Public Risk August 2011 by Moire Marketing Partners

Published by the Public Risk Management Association

www.primacentral.org

AUGUST 2011

Texas Risk Manager Develops Comprehensive Plan to Save His Entity Millions MEET JAMES E. HUCKABY, ARM-P, PRIMA’S 2011 PUBLIC RISK MANAGER OF THE YEAR

DEFEATING THE DEPOSITION DOLDRUMS DELAYED MAINTENANCE TO DAMS AND LEVEES CAN BREACH YOUR BUDGET

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Risk. Reinsurance. Human Resources.

Volume 27, No. 7 | August 2011 | www.primacentral.org

The Public Risk Management Association promotes effective risk management in the public interest as an essential component of public administration.

EXECUTIVE DIRECTOR Mark G. Doherty, CAE

CONTENTS

PRESIDENT Cindy B. Mallett, AIC, CWCP, ARM-P Risk Manager City of Gainesville Gainesville, GA PAST PRESIDENT Laura Peterson, JD, MPA Director of Risk and Insurance University of Wyoming Laramie, WY

6 TEXAS RISK MANAGER DEVELOPS COMPREHENSIVE PLAN TO SAVE HIS ENTITY MILLIONS Meet James E. Huckaby, ARM-P, PRIMA’s 2011 Public Risk Manager of the Year

PRESIDENT-ELECT Dan Hurley, CSP, ARM-P, MS Senior Director, Risk Management & Safety Norfolk Public Schools Norfolk, VA DIRECTORS Eddie Beecher Risk Manager City of Pompano Beach Pompano Beach, FL Betty Coulter Risk Management Director City of Asheville Asheville, NC

By Jennifer Ackerman, CAE

Matt Hansen, MPA Director, Risk Management Division City & County of San Francisco San Francisco, CA

11 DEFEATING THE DEPOSITION DOLDRUMS

Dave Parker, ARM-P Risk Manager Pima County Sheriff’s Department Tucson, AZ

By Joseph G. Jarret, Esq.

14 DELAYED MAINTENANCE TO DAMS AND LEVEES CAN BREACH YOUR BUDGET By Kenny Smith

Marilyn Rivers, CPCU, ARM, AIC Director of Risk and Safety City of Saratoga Springs Saratoga Springs, NY Regan Rychetsky Director, HHS Enterprise Risk Management and Safety Texas Health and Human Services Commission Austin, TX EDITOR Jennifer Ackerman, CAE Senior Manager, Communications 703.253.1267 • jackerman@primacentral.org ADVERTISING Donna Stigler 888.814.0022 • donna@ahi-services.com

Public Risk (ISSN 0891-7183) is published 10 times per year by the Public Risk Management Association, 700 S. Washington St., #218, Alexandria, VA 22314 tel: 703.528.7701 • fax: 703.739.0200 email: info@primacentral.org • Web site: www.primacentral.org

14 IN EVERY ISSUE 4 News Briefs | 19 Advertiser Index | 20 Member Spotlight

Opinions and ideas expressed are not necessarily representative of the policies of PRIMA. Subscription rate: $140 per year. Back issue copies for members available for $7 each ($13 each for non-PRIMA members). All back issues are subject to availability. Apply to the editor for permission to reprint any part of the magazine. Periodical postage paid at Alexandria, VA, and additional mailing offices. POSTMASTER: Send address changes to PRIMA, 700 S. Washington St., #218, Alexandria, VA 22314. Copyright 2011 Public Risk Management Association Reprints: Contact the Reprint Outsource at 717.394.7350.

AUGUST 2011 | PUBLIC RISK

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Message from PRIMA President Cindy B. Mallett

SHOWING APPRECIATION

t has been quite a summer. Sweltering heat, wildfires, flooding and other extreme conditions have made headlines across the country. Here in Georgia, this week’s forecast calls for temperatures just below 100 degrees, with high humidity and no breeze. While I sit in an air-conditioned office, there is no escape from the heat for our public works, parks, and public safety personnel. Through driving rain, blinding snow or oppressive heat, they are there, providing necessary services under very difficult, even dangerous, conditions. Some of them have been working this way for 30 years or more. You have people like this in your own organizations—bus drivers who safely transport children despite the distractions both inside and outside their vehicles, jailers who spend nights and holidays with incarcerated individuals instead of their own families, or sanitation workers who lift, carry and haul away the items the rest of us casually discard. Have you thanked these individuals lately? It’s easy for risk managers to become cynical about the motivations of our coworkers and others with whom we interact in the workplace. Most of them, though, just want to earn a living and contribute where they can. Margaret Cousins tells us, “Appreciation can make a day—even change a life. Your willingness to put it into words is all that is necessary.” I encourage you to pay attention, and show your appreciation to all the members of your workforce. At our recent annual conference in Portland, PRIMA showed appreciation to several special members—the winners of our 2011 Achievement Awards. These very deserving individuals were recognized in several categories for their outstanding contributions to public risk management. I applaud each of the winners, and all who were nominated for these awards.

