Public Risk February 2012

Published by the Public Risk Management Association

www.primacentral.org

FEBRUARY 2012

WORDS MATTER:

CRISIS COMMUNICATIONS and the VALUE of PREPAREDNESS WIRELESS RF RADIATION AND ITS FINANCIAL EXPOSURE TO PUBLIC ENTITIES REALISTIC SUPERVISION OF TECHNOLOGY AND SOCIAL MEDIA IN THE PUBLIC WORKPLACE

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Volume 28, No. 2 | February 2012 | www.primacentral.org

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

PRESIDENT Cindy B. Mallett, AIC, CWCP, ARM-P Risk Manager City of Gainesville Gainesville, GA

CONTENTS

PAST PRESIDENT Laura Peterson, JD, MPA Director of Risk and Insurance University of Wyoming Laramie, WY PRESIDENT-ELECT Dan Hurley, CSP, ARM-P, MS Senior Director, Risk Management & Safety Norfolk Public Schools Norfolk, VA

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DIRECTORS Ed Beecher Risk Manager City of Pompano Beach Pompano Beach, FL Betty Coulter Director of Risk Management and Insurance University of North Carolina at Charlotte Charlotte, NC

6 Words Matter: CRISIS COMMUNICATIONS AND THE VALUE OF PREPAREDNESS

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

By Chris Lukach, APR

Marilyn Rivers, CPCU, ARM, AIC Director of Risk and Safety City of Saratoga Springs Saratoga Springs, NY

11 WIRELESS RF RADIATION AND ITS FINANCIAL EXPOSURE TO PUBLIC ENTITIES

Regan Rychetsky, ABCP Director, HHS Enterprise Risk Management and Safety Texas Health and Human Services Commission Austin, TX

By Richard J. Burnheimer

Linda Spacek, CPM, CGBA Interim Director, Human Resources City of San Marcos San Marcos, TX

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By Charles Leitch and Thomas Hutton

EXECUTIVE DIRECTOR Marshall W. Davies, Ph.D. EDITOR Jennifer Ackerman, CAE Deputy Executive Director 703.253.1267 • jackerman@primacentral.org ADVERTISING Donna Stigler 888.814.0022 • donna@ahi-services.com

Public Risk 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

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

Copyright 2012 Public Risk Management Association Reprints: Contact the Reprint Outsource at 717.394.7350.

FEBRUARY 2012 | PUBLIC RISK

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PRIMA 2012

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Message from PRIMA President Cindy B. Mallett

HAS YOUR CRISIS COMMUNICATIONS PLAN BEEN PUT TO THE TEST?

L

ast week, a friend and fellow public risk manager relayed a recent experience in his organization.

It was an ordinary day, business as usual, when an employee answered what must have been a haunting telephone call. The caller stated, very calmly: “There is a bomb in the building. You have fifteen seconds… fourteen… thirteen…”

I think my heart skipped a beat just hearing this story. I can only imagine the terror that employee must have felt, the indecision and the urgency that those words must have created. No matter how sophisticated an organization’s emergency planning efforts, no matter how thoroughly its employees have been trained, a test like this must surely create upheaval.

How would that call have been handled by an employee in my organization? I would like to say that I know exactly what would have resulted, but I can’t be certain. Frankly, I’m not even sure how well I would have handled that call myself, with the caller literally counting down seconds on the other end of the line. How would I have responded?

How, and what, would I have communicated to others in my organization?

The call that was received in my colleague’s organization was a very cruel hoax, and thankfully there was no real danger. That doesn’t mean, though, that the fear and confusion were any less impactful. In response, his entity took the time and made the effort to strengthen its crisis

communications plan and to conduct additional employee training. I’m inspired to do the same for my organization.

Bomb threats. Fires. Workplace violence. Natural disasters.

There are so many crisis situations that can be faced by a public entity. The risk manager can play a key role in emergency preparedness, helping to position the entity to navigate through a crisis. The article on page six of this issue of Public Risk provides helpful information on this very subject, and highlights the importance of communicating during a crisis.

If you need more information on this topic, be sure to participate in PRIMA’s second Webinar of 2012, scheduled for March 21. The Webinar, titled “The Risk Manager’s Role in Disaster Recovery,” is free to members. It’s sure to provide useful tools you can put to use in your organization.

Crisis situations can happen at any time, often without warning. Are you ready?

Sincerely,

Bomb threats. Fires.

Workplace violence.

Natural disasters.

There are so many crisis situations that can be faced by a public entity.

The risk manager can play a key role in emergency preparedness, helping to position the entity to navigate through a crisis.

Cindy B. Mallett, AIC, CWCP, ARM-P 2011–2012 PRIMA President Risk Manager City of Gainesville, Ga.

FEBRUARY 2012 | PUBLIC RISK

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News Briefs

NEWS

BRIEFS FEDERAL IMMIGRATION ENFORCEMENT IS MANDATORY, MEMO SAYS Two years after the Secure Communities immigration enforcement program was implemented, federal officials determined that choices available to local law enforcement agencies that wished to decline or limit their participation would be “streamlined” or “eliminated,” making the information-sharing program mandatory, according to a memo recently made public.

