THE ATTORNEY GENERAL IS IN RECEIPT OF YOUR QUESTIONS, ASKING, IN EFFECT:
(1) WHEN CRIMINAL OFFENDERS ARE ORDERED BY THE COURT TO PERFORM COMMUNITY SERVICE WORK ON BEHALF OF A GOVERNMENTAL ENTITY (I.E., COUNTY, CITY, SCHOOL DISTRICT, OR STATE AGENCY), TO WHAT EXTENT COULD THAT GOVERNMENTAL AGENCY BE HELD LIABLE FOR THE TORTIOUS CONDUCT OF THE OFFENDER WHICH CAUSES INJURY OR PROPERTY DAMAGE TO THIRD PARTIES?
(2) WOULD NON-PROFIT, PRIVATE PARTICIPATING SPONSORS BE TREATED DIFFERENTLY, FOR PURPOSES OF TORT LIABILITY TO THIRD PARTIES?
(3) IF SUCH AN OFFENDER, WHILE PERFORMING COMMUNITY SERVICE WORK ON BEHALF OF A GOVERNMENTAL ENTITY OR A PRIVATE NON-PROFIT ORGANIZATION, IS INJURED ON THE JOB, TO WHAT EXTENT MIGHT THE AGENCY BE LIABLE TO THE OFFENDER FOR SUCH INJURY?
BECAUSE THE ANSWERS TO YOUR QUESTIONS NECESSARILY INVOLVE THE ASSESSMENT OF FACT QUESTIONS, AN OFFICIAL OPINION OF THE ATTORNEY GENERAL WOULD LIKELY NOT BE APPROPRIATE OR COMPLETELY RESPONSIVE TO THE QUESTIONS YOU HAVE ASKED TO BE ADDRESSED. I AM THEREFORE AUTHORIZED TO OFFER YOU THIS INFORMAL LEGAL OPINION REGARDING YOUR QUESTIONS. THE OPINIONS EXPRESSED HEREIN ARE THOSE OF THE AUTHOR ONLY AND SHOULD NOT BE CONSTRUED TO BE AN OFFICIAL OPINION OF THE ATTORNEY GENERAL. PLEASE FEEL FREE TO CONTACT ME IF YOU STILL HAVE QUESTIONS ON THE SUBJECT AFTER REVIEWING THIS LETTER.
GENERALLY, YOU ARE ASKING WHETHER, AND TO WHAT EXTENT, TORT LIABILITY MIGHT ARISE ON BEHALF OF A GOVERNMENTAL OR PRIVATE AGENCY, WHICH ACCEPTS THE COURT-ORDERED SERVICES OF A CRIMINAL OFFENDER. THE LIABILITY QUESTIONS FOCUS ON INCIDENTS ARISING AS A RESULT OF TORTIOUS CONDUCT OF THAT OFFENDER AND/OR FOR THE WORK-RELATED INJURIES THAT OFFENDER MAY INCUR HIMSELF. THE OKLAHOMA COURTS HAVE AUTHORITY UNDER THE PROVISIONS OF THE COMMUNITY SERVICE SENTENCING PROGRAM, ESTABLISHED PURSUANT TO THE PROVISIONS OF 22 O.S. 991A-4 (1988), TO ORDER AN OFFENDER TO PERFORM COMMUNITY SERVICE WORK AS A PART OF HIS OR HER CRIMINAL SENTENCE. THE ACT SPECIFIES THE ELIGIBILITY REQUIREMENTS FOR OFFENDERS PARTICIPATING IN THE PROGRAM (22 O.S. 991A-4(B)) AND PROVIDES, AMONG OTHER THINGS, THAT YOUR AGENCY, THE PROBATION AND PAROLE DIVISION OF THE DEPARTMENT OF CORRECTIONS SHALL ADMINISTER THE PROGRAM, EXCEPT IN COUNTIES WITH A POPULATION OF AT LEAST $50,000, WHICH OPERATE AN EXISTING PROGRAM (22 O.S. 991A-4(C) (1988)). PARTICIPATION IN THE PROGRAM BY GOVERNMENTAL ENTITIES AND NON-PROFIT ORGANIZATIONS IS VOLUNTARY. 22 O.S. 991A-4(F).
THERE ARE SEVERAL FACT QUESTIONS WHICH DIRECTLY IMPACT THE ANALYSIS OF THIS OPINION. BECAUSE A DETERMINATION OF QUESTIONS OF FACT DEPEND UPON THE CIRCUMSTANCES OF ANY GIVEN CASE, QUESTIONS OF FACT ARE NOT THE PROPER SUBJECT OF AN OFFICIAL OPINION OF THE ATTORNEY GENERAL, HOWEVER, FOR PURPOSES OF THIS INFORMAL OPINION, A FEW FACTS WILL BE PRESUMED. INITIALLY, IT IS PRESUMED THAT THE OFFENDERS IN QUESTION ARE PROPERLY QUALIFIED TO PARTICIPATE IN THE PROGRAM AND ARE SENTENCED IN ACCORDANCE WITH THIS STATUTORY SCHEME. SECONDLY, IT IS PRESUMED THAT IN A COURT OF LAW, THE OFFENDER PARTICIPATING IN THE PROGRAM COULD BE FOUND, AS A MATTER OF FACT AND LAW, TO BE AN 'EMPLOYEE OF THE