This month’s cover story features PRIMA’s 2011 Public Risk Manager of the Year, James E. Huckaby, ARM-P, from Mesquite ISD in Mesquite, Texas. James exemplifies the best in public sector risk management. A true professional, he has earned the respect of his colleagues and superiors and has implemented programs and practices that protect his organization and allow him to demonstrate the value of his work.

You have people like this in your own organizations—bus drivers who safely transport children

James is also quite a mentor. In fact, he is the person that most impacted my decision to become involved in PRIMA leadership. His encouragement convinced me to volunteer for a committee, and later, to run for a seat on the PRIMA board. In honor of James, I’d like to lend the same encouragement to you. I challenge you to get involved with PRIMA. It will enhance your experience and allow you to share your talents with your fellow risk managers. If you want to learn more about how to get involved, I welcome you to contact me at any time. Congratulations to James, and to all of this year’s very worthy achievement award winners! Sincerely,

despite the distractions both inside and outside their vehicles, jailers who spend nights and holidays with incarcerated individuals instead of their own families, or sanitation workers who lift, carry and haul away the items the rest of us casually

Cindy B. Mallett 2011–2012 PRIMA President Risk Manager City of Gainesville, Ga.

discard. Have you thanked these individuals lately?

AUGUST 2011 | PUBLIC RISK

News Briefs

NEWS

BRIEFS R.I. GOVERNOR SHIELDING MURDERER FROM FEDERAL JUSTICE SYSTEM The governor of Rhode Island, Lincoln Chafee, is shielding a murderer from execution by refusing to turn him over to federal authorities to face charges that could result in the death penalty, according to a public-interest group that investigates government corruption and abuse. Rhode Island is one of 16 states (along with the District of Columbia) that don’t have capital punishment and the 33-year old murderer, Jason Pleau, faces execution under federal guidelines. Police say Pleau was the masked gunman who killed a gas station manager outside a Providence-area bank last year, according to a Judicial Watch report. Pleau was a parolee with a lengthy criminal record when he pulled the trigger, according to local news reports. Pleau killed a 49-year-old gas station manager who was making a morning deposit outside the doors of a local bank. Federal gun charges filed against Pleau carry a possible death penalty. The federal government has requested custody of Pleau, but Chafee refuses, explaining that he “cannot in good conscience voluntarily expose a Rhode Island citizen to a potential death penalty prosecution.” The Republican turned Independent further said in a statement published in local media that capital punishment is “a penalty consciously rejected by the state of Rhode Island, even for those guilty of the most heinous crimes.” However, the governor stresses that his “disapproval of the federal government’s request” in no way minimizes the “tragic and senseless nature” of the murder. He goes on to extend his “deepest sympathy to the victim’s family for its “unspeakable loss.”

SARASOTA, FLA., WANTS MORE SECURITY AT CITY COMMISSION MEETINGS Sarasota resident Jim Lampl was just trying to prove a point. At a recent commission meeting, Lampl threw a plastic bag filled with cigarette butts across the commission table, toward the commissioners. He was showing that the smoking ban would not only help limit second-hand smoke, but also help littering problems at Five Points Park, reports Patch.com. The action, however, brought concerns to Commissioner Willie Shaw. At an informal city meeting, Shaw said, “To take and toss a bag across to the city manager, a bag that could’ve contained anything.” Currently a zone 5 police officer, on a rotating basis, is assigned to commission meetings. Commissioners have discussed moving toward having the same officer at each meeting. “As we grow, we need to start looking at some different safety procedures within in the chambers before we get in there and during the time we [are] in there,” Shaw said.

PUBLIC RISK | AUGUST 2011

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SAN FRANCISCO MAYORAL HOPEFULS REJECT PRIVATE GUARDS AT HOSPITALS For three years, the mayor’s office and the department of public health in San Francisco have tried to save money by transferring security at two public hospitals to a private security firm. And for three years there has been a fight about it, reports The Examiner. But this year, there’s a mayoral race and endorsements to be earned, and that makes the fight more intense. At least five candidates for mayor are scheduled to appear in front of city hall to support the city employees affected by the proposed change. Workers from the department of public health and the sheriff’s department provide security at San Francisco General and Laguna Honda hospitals. They ensure the safety of staff, visitors and patients, some of whom need to be held on involuntary psychiatric holds. The City anticipates that replacing 71 employees with private security guards could save $4 million a year, but those workers say the quality of services would deteriorate without the experience and training of sworn officers.