Launched in 2008, Secure Communities was promoted to local and state leaders as a way to focus immigration enforcement efforts on “serious convicted criminals.” But the program, which involves the FBI sharing fingerprints collected from county jails with U.S. Immigration and Customs Enforcement, has come under fire because a large percentage of immigrants caught up in the system were never convicted of a crime or were low-level offenders, reports the Los Angeles Times.

Federal officials initially said there were ways for state and local officials to drop out of the program. This assertion was repeated by Homeland Security Secretary Janet Napolitano and Assistant Attorney General Ronald Welch.

Three states sought to opt out of or suspend participation in Secure Communities, and last August the Department of Homeland Security told governors that the fingerprint-sharing program did not need their approval to operate and that it was voiding agreements signed to authorize their states’ participation.

The action was denounced by some political leaders, immigration advocacy groups and other opponents of the program.

Several state officials complained that they were misled or lied to.

UNIVERSITY OF MARYLAND PLANS $7.2 MILLION PRESIDENT’S HOUSE AMID BUDGET CUTS Construction crews are poised to demolish the president’s house at the University of Maryland and to pour the foundation for a new 14,000-square-foot on-campus mansion that carries a $7.2 million price tag, reports The Washington Post.

But some question why the school would build such an elaborate house at a time when the flagship university is asking donors to support students who might drop out because they can’t afford tuition. And construction will begin just weeks after President Wallace D. Loh announced that he will cut eight varsity sports teams in June to save an estimated $29 million over the next eight years.

University leaders say the school has a dire need for the new facility, which is designed to woo supporters and attract major donations at a time when state funds make up less and less of the overall budget. They say the bill will be picked up by about 30 private donors — not students or taxpayers—and will pay huge dividends. It also will replace a building plagued with problems.

The university will continue to pay for general upkeep and utilities for the mansion, which will be more than twice the size of the current home and will have dedicated entertaining spaces.

Staci Armezzani, director of communications for the student government, said even student leaders did not know the new house was in the works.

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FEDERAL JUDGE VOIDS TWO NEW IDAHO ANTI-UNION LAWS A federal judge has invalidated both of the new anti-union laws pushed through by Idaho GOP lawmakers last session, saying they violate federal law, reports The Spokesman-Review.

The two measures, SB 1007 and 1006, both expansions of Idaho’s Right-to-Work law, sought to ban “job targeting programs” that use union dues to subsidize members’ wages as a way to help contractors win bids, and to ban “project labor agreements” through which contractors sign agreements with unionized workers while bidding on public works projects.

The measures were pushed amid legislative grousing over loud picketing at some Idaho projects by the Carpenters Union, but they didn’t address picketing.

“We fought pretty hard on this,” said John Littel, regional political director for the Carpenters Union. “We were pretty surprised about how much momentum there was to really, I think, try to take a bite out of the unions, and specifically the carpenters.”

U.S. District Judge Lynn Winmill, who in July issued an injunction to block SB 1007 from taking effect, granted summary judgment motions in late December from the Idaho Building and Construction Trades Council and the Southwest Idaho Building and Construction Trades Council, both AFL-CIO, to invalidate both laws.

The state raised several procedural issues, which the judge rejected, and the Inland Pacific Chapter of Associated Builders and Contractors (ABC) and the National Right to Work Legal Foundation both filed briefs in support of the new laws.

The ABC already has filed notice of an appeal to the 9th Circuit U.S. Court of Appeals, saying it should have been allowed to intervene as a full party in the case.

The judge said the various programs targeted by the bills weren’t, as the ABC argued, “a form of compulsory unionism.” Wrote Winmill, “Nothing about a job targeting program…makes union membership compulsory. Because Idaho is a rightto-work state, membership in any local in Idaho is entirely voluntary.”

CHECKING UP ON HEALTH INSURANCE EXCHANGES Jan. 1, 2014, may seem like a long time from now, but as states scramble to establish health insurance exchanges mandated by the Patient Protection and Affordable Care Act (PPACA), that date constantly is on their minds.

Governing.com reports the National Conference of State Legislatures (NCSL) released an update on how much progress states have made in setting up their exchanges. Some have thrown up their hands and said that they choose to let the federal government run their exchange. Some, despite their involvement in a lawsuit to block the federal healthcare reform law, are still moving forward with implementation. And others are politically supportive of the law and are currently developing their exchanges.

According to NCSL’s analysis, 30 states and the District of Columbia have enacted an executive order or legislation that lays the groundwork for developing an exchange. Most other states have at least formed a task force to explore options. And 28 states plus D.C. have received Level I establishment grants from the U.S. Department of Health and Human Services (HHS) to implement their plans. Eleven of those states are participating in the 26-state lawsuit that alleges the PPACA is unconstitutional. Alaska has pledged to form its exchange without federal funding. Arkansas and Louisiana have opted for a federally run exchange.

