:  (1) a majority vote of a quorum of 
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the members of the Board or (2) a majority vote of a quorum of the members of an 

appropriate Committee designated by the Board. If such a quorum is not obtainable 

or, even if obtainable, a quorum of disinterested Regents so directs, the Board may 

seek and rely upon a written opinion of independent legal counsel. 

V.   Prerogatives of the Board of Regents

The Board of Regents may continue to refine and amend this policy based on its 

experience and judgment, and reserves the right to modify or withdraw this policy in its 

sole discretion, except as to proceedings based on acts or omissions that occurred 

before the modification or withdrawal.