TECH SECURITY SPENDING TO RISE IN WAKE OF ATTACKS Big companies and government agencies likely will have to rethink their approach to tech security in the wake of the disbanding of hacktivist group, LulzSec, security analysts say. Spending on information technology security already is growing faster than spending on general technology, reports USA Today. And corporate and government tech buyers will have to dole out even more to defend against profit-minded cyberthieves and spies looking to swipe state and corporate secrets. In fact, global spending on security products and services is expected to reach $71 billion by 2014, up from $55 billion today, according to Lawrence Pingree, research director for Gartner. The recent hacking escapades of LulzSec underscore how hacktivists, motivated by the desire to express an ideology, have shaped a new kind of threat that’s gaining steam. “We’re seeing loose communities of like-minded people combine their abilities and harness the power of crowds,” says Jonthan Penn, strategy analyst at Forrester Research. “This is the dark side of the same kinds of things we’re seeing support the popular uprising in the Middle East.”

The replaced workers are expected to be reassigned to other duties and will not be laid off, according to Mayor Ed Lee’s budget director.

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AUGUST 2011 | PUBLIC RISK

TEXAS RISK MANAGER DEVELOPS COMPREHENSIVE PLAN TO SAVE HIS ENTITY MILLIONS MEET JAMES E. HUCKABY, ARM-P, PRIMA’S 2011 PUBLIC RISK MANAGER OF THE YEAR By Jennifer Ackerman, CAE

PUBLIC RISK | AUGUST 2011

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Huckaby was recently named the Public Risk Management Association’s 2011 Public Risk Manager of the Year. Huckaby is the 18th public entity risk manager to receive this honor since its inception in 1994. The

James E. Huckaby, ARM-P, was not new to risk management when he joined the Mesquite Independent School District (ISD) in Texas. As the safety coordinator for the City of Garland, Texas, Huckaby became well acquainted with the challenges of public sector risk management. But in 1992, Huckaby took on his biggest professional challenge when he accepted the position as risk manager of the Mesquite ISD, an entity with no formal risk management program. “Public entities in Texas are exempt from following OSHA guidelines,” said Huckaby. “So I had the task of convincing the organization to establish an appropriately funded risk management program that had a unified, integrated loss control effort throughout the Mesquite ISD.” Huckaby’s program has garnered numerous accolades in the nearly 20 years since its inception, with Huckaby himself being named one of the top 10 risk managers in America by American City & County magazine. “The philosophy of the Mesquite ISD risk management department is to be conscientious toward the safety culture and thereby facilitate the district’s embrace of safety values in order to operate effectively for the benefit of its students,” said Huckaby. “I believe that the risk management function is a key component to addressing various operational goals of the school district.” Huckaby was recently named the Public Risk Management Association’s 2011 Public Risk Manager of the Year. Huckaby is the 18th public entity risk manager to receive this honor since its inception in 1994. The Public Risk Manager of the Year award was established to reward a risk manager who has effectively coordinated and managed a risk management program for a public entity facing out-ofthe-ordinary challenges. He was chosen for this prestigious award by a panel of his peers.

Public Risk Manager of the Year award was established to reward a risk manager who has effectively coordinated and managed a risk management program

“James has shown a commitment to risk management that made him a standout in a very competitive field of candidates this year,” said Marshall Davies, Ph.D., PRIMA deputy executive director. “He has shown the kind of dedication to public sector safety and accountability that personifies PRIMA’s Public Risk Manager of the Year.”

for a public entity facing out-of-theordinary challenges. He was chosen for this prestigious award by a panel of his peers.

SAFETY IS A CLICK AWAY One of the duties of Huckaby’s department is to provide safety training information on a regular basis to district employees. “Maintenance employees, food service and custodians receive regular safety information that supervisors use in safety meetings held each month,” said Huckaby. “But it has always been a challenge to reach campus employees such as teachers, paraprofessionals and administrators. Campus personnel are focused on instruction and it is difficult to break them away from the day-to-day functions of the campus to attend safety training.” In August 2009, the district introduced a new e-Learning system where employees can create their own e-Learning training modules. Huckaby’s department took advantage of the new system to create online safety training sessions for campus personnel. “Campus employees can now sit at their own computers and attend safety training sessions at their leisure, instead of

AUGUST 2011 | PUBLIC RISK

PRIMA’s 2011 Public Risk Manager of the Year being pulled away from instructional duties for traditional group training,” said Huckaby. The new training format was met with rave reviews and high participation numbers. Between September 2009 and August 2010, more than 2,800 district employees participated in the online training. “Participants are campus employees who would not otherwise be exposed to the safety training materials,” said Huckaby.