Joy Wilson, health policy director at NCSL, told Governing that the process of developing exchanges is defined by unanswered questions: Has HHS released enough information to create an exchange? What if the Supreme Court finds the PPACA unconstitutional? What would an exchange governing board look like? How will the exchanges be funded after federal money expires?

“Everything is a gamble,” Wilson said. When the PPACA passed in 2009, the 2014 deadline “seemed eons away,” she added. “But upon reflection, it’s an aggressive timetable.”

To be ready for Jan. 1, 2014, state exchanges must be certified by Jan. 1, 2013, by HHS, although the department has indicated that states, if they choose, could gradually transition from a federally run exchange to a state-operated model at a later date. With a little over a year before certification begins, the states seem divided about how the federal government has handled its role in helping states to develop their exchanges.

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WORDS MATTER:

CRISIS COMMUNICATIONS and the VALUE of PREPAREDNESS

By Chris Lukach, APR

“Unconditional support”—a simple, two-word phrase that may be the runaway recipient of 2011’s “Most Famous Last Words” prize.

Faced with allegations that members of his administration had covered up accusations of sexual abuse, Penn State University President Graham Spanier issued a statement that, among other things, expressed “unconditional support” for the two administrators. Did he really mean to imply that his support for his executives overshadowed the protection of children?

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We may never know what was in Spanier’s brain when his team issued this statement, or if they were even “his” words. But the careless inclusion did much more than he ever could have intended. With his statement, the university’s highest ranking administrator fueled a perception that highest priority in combating the crisis was protecting the university’s own reputation.

It fed the widespread perception of impropriety, and may ultimately have contributed to Spanier’s downfall.

No matter what ultimately may happen to the Penn State officials in the court of law, these simple words dealt a serious blow to the university’s battle in the court of public opinion. The university will be combating this perception in virtually every aspect of its operation for months, if not years, to come.

Most organizations will not face a crisis of Sandusky-esque proportions. But many will experience crises or serious issues of other kinds: fire, flood or other natural disasters; malfeasance or criminal activity on the part of an employee; injuries or deaths; even unfounded rumors that have the potential to damage an organization’s reputation—and, thereby, inhibit its ability to operate or cripple its financial security.

In every crisis, words matter; the first words often matter the most. Arguably, the most important component of responding to crises is the initial response, which establishes the tone of your organization’s response all the way through its ultimate resolution.

Preparing statements in advance is just one component of crisis communications planning, a process that is too often overlooked or ignored and usually lacks sufficient investment from the organization.

CRISIS COMMUNICATIONS AND PUBLIC RISK MANAGEMENT Because the practice of public relations relies on the often intangible link between reputation and bottom line, communicating a hard-dollar return-on-investment for preparedness is a persistent challenge. How do you quantify the value of proper communications? How do you assign a dollar-figure loss to insufficient communications?

Increasingly, incidents such as Penn State (and myriad high-profile crises before it) demonstrate and prove just how important an initial response and consistent communications with key audiences has become.

Improper initial communications affect the credibility

of your leadership (and, in turn, their ability to lead), can stimulate new lawsuits and legal challenges, and can ultimately alienate your advocates and the communities you serve.

Accordingly, the risk management and crisis communications functions are proving to be inseparable. From the perspective of a crisis communicator, successful incident communications cannot exist without collaboration between these functions; at the same time, intelligent communications can lighten the load of the risk managers and the legal counsel.

CRISIS COMMUNICATIONS IN TODAY’S MEDIA CLIMATE Another reason why crisis communications demands a seat at the emergency response table is the rapidly changing, near-instantaneous media climate. In recent years, the communications climate has been forever and irreparably changed by both the demands of the 24-hour news cycle and the rise of social media. This change has manifested itself in two ways: First, the speed with which a thoughtful response to crises is needed. Just 10 years ago, crisis communications preparedness plans that my company prepared for clients guided the communications response through the first few hours; 5 years ago, the first two to four hours; today, the first hour, if not the first 15 minutes. Why? The 24-hour news cycle and social media demand faster-than-ever responses. And if your organization isn’t prepared to establish a tone, someone else will do it for you: employees, antagonists, or the media itself. Nature abhors a vacuum.

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Crisis Communications and the Value of Preparedness

Successful crisis preparedness requires a commitment from the highest levels of the organization, stressing that the investment of time and resources has merit and value.

At the same time, social media has become the great equalizer. Everyone with access to the Internet—including your entity—is given equal opportunity and position, and rumors and information spread at the speed of megabytes per second. This means that for your organization to be properly represented, you must be among the first to speak and do so with thoughtful, safe messaging. Without proper investment in crisis preparedness, the non-planned first statement is risky and challenging.

GETTING STARTED There is a communications saying that applies to all organizations: “A crisis may be unexpected, but it should never come as a surprise.”

Does your organization have a crisis communications plan that complements your organizational crisis response plan? Do you review it and update it annually? Are the key people in your organization prepared to respond to social media rumors, or if the media call asking about the major problem that just surfaced? (You know which one I’m talking about—the one that keeps you awake at night, worrying!)

If you answer “yes” to those questions, “bravo!” If not, here are six helpful steps to get you started on crisis communications planning.

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➊ Outline all of your key audiences. When crises strike, we tend to focus on interacting with the media, but many other audiences actually may have a greater impact your ability to operate or your bottom line. Those audiences include your staff, community members, social media commentators, and so many more. List steps that can be taken to build trust among these audiences even before a critical event occurs. ➋ Identify every conceivable kind of crisis. If you currently have an operational crisis plan, use the scenarios covered in the operational plan as a jumping off point. Your list may turn out to be 100+ scenarios or far fewer; every organization is unique. Determine who within your organization will be the official spokespersons and how they will respond to the media and other key audiences should any of these incidents occur. ➌ Develop key messages and talking points for each potential incident. Key messages force you to address situations from a positive standpoint, rather than a negative and defensive standpoint. “Sticking to your messages” also limits the risk of gaffes or “off-the-cuff” remarks, such as “unconditional support.” ➍ Working with your organization’s legal team, develop a pre-approved list of the statements and information you can provide to the media, bypassing the need to clear every word while the crisis is actually underway. ➎ Audit and understand your organization’s social media resources. Are you confident that, should a crisis strike, someone on the emergency response team will have the access and know-how to put social media to work for you? If not, now is the time to get your organization in that position.

In the realm of public risk management, social media should be assessed not only for its risks and

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vulnerabilities, but for its benefits. In virtually every public disaster of late—floods, earthquakes, hurricanes—local governments and nonprofits have harnessed the power and accessibility of social media to coordinate disaster relief efforts and direct volunteer resources.

As we advise our clients: The day the crisis strikes is not the day to learn how to use Twitter. Invest in creating and populating your social media channels, and build an audience. Important messages can spread instantly with even the smallest group of advocates and supporters already plugged into your organization. ➏ During disaster or crisis training drills, be sure to include a communications component involving media and other key audiences. Drills are essential. Once you have a plan, you must try it out to see what works as intended and change what doesn’t. Drills also are the perfect

opportunity for designated spokespersons to practice and sharpen response skills.

Because these steps touch on a number of functions within your organization, putting them into action requires a broader commitment than just that of risk managers and communicators. Successful crisis preparedness requires a commitment from the highest levels of the organization, stressing that the investment of time and resources has merit and value.

Perhaps supporting the preparedness function can be the most effective form of “unconditional support” your administrators can offer.

Christopher Lukach, APR, is senior vice president and chief operating officer of Anne Klein Communications Group, LLC, a public relations consultancy specializing in issue and crisis preparedness and response.

Go Online and Get Out of the Classroom!

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Prepare for these exams with the Public Risk Management Association's online tutorials—proven beneficial tools in the studying process. Upon purchase, you have 365 days of studying time. The tutorials fit your individual schedule, whether you are at work, at home, or on travel; they are available 24/7.

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PRIMAtalk is the easiest way to get an answer to your risk management-related questions as well as exchange ideas and information. This forum gives members quick feedback on issues that are important to risk managers and their work.

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WIRELESS RF RADIATION and its Financial Exposure to Public Entities

By Richard J. Burnheimer

Our nation’s favorite form of communication depends on radio-frequency radiation-producing wireless antennas. The popularity of this technology is obvious to the end-user with the abundance of smart phones, laptops, tablets and other devices in use today. However, what is not apparent to most are the massive networks of wireless antennas that tether all of us together instantly.

The RF radiation produced from just one of these wireless antennas can be several hundred times that of a cell phone, and is recognized by science and the federal government as being harmful to humans. By the very ubiquitous nature of wireless antennas, workers are routinely compelled to work in front of, and in close proximity to these devices.

State and local government’s financial liability on this issue emanates from their multiple roles as FCC licensee, site owner, site operator, lessor, lessee, employer, employer of third-party contractors/subcontractors and their employees. In conjunction, every wireless antenna affixed to a governmental asset, either owned by public entities or others, has the potential to create liability.

Often, public entities fail to associate the intricacies of wireless communications with human RF radiation over-exposure and its potentially catastrophic financial consequences. This issue most often falls under the category of “out of sight, out of mind,” and most likely will be ignored until the trial lawyers become involved. At that point, it will be too late for public entities to avoid long-term litigation and substantial monetary losses.

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Wireless RF Radiation and its Financial Exposure to Public Entities

PRIMARY RF SAFETY STANDARDS AFFECTING PUBLIC ENTITIES AND OTHERS FCC—As a condition for obtaining and maintaining a license to transmit, FCC licensees must certify that they will not expose persons above the FCC RF human exposure limits.

[47 CFR 1.1307(b), 1.1310] OSHA—General Duty Clause provides that employers (including property owners) must provide a workplace free of recognized hazards, which may cause serious harm. [29 USC 654, Section 5(a)(1)]

THE RAPID GROWTH OF WIRELESS At the inception of the wireless industry, only a limited number of antenna systems existed across our nation. These antennas were mainly located along freeway corridors within major metro areas. Most often, they were perched atop poles surrounded by locked fencing and access was only granted to RF-trained technicians. Today, wireless antennas are everywhere—on rooftops, the sides of buildings, utility poles, light standards and hidden entirely within the structures of buildings.