IMPROVED HEALTH CARE OPTIONS

Like most school districts, Mesquite ISD has seen its self-insured health insurance costs rise significantly over the last decade. To combat rising costs, Mesquite ISD, along with the City of Mesquite, opened an employee health center in 2007. The health center, which includes a clinic and pharmacy, is housed in a newly remodeled facility. The one-time cost to remodel and open the center totaled $700,000 with approximately $980,000 spent on payroll and benefits. “One-hundred percent of those expenditures were recouped in the first eight months of operation,” said Huckaby. “Besides being a tremendous benefit and convenience for district employees and dependents, the district’s savings exceeded $4.7 million, as of December 2010.” Since its inception, the clinic has seen approximately 345 patients a week, while the pharmacy fills an average of 1,200 prescriptions per week.

WORKERS’ COMPENSATION AND UNEMPLOYMENT Mesquite ISD utilizes several techniques to transfer the risk of financial loss. The two programs that have resulted in the greatest cost savings to the district are its self-insured workers’ compensation and unemployment programs. Through its self-insured workers’ compensation program, the district has managed to save more than $30.6 million in the 19 years since the program’s inception. The workers’ compensation program also includes an aggressive return-to-work (RTW) program, which benefits injured and uninjured employees. “RTW has by far made the single greatest impact on our workers’ compensation savings,” said Huckaby. “Fifty-five percent of the $30.6 million decline in costs can be attributed to our RTW efforts.”

PUBLIC RISK | AUGUST 2011

Huckaby said that the district has worked hard to convey to all departments the importance and benefits of returning employees to work as quickly as possible. Departments are encouraged to be creative when finding light-duty options for injured employees that allow them to be productive while working within their prescribed restrictions. Employees who originally objected to fellow workers earning full pay while performing “light-duty” assignments were re-educated by the district. “We helped them to see that it’s better to have an injured employee work in a restrictive capacity than be shorthanded,” said Huckaby. “Plus, there is a greater risk of injury for the remaining employees who are forced to work short-handed.” Huckaby’s department has also cultivated a working rapport with several local doctors. The doctors are schooled on the district’s return-to-work policy and are encouraged to return employees to work as soon as possible. “Effective communication with treating doctors has been the key to the success of Mesquite’s RTW program,” said Huckaby. Mesquite ISD manages its unemployment compensation financial liability exposure in a unique way. The district has elected to be a reimbursing employer (self-insured). Political subdivisions of the state, federally recognized Indian tribes and nonprofit organizations described in section 501(c)(3) of the Internal Revenue Code are entitled to elect to pay reimbursements in lieu of paying state income taxes. A reimbursing employer, like Mesquite ISD, differs from a regularly taxed employer in one very important way. “Instead of paying taxes to the Texas Workforce Commission on a quarterly basis, a reimbursing employer like Mesquite repays the state’s unemployment trust fund, dollar-for-dollar, for any benefit drawn by its ex-employees,” said Huckaby. “The documented savings to our district over the last five years has exceeded $2.5 million by operating our unemployment program this way.”

FACILITY SAFETY AUDIT PROGRAM Like most school districts, Mesquite ISD conducts safety audits of district campuses, kitchens and support buildings. However, Huckaby decided that a way to measure performance and disclose safety compliance trends was needed. Huckaby’s department developed a safety auditing tool that measures quantifiable safety scores, while allowing initial

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“The loss prevention programs that James implemented at Mesquite ISD have made a significant impact on the expended losses incurred by the district,” said John Palm, ARM, safety officer for Mesquite ISD. “Even if there are negative statistics, James finds a positive way to expound on them in order to encourage the department affected.”

benchmarking and annual scoring to evaluate improvement trends over time. “Most auditing checklists only allow for the auditor to note safety hazards,” said Huckaby. “This new safety auditing tool allows for the notation of safety hazards while deducting points based on the severity or number of occurrences.” Once data input is complete, a final score is provided based on the points deducted for each individual safety infraction. This score is then noted and trends are documented over time to reveal truer levels of improvement. “An added incentive of the auditing tool is the stimulation of constructive competitiveness between facility administrators,” said Huckaby. “Knowing that their scores are comparable to other district facilities, the administrators are further encouraged to take a more proactive role in the improvement of their facility’s safety scores.” In 2009, Huckaby and the Mesquite ISD received the risk management innovation award from the Texas Association of School Boards for its safety audit tool.