In the early 1990s, there were less than 25,000 commercial wireless antenna systems across the United States. Today, there are more than 600,000 in governmental and commercial use, and this number is projected to exceed 1 million in the not-too-distant future.

RECOGNIZED HEALTH AND SAFETY HAZARD Decades of research dating back to 1960 determined that excessive exposure to RF radiation is hazardous to human health.

The present IEEE exposure guidelines that have been adopted by the FCC have a lineage that extends for nearly half a century.

In sum, the IEEE/ANSI consensus standards adopted by the FCC are based on long-standing, uncontroverted science that has clearly demonstrated that RF radiation exposure causes “behavioral disruption,” which includes reduced brain function and memory loss in laboratory subjects. In other words, science proves the causal link between RF radiation exposure and behavioral, cognitive and/or psychological injuries, including depression, memory loss, mood disorders, sleep disorders and impaired cognitive function.

CURRENT INABILITY TO PROTECT ALL WORKERS Public entity and third-party workers are exposed to excessive levels of RF radiation because no effective,

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comprehensive RF radiation safety system is currently in operation. The following are examples of practical challenges to protect workers from RF radiation: • The impossibility or impracticality of FCC licensees (governmental and commercial), building/site owners and contractors to have continuous (24/7) knowledge and control of all activities at antenna sites; • Mandated use of “stealth” antennas that prevent workers from identifying the existence and location of RF radiation hazards at work sites; • Mandated collocation of RF radiation transmitting antennas result in increased aggregate RF radiation emissions; • No unifying and verifiable RF power-down/off system exists; • Locks, fences and restricted access may protect physical assets from theft and vandalism, but they do not protect workers who will enter these areas to fulfill their job responsibilities; • Warning signs have been proven ineffective as they are often missing, mislabeled or misunderstood by workers; • No national protocol exists to supply workers with real-time, site-specific RF radiation safety information;

CELL PHONE VS. WIRELESS ANTENNA LITIGATION There is no real comparison. Cell phone litigation was based upon the assertion the phones’ RF emissions cause brain cancer. Science has yet to produce reliable and relevant evidence of the causal link between cell phone use and brain cancer. In contrast, science has established the causal link between wireless antenna RF over-exposure and psychological and cognitive injuries. This science is long-standing, uncontroverted and not the subject of dispute.

Successful defense of cell phone litigation was based upon the fact the FCC RF maximum permissible exposure (MPE) for the devices was not exceeded. In contrast,

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litigation from wireless antenna exposure will easily prove that FCC RF exposure limits are exceeded thousands of times across our nation each day in violation of the law.

EXAMPLES OF STATE AND LOCAL GOVERNMENTS’ FINANCIAL EXPOSURE BY RF RADIATION As Operators of Governmental Wireless Antenna Facilities Although a thorough analysis of the myriad legal theories that could be asserted in litigation will be left to legal counsel, such counsel may consider “negligence per se.” Negligence per se is the legal doctrine whereby an act is considered negligent because it violates a statute or regulation. In order to prove negligence per se, the plaintiff must show that (1) the defendant violated the statute or regulation, (2) the statute or regulation is a safety statute, (3) the act or failure to act caused the kind of harm the statute was designed to prevent, and (4) the plaintiff was within the zone of risk. Once negligence per se is established, the plaintiff will prevail provided that the action or inaction of the defendant is the “cause” of the plaintiff’s injuries. The FCC RF radiation human exposure limits create a basis upon which liability can be easily established.

As Property Owners Hosting Wireless Antenna Systems Most state and local governments own, operate and manage real property that host wireless antenna systems. As a result, they may be liable on a theory of premises liability. Generally stated, premises liability imposes a responsibility upon landowners (or possessors of land) for the care and safety of others upon their property. The landowner must not only warn the invitee of conditions which may exist and cause harm, but also protect him against those dangers of that the invitee “knows, or has reason to know, where it may reasonably be expected that he will fail to protect himself notwithstanding his knowledge.”

As Contractors of Third-Party Workers State and local governments routinely “outsource” work that may be performed near transmitting antennas to third-party contractors and subcontractors. State and local governments would be liable to injured individuals on a host of legal theories including premises liability, negligence, negligence per se and respondent superior. Public entities owe a duty of care to third-party workers that it contracts with and are exposed to the same liabilities for a failure to meet that standard of care.

ADA OPENS PANDORA’S BOX FOR RF LITIGATION The Americans with Disabilities Act (ADA) is a complaint-driven law. Although DOJ and EEOC may initiate investigations, the vast majority of complaints are generated by individuals with disabilities, their families or disability-rights organizations who file lawsuits directly in federal and state courts. Unlike other federal regulations, ADA does not have an “inspection” mechanism similar to OSHA. The ADA relies on entities to comply with the requirements proactively or pay the consequences in litigation.

The Americans with Disabilities Act was recently amended and the new regulations issued by the EEOC are now in effect. The amendments and regulations are significant for two reasons. The first is that minor and episodic diseases will now be covered, including depression. The second, and more significant change, is that the burden of proof will now rest on the employer to prove that the litigating employee does not have the claimed disability, a near impossibility, much like proving a negative.

Expansion of the definition of a disability to include depression is hugely important for worker RF-exposure litigation because scientific research has established a causal link between cognitive injuries such as depression and RF radiation over-exposure.

CALENDAR OF EVENTS PRIMA’s calendar of events is current at time of publication. For the most up-to-date schedule, visit www.primacentral.org.

WEBINARS 2012 • March 21: The Risk Manager’s Role in Disaster Recovery • May 16: Practical Issues Related to Litigation and Investigation • July 18: Concussion Education and Management in the Student-Athlete • September 19: TBD • November 17: Generational Differences in the Workplace (session presented by Genesis Management and Insurance Services Corporation) PRIMA ANNUAL CONFERENCES June 3–6, 2012 PRIMA 2012 Annual Conference Nashville, TN Opryland Hotel June 2–5, 2013 PRIMA 2013 Annual Conference Tampa, FL Tampa Convention Center June 8–11, 2014 PRIMA 2014 Annual Conference Long Beach, CA Long Beach Convention Center June 7–10, 2015 PRIMA 2015 Annual Conference Houston, TX George R. Brown Convention Center UPCOMING CHAPTER MEETINGS Chapter meetings are listed on a space-available basis. For a complete list of PRIMA chapter meetings, visit www.primacentral.org. For information on a specific meeting, please contact the chapter directly.

Arizona Connecticut

Kansas

Minnesota

Michigan

Missouri South Carolina

March 16 March 14 February 17 March 8 March 22 February 24 March 4–6

To have your chapter meeting listed on the PRIMA Website, contact Bles Dones at bdones@primacentral.org.

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Wireless RF Radiation and its Financial Exposure to Public Entities

First and foremost, education is crucial.

Everyone at risk should be taught the exposure regulations and hazards associated with radiofrequency emissions… A national, accessible registry of wireless antenna systems that identifies location and exposure zones throughout North America is being created and will significantly reduce the financial liability of all stakeholders.

When the plaintiffs’ bar finally realizes the difference between cell phone and cell site RF injuries, the preceding examples of litigation will manifest along with ADA claims.

Those who have ever been near a wireless antenna may suddenly claim depression or other cognitive injuries.

RF RADIATION MAY BECOME THE NEXT ASBESTOS Unfortunately, the plaintiffs’ bar is always in search of the “next asbestos” and the issue of worker over-exposure to RF radiation has been identified by many within the insurance and reinsurance industry to be just that. All it will take is a television ad campaign to educate workers on the very subjective symptoms of RF radiation over-exposure, and the plaintiffs’ bar will have successfully tapped into a new and rich vein—the wireless ecosystem.

The “wireless ecosystem” should not be confused with the smaller commercial wireless providers. The wireless ecosystem encompasses all FCC licensees (federal, state, local, and commercial), public entities, insurers, reinsurers, site owners, property managers, contractors, municipal and third party workers, the utility industry, hospitals, school districts, universities, church organizations, REITs and

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PUBLIC RISK | FEBRUARY 2012

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others. In totality, it involves every person or entity that may be physically or financially harmed by RF radiation.

NEXT STEPS Workers who are required to perform their jobs in close proximity to radiofrequency radiation transmitters are no longer just trained industry technicians protected by the latest gear and equipment. Rather, they are now roofers, electricians, carpenters, maintenance personnel, HVAC technicians, painters, first-responders and many others.

Ultimately, these unsuspecting workers are regularly exposed to excessive levels of RF radiation because there is no comprehensive radiation safety system currently in operation and given the health hazards and potential liabilities involved, the time for complacency and neglect to the safety of workers has passed. A viable radiofrequency safety program must be implemented.

First and foremost, education is crucial. Everyone at risk should be taught the exposure regulations and hazards associated with radiofrequency emissions. Workers must be given site-specific safety plans that combine with an updated database of antenna locations to establish a standardized national radiofrequency safety protocol that includes the participation of all required stakeholders (i.e., FCC licensees, property owners hosting antenna sites, employers, local governments and the workers themselves). A national, accessible registry of wireless antenna systems that identifies location and exposure zones throughout North America is being created and will significantly reduce the financial liability of all stakeholders. The registry will be similar to the “Call 811 before you dig” underground utility locator service and constitute an electronic repository of documentary evidence of use and compliance with radiofrequency safety.

For this to occur, the pubic entities must also demand the deployment of a meaningful loss-control tool to continue to protect their employees, their contractors’ employees and their own financial interests. Public entities should not be lulled into a false sense of security by the momentary dearth of claims and lawsuits brought on behalf of workers seeking compensation. The risk is here, it is imminent and unless a loss-control tool is implemented to protect them, an inevitable tidal wave of litigation with significant financial consequences is assured.