Huckaby’s significant accomplishments as Mesquite ISD’s risk manager are too numerous to count. In addition to creating risk programs that save his district thousands of dollars, he has a caring attitude and the kind of people skills that have established him as a mentor and a leader within the risk management industry. During the last 15 years, Huckaby has mentored numerous risk management professionals across the country. In 2003, he was instrumental in revitalizing the Georgia chapter of PRIMA, which had been inactive for six years. “The loss prevention programs that James implemented at Mesquite ISD have made a significant impact on the expended losses incurred by the district,” said John Palm, ARM, safety officer for Mesquite ISD. “Even if there are negative statistics, James finds a positive way to expound on them in order to encourage the department affected.” PRIMA congratulates James E. Huckaby on his career of risk management excellence!

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“ My town isn’t big enough to support a lawyer, but it can certainly support two!”

M A R K T WA I N

DEFEATING THE DEPOSITION DOLDRUMS By Joseph G. Jarret, Esq.

WHY DEPOSITIONS? In today’s litigious society, attorneys who sue public entities are increasingly scrutinizing the public risk manager as a vehicle by which to determine the standards and practice of the targeted entity. The most common methodology employed by plaintiffs’ attorneys to achieve this goal is the deposition. To belabor the obvious, in theory, a deposition is nothing more than a question and answer session, under oath, between a witness and at least one attorney. Some attorneys merely use a court reporter to record the testimony while others videotape their depositions. Every state has its own rules as to which method is appropriate or permissible. Although the ostensible purpose of a deposition is to give attorneys on opposite sides of a lawsuit the opportunity to question witnesses and examine key facts of a case, it isn’t unusual for some attorneys to have less-than-honorable intentions. The sad reality is, some attorneys take depositions, not so much to give witnesses an opportunity to inform them about what they know about a particular claim or incident, but rather to intimidate them, confuse them and get them to admit fault or liability. By being properly prepared, the public risk manager can avoid some of the common mistakes people make when giving their deposition.

AUGUST 2011 | PUBLIC RISK

Defeating the Deposition Doldrums

More often than not, the attorney who will be taking your deposition has given quite a bit of thought about what they hope to achieve by deposing you. In other words, she will have a strategy that will include being knowledgeable about the law and the facts of the case in issue, will have an idea as to how far she can go before your attorney objects and will be familiar with the local procedural and evidentiary rules.

AVOIDING THE PITFALLS & PRATFALLS More often than not, the attorney who will be taking your deposition has given quite a bit of thought about what they hope to achieve by deposing you. In other words, she will have a strategy that will include being knowledgeable about the law and the facts of the case in issue, will have an idea as to how far she can go before your attorney objects and will be familiar with the local procedural and evidentiary rules. Further, although some attorneys do come to depositions ill-prepared and engage in nothing more than a fishing expedition, you should presume that rare is the question that is asked to which the attorney does not already know the answer. Consequently, you should prepare for your deposition by reviewing any and all documentation and incident reports, as well as conferring with

PUBLIC RISK | AUGUST 2011

your entity’s attorney. Most importantly, tell the truth, regardless of the consequences for your entity. Although it seems ludicrous to admonish a risk manager or a member of your entity not to consume alcohol or drugs prior to or during a deposition, substances as seemingly innocuous as too much caffeine or over-the-counter cold medicines can dull the senses or agitate a person every bit as much as prescription medications. Most attorneys will ask deponents whether they are under the influence of any controlled, physician-prescribed medications or over-thecounter substances. If you or a member of your entity is taking any over-the-counter or physician-ordered medication, and those medications have the tendency to interfere with the ability to think or speak clearly, this fact should be disclosed on the record.1 Make a concerted effort not to anticipate the opposing attorney’s questions. Attorneys usually formulate their next question during a deposition based on your answer to the last question. When you provide an answer based on what you think the next question is going to be, you are doing the opposing attorney’s job for her, and possibly opening up lines of questioning she would not have thought of but for your answer. Further, a common tactic the opposing attorney may use to get you to say more than you have to is “the pregnant pause.” In a nutshell, you can presume an opposing attorney is resorting to this tactic when she asks you a question, you answer and then she sits quietly and looks at you for several seconds (which will seem like an eternity to some deponents). In this situation, most people have a natural inclination to fill the silence by expanding their answer well beyond the scope of the question asked. The opposing attorney is relying on this quirk of human nature, and you’d be wise to resist it.

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Make a concerted effort not to anticipate the opposing attorney’s questions. Attorneys usually formulate their next question during a deposition based on your answer to the last question. When you provide an answer based on what you think the next question is going to be, you are doing the opposing attorney’s job for her, and possibly opening up lines of questioning she would not have thought of but for your answer.

It is important to distinguish between pausing as a tactic used by an opposing attorney to trick a deponent and the positive aspects of pausing. Taking the time to pause for a moment or two before answering a question gives you time to ensure you understand the question, collect your thoughts and give your attorney an opportunity to object or advise you not to answer (based upon your jurisdiction) should she or he feel the question is inappropriate. Many deponents are hesitant to take time to think before speaking because they presume others will assume they are being disingenuous or are unsure of themselves. Better to be sure you fully understand the question than to answer inappropriately. While on that subject, speak slowly and clearly. Answer out loud and with words, not by shaking your head meaning “yes” or “no,” or saying “uh-huh” or “uh-uh.”2 The court reporter must be able to understand you to make an accurate record. Ronald Richards, in his extensive work, Preparing for Your Deposition, warns against getting into an argument with the opposing attorney during your deposition. Clearly, this is an argument you cannot win. Most attorneys will not try to start an argument with you because they know they’ll find out more if they put you at ease. Some attorneys, however, prefer an “in-your-face” confrontational style. If the opposing attorney tries to start an argument, don’t fall into this trap. Arguing with opposing counsel is your attorney’s job, not yours.3 Also, you should make a concerted effort not to lose your cool, temper or composure. Some deponents are of the mind that they do their entity a disservice if they don’t have a detailed answer for every question. The opposite is true. If you do not know the answer, you should concede that fact. Neither the opposing attorney nor your attorney presume to think that you have an answer for every question. Attempting to craft an answer based upon

facts with which you are not acquainted is a disservice. Never get involved in a guessing game. Further, terse “yes” or “no” answers are more than appropriate if that is what the question asks for. It is likewise appropriate to ask the opposing attorney to clarify or rephrase unclear or compound questions. Finally, never hesitate to advise your attorney or the opposing attorney of any special accommodations you will need in order to effectively give your deposition. Such accommodations can range from room temperature to lighting to hearing assistance to parking. Breaks for reasons of personal comfort are more than appropriate. You are well within your rights to request bathroom breaks, a drink of water or a break to refresh yourself. You can, in large part, prevent your deposition from being a daunting, intimidating experience if you take the time to prepare, ensure you understand the question being asked, pause before answering and not volunteer more information than asked. In so doing, you will go a long way in minimizing the stress often associated with depositions. END NOTES: 1. Barber, Kristopher S., Tips for Giving your Deposition, 2010. The Author is a founder of The Barber Law Firm, PC in Richardson, Texas 2. Koury, Kenneth P., Giving Deposition Testimony, 2005, Kenneth P. Koury is a California attorney based in Los Angeles 3. Richards, Ronald, Lawsuit: Preparing for your deposition 2004,on the web: withthecommand.com

Joseph G. Jarret, Esq., is an attorney, former public risk manager and a federal mediator and arbitrator.

AUGUST 2011 | PUBLIC RISK

DELAYED MAINTENANCE TO DAMS AND LEVEES CAN

BREACH YOUR BUDGET By Kenny Smith

PUBLIC RISK | AUGUST 2011

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With the tightening budgets many public entities are facing, discussions about where to allocate funds and what services to cut back or eliminate have become increasingly difficult and impassioned. One area that is often mistakenly categorized as a “non-essential function” is the continued upkeep and oversight of dams and levees. At first glance, this may seem like the appropriate place to cut funds, as these structures are generally stable for many years. But the consequences of failing to maintain a dam or levee are almost always catastrophic and can bring significant media coverage as well as litigation that can carry on for years. This has been highlighted recently as some areas of the country are battling unpredictable weather and entities are struggling to keep their levees from being overtopped, which can destroy the structure and result in loss of life, crops and property damage to the local community. So the reality is that the responsibility for maintaining a dam, levee or bridge is non-negotiable for entities, in good times or bad.