Richard J. Burnheimer is the EVP of Risk Management and EH&S for RF CHECK, Inc., a wireless technology company has globally patented a multiple-layered RF safety system to protect against physical and financial harm from RF radiation.

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JUNE 3–6, 2012 • NASHVILLE, TENNESSEE Register Today!

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At the 2012 Annual Conference, you will have more than 55 educational sessions in eight tracks, including benefits and human resources, pooling, enterprise risk management and workers’ compensation. These topics will cover the latest trends and changes that will affect all risk managers sooner or later. In, addition, this conference will feature late-breaking hot topics that capture the latest dynamics occurring within our profession. Find out how your peers are addressing these challenges today!

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REALISTIC SUPERVISION OF TECHNOLOGY AND SOCIAL MEDIA

IN THE PUBLIC WORKPLACE

By Charles Leitch and Thomas Hutton

As we enter 2012, the use of telecommunications technology and social media by Americans continues to explode and become more sophisticated. According to the Pew Internet and American Life Project, 78 percent of American adults, both men and women, use the Internet. Of these: • 67 percent visit local, state or federal government Web sites; • 65 percent use a social networking site like Facebook; • 32 percent post comments to an online news group, Web site, blog, or photo site; • 28 percent use video-sharing sites such as YouTube.

In addition: • Over half of Americans aged 12 and over have a Facebook account; • 83 percent of U.S. adults own some kind of cell phone; • 35 percent own a smartphone.

In a 2011 Pew Center survey of technology experts, 71 percent predicted that in the next decade “cloud computing,” where users perform activities through servers operated by outside firms, will become more dominant than the desktop computer.

Naturally, this changed world is changing the workplace.

The digitization of information and communication has blurred the line between the professional and the personal, between the private and the public. This poses many new risk management challenges for all employers, but public agencies face their own unique set of legal complications.

For public employers, many of these can be grouped into two broad categories: privacy and freedom of expression.

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PRIVACY As government entities, public employers are constrained by the Fourth Amendment when they conduct investigations, searches or seizures of information. In a technology environment where the personal overlaps with the professional, what reasonable expectation of privacy does an employee have in online information? A few examples highlight some of the current legal issues: In 2010, the U.S. Supreme Court considered a lawsuit by a California law enforcement officer who claimed his privacy was invaded when his employer accessed personal text messages he had sent using his employer-issued pager.

The search was part of the employer’s attempt to control the costs of such non-work usage. In City of Ontario v. Quon, the Court assumed for the sake of argument that the officer did have a reasonable Fourth Amendment expectation of privacy in his text messages. But it ruled narrowly under the facts of this case that the employer’s search was reasonable in purpose and scope.

In addition to Fourth Amendment considerations, the federal Stored Communications Act (SCA) makes it an offense to access electronic communication intentionally, without the user’s authorization, while the information is in electronic storage in a facility through which an electronic communication service is provided. Think cloud computing. In fact, the officer in the Quon case brought an SCA claim as well, and this claim was successful in the lower courts and was not appealed to the Supreme Court. The SCA applied because the text messages had been stored by the city’s third-party pager service. Some states have similar privacy laws.

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A private employer in New Jersey discovered another way to run afoul of these electronic privacy statutes in 2009 when it obtained access to a private MySpace site created by its employees to “vent” about the workplace. Managers asked the employee who had told them about the site for her login information and later fired her colleagues who had organized the site. The jury in Pietrylo v. Hillstone Restaurant Group d/b/a Houston’s found that a reasonable employee would have felt coerced by the employer to turn over her login information, so that in accessing the site the employer violated the SCA and New Jersey’s equivalent state law.

colleagues—concern the terms and conditions of employment and so are protected by the National Labor Relations Act. State collective bargaining laws for public employees may be interpreted similarly.

The City of Bozeman, Mont., provoked another privacy uproar in 2009 when it required job applicants to disclose what social networking sites they belonged to and submit the login information for each so that even pages set for “private” viewing could be reviewed. The city said it wanted to ensure employees were of the “highest moral character.”

After a local backlash that went “viral” online, the city backed down from the requirement.

The State of Missouri experienced this last year when it adopted legislation to prohibit teachers from social networking with students where the communications are not transparent to any third set of eyes. The state acted in response to the online “grooming” that frequently is used by teachers who commit sexual misconduct with students. But when a state teachers union sued the state and got a temporary injunction blocking the law as a potential First Amendment violation, the state repealed the rule and left it to school districts to develop local social networking policies.

FREEDOM OF EXPRESSION Public employers who may have concerns about what employees are writing and saying online must be as aware of the First Amendment as they are of the Fourth. Questions related to employee freedom of expression on social networking sites have been especially noteworthy in recent months.

According to a 2009 report by Nucleus Research, 77 percent of workers had a Facebook account. Of these, nearly 61 percent accessed Facebook at work. And of these, 87 percent had no business reason for doing so. The report estimated that employee productivity drops nearly 1.5 percent when employees have full access to Facebook at work.