POTENTIAL ENERGY, POTENTIAL DAMAGE A dam or levee is a structure or barrier designed to hold back water. While you may picture a dam like the Hoover Dam, containing a large body of water, it does not need to be actively holding back water to be classified as a dam or levee. It can be dry most of the time and only used during wet conditions or wet years. Most states have a state dam safety department that determines the specific requirements for a structure to qualify as a dam, as well as the basic responsibilities of a dam’s owner. The water that is held behind a dam or levee is considered “potential energy” and, if not managed properly, the intended or unintended release of that energy can cause enormous damage and possibly loss of life. This damage may be an entity’s responsibility if it owns the structure and is responsible for maintenance.

LOST IN THE SHUFFLE Often, government entities acquired the responsibility for maintenance and upkeep of dams and levees many years ago when the structure was originally built. As a result, it is not uncommon for these structures, over time, to fall off the proverbial radar for oversight and maintenance, especially after a change in departmental oversight and/ or several successive budget cuts. Generally, there is no specific manager or oversight mechanism in place, or the maintenance obligations are lost among the multitude of other municipal responsibilities that are no longer viewed as top priority. Beware if this describes your entity’s current situation. The consequences of not maintaining a dam or levee can be brutal, with media coverage and/or litigation for potentially millions of dollars in damages as a result of the structure’s failure. This type of litigation can potentially carry on for years and, in some instances, decades before it is finally resolved. And after any litigation is resolved, there are still the additional costs of reconstructing the dam or levee. In the case of the Missouri levee collapse in April, it has been reported that since the levee had previously been identified as ‘unacceptable’ in an Army Corps of Engineers survey, and the owners did nothing to upgrade the levee, they are now ineligible for FEMA low-interest disaster loans to rebuild.

A dam or levee is a structure or barrier designed to hold back water. While you may picture a dam like the Hoover Dam, containing a large body of water, it does not need to be actively holding back water to be classified as a dam or levee. It can be dry most of the time and only used during wet conditions or wet years.

RECOMMENDED MAINTENANCE All too often, this situation is repeated and entities do not follow up on recommendations made by the state dam safety inspectors, which are often very specific and may suffice as a form of “notice” to the entity that there is a problem that needs to be fixed. The result is the appearance of an irresponsible entity actively resisting maintenance

AUGUST 2011 | PUBLIC RISK

Delayed Maintenance to Dams and Levees Can Breach Your Budget

CALENDAR OF EVENTS The Public Risk Management Association (PRIMA) hosts or sponsors a wide variety of educational programs for public risk practitioners. These meetings and events provide an optimum forum for public risk professionals to acquire new knowledge or skills, exchange ideas and expand peer networks. PRIMA’s calendar of events is current at time of publication. For the most up-to-date schedule, visit www.primacentral.org.

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until forced to do so. This exposes the entity to potential claims of negligent management oversight in litigation. To avoid this situation, entities should be aware of the most common maintenance issues recommended by state dam safety inspectors and those that often have a direct impact on the liability discussion. These include, but are not limited to: • Removal of trees growing in the earthen dam or levee. Water can flow along the roots, which may lead to seepage, then water flow and a breach.

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• Removal and repair of damage caused by burrowing animals. Burrowing animals can weaken the structure and provide an internal water corridor, which can cause a sudden breach.

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• Maintenance of water level control valves and equipment. Staff should regularly check this equipment to ensure they can open gates to let water out in times of flooding.

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• Repair of erosion damage. If the upstream or downstream sides have been eroded, they need to be repaired to comply with regulations. • Updates of emergency response plans and operating instructions. Personnel in each entity should review and update their emergency response plans and instructions at a regularly scheduled interval.

AN ACTION PLAN FOR PUBLIC ENTITY RISK MANAGERS Beyond the maintenance tips mentioned, there are other actions that risk managers or other responsible parties in public entities should take.

PUBLIC RISK | AUGUST 2011

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• Ask questions about ownership of all dams and levees in your jurisdiction. It can sometimes take a while to establish clear ownership details and maintenance responsibilities but it is necessary to know this. Contractual obligations are real and can change the discussion from ‘Can we cut this out?’ to ‘We can’t afford to cut this out.’ • Be proactive by assigning responsibility for oversight and establishing an annual self-evaluation of the structure using state dam safety guidelines for basic maintenance. These evaluations (not engineering evaluations) should be performed prior to statemandated inspections and should make sure the basic maintenance items have been addressed. By being proactive, the unintended release of dammed-up water will likely be averted and good documentation will exist to show that efforts were in place to maintain the structures as originally intended. The entity will likely also be eligible for FEMA disaster funds if the storm event does cause substantial damage to the dam/levee structure in spite of your best efforts. There are certain situations where delayed maintenance on certain facilities may make sense, but postponing maintenance on dams or levees can end up breaching your budget for several years. Taking a proactive approach with a logical action plan can save your entity, and your citizens, some heartache and potentially a river of money. Kenny Smith is a risk control specialist for OneBeacon Government Risks.

AUGUST 2011 | PUBLIC RISK

PUBLIC RISK MANAGEMENT ASSOCIATION

YOUR

RISK MANAGEMENT JOURNEY BEGINS HERE

Are you taking advantage of all that PRIMA has to offer? Professional Development

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• PRIMA Annual Conference • Online education opportunities including PRIMA’s Webinar Series and the industry’s only Associate in Risk Management and Risk Management for Public Entities online tutorials.

• Leadership Opportunities: Get Involved! Join a committee, task force or even become a director on PRIMA’s board and provide input in what PRIMA does and how we do it. • PRIMA Chapters: Make contacts on your local level, share what you know, and learn from experts and innovators in meetings, workshops, and seminars in your area. • Online Membership Directory: A members-only resource where you can locate and contact PRIMA members in various risk management fields.

Information Resources • PRIMA Cybrary • PRIMA Job Bank • PRIMAtalk: Member-only listserv that provides access to more than 500 industry specialists. • RiskWatch: Weekly e-news service for public risk managers

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For more information on any of PRIMA’s member benefits, visit our Web site: www.primacentral.org. 18

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Has your entity launched a successful program? An innovative solution to a common problem? A money-saving idea that kept a program underbudget? Each month, Public Risk features articles from practitioners like you. Share your successes with your colleagues by writing for Public Risk magazine! For more information, or to submit an article, contact Jennifer Ackerman at jackerman@primacentral.org or 703.253.1267.

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AUGUST 2011 | PUBLIC RISK

Member Spotlight

PWC CREATES PROGRAM TO HELP DRIVERS BACK INTO ZERO Each month, Public Risk features a member who has gone above and beyond in a feature column titled “Member Spotlight.” Do you know someone who deserves recognition, has made a contribution or excelled in their profession? If so, we’d like to hear from you for this exciting column, as PRIMA shines the spotlight on its members. To be considered for the Member Spotlight column, contact Jennifer Ackerman at jackerman@primacentral.org or 703.253.1267.

ometimes the most common driver errors are also the most preventable. The risk management division of Prince William County (Va.) decided to tackle one of the most common driver problems they saw—backing collisions—by creating a two-pronged program called Back into Zero. “Though the majority of collisions occur while vehicles are moving forward, about 30 percent of all incidents occur when vehicles are moving in reverse,” said Lori Gray, risk management division chief. “These high-frequency, low-severity collisions are nearly always preventable.” Prince William County (PWC) fell right in line with the national statistics. In fiscal year 2008, 30 percent of PWC’s preventable collisions were due to improper backing, resulting in more than $31,000 worth of damage. The program that Gray’s division developed consists of an employee pledge component as well as a training component. The training was both computer-based and hands-on. “The pledge component was simple,” said Gray. “The pledge was managed online, using an electronic pledge form. A random drawing was held at the end of the five-week program and prizes were awarded to the participants. Additionally, the database approach facilitated the instantaneous ability to report on a department-level basis all employees who made the pledge.” PWC also offered employees a contracted, online Smith System: Five Keys to Safe Driving/Small Vehicle Backing course that they could take at their desk.

PUBLIC RISK | AUGUST 2011

The risk management division also created its own Safe Backing Skills Clinic. The six skills clinics were held over five weeks, with the help of a police department driving instructor. “The clinics were set up in a stadium parking lot and fleet vehicles were used for the training,” said Gray. “We designed life-size animal and children signboards to be used in blind zone demonstrations. They proved to be a more dramatic visual aid than standard traffic cones.” During the 48 months leading up to the program, the county’s two-month backing collision average was seven incidents. The number of backing incidents in the two-month period spanning the Back into Zero program was only two. “This represented an immediate 71 percent reduction, simply by creating focus, raising awareness and providing training,” said Gray. “Motor vehicle crashes continue to be a leading cause of death for government employees and 90 percent of all motor vehicle crashes are attributable, at least in part, to driver behaviors. Management has a major responsibility to make the workforce aware of their safety measures and stress those areas where there is an elevated risk of loss.” PWC’s Back into Zero program is easily adapted for use by other organizations. For more information on Back into Zero, contact Lori Gray at lgray@pwcgov.org.

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