Another 2009 study by Robert Half Technology found that 54 percent of U.S companies banned employees from using social media on the job, while 19 percent allowed social networking only for business purposes. At the same time, a 2010 Cisco study found that 50 percent of employees ignored company policies banning social media access. And, perhaps highlighting generational differences about technology, more than half of young professionals said they would not work for a company that bans social media in the workplace.

The National Labor Relations Board (NLRB) attracted attention in 2011 by filing complaints against private sector employers who take action against employees for online disparagement of their workplace or supervisors.

In an August 2011 report on such cases, the NLRB made clear that these online discussions among employees—for example, a Facebook posting that is replied to by

In some circumstances, the line between personal and professional online expression may be so fuzzy—and the potential consequences so serious in light of the agency’s mission or its clientele—that the employer may be justified in adopting a more restrictive social networking policy. But even here, the agency must be prepared to handle controversy and, if necessary, legal action.

WHAT IS THE FOURTH AMENDMENT? The Fourth Amendment protects a person from an unreasonable search or seizure by the government when that person has a reasonable expectation of privacy.

To determine whether a search was reasonable, a court will consider the purpose of the search, the degree of suspicion the agency had to conduct it, and how the scope of the search related to that suspicion and to the person’s expectation of privacy.

PRACTICAL OPTIONS FOR PUBLIC EMPLOYERS In deciding the Quon case on such narrow grounds, the Supreme Court expressed reluctance to issue a broad ruling in the rapidly evolving area of technology in the workplace.

This judicial restraint makes a lot of sense, but it doesn’t provide much guidance on these important issues. Still, there are plenty of sensible steps public employers can take.

Here are some to consider: • Initial policy review: The agency’s first order of business should be to review its current policies and practices to try to make sure employees have somewhere to turn for guidance on tricky questions and aren’t left entirely on their own to improvise their way through these legal complexities.

• Technology-use audit: At the same time, an “audit” of employee and customer use of agency technology resources can help managers better understand both the potential of technology to help the agency fulfill its mission as well as issues that need addressing. The audit should be designed by IT staff and legal counsel.

It can utilize data from the agency’s IT system and surveys or focus groups. Its scope can go beyond use of the agency’s IT system to ask employees and customers about their use of their own personal technology.

And it can try to get a sense of the current level of “cyber-awareness.”

FEBRUARY 2012 | PUBLIC RISK

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Realistic Supervision of Technology and Social Media in the Public Workplace • Acceptable use policy: The agency should set ground rules for responsible use of the agency’s IT system and make sure all users know them. The agency could require users to acknowledge the policy up front, for example, by periodically signing an acknowledgment form or by checking an online acknowledgment in order to access the system.

According to a 2009 report by Nucleus Research, 77 percent of workers had a Facebook account.

Of these, nearly 61 percent accessed Facebook at work.

And of these, 87 percent had no business reason for doing so. The report estimated that employee productivity drops nearly 1.5 percent when employees have full access to Facebook at work.

• Social media policy: The agency should consider under what circumstances it wants to establish expectations for employee use of social networking and online expression that may impact the agency. It should avoid overreaching, but it can set rules for use of social networking on the job and the expectation that employees communicating online on their personal time make clear that they are speaking privately and not in their role as a public employee. A stricter approach may be justified where there are special concerns about unsupervised communications with vulnerable agency clients such as children, but this should be done with legal counsel.

• Policy on investigations and searches: Users of the agency’s IT system should be put on notice that their use is subject to review and should acknowledge that they have no expectation of privacy when using equipment owned by the public. The agency should work with legal counsel to develop procedures for searches of employee-generated data, especially if it may be stored outside the system.

• Policy on online background checks: If the employer researches job applicants online—and a 2009 survey of HR personnel by Cross-Tab Marketing Services found that 70 percent had rejected candidates based on online information—it should keep the person making the hiring decision from having access to any information which the employer would be prohibited from asking the applicant, for example about pregnancy.

A different employee could be responsible for “Googling” the applicant, with instructions about what kind of information to relay to the decision-maker and what information to omit.

• Public records compliance: As records have gone digital and been stored on all manner of equipment, it has taken some agencies time to catch up to the reality that a public record is a public record, regardless of its form. Agency policy should make clear that electronic files, including e-mail messages, are public records, which the agency could be required to produce if asked.

Depending on state law, this even could include personal, non-work-related messages created and sent using the

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agency network, and it probably includes work-related information on home computers and personal devices.

Similarly, state records management and archiving requirements generally apply to electronic files. The agency also must be prepared to comply with court electronic discovery rules, which among other things require an agency to be prepared to halt the destruction of any digital records that may be relevant to a reasonably likely legal dispute.

• Security and privacy: The flip side of the obligation to disclose public records is the challenge of preserving the privacy of any protected information in those records. The answers here are partly technological, and IT staff should be up to speed on security measures.

But the challenge also is a matter of procedure and employee awareness.

• Cloud computing: As this practice becomes more prevalent, agencies need to consider the issues presented by storing data remotely. These include things like security, privacy and public records compliance, but for risk managers there also may be implications for loss coverage and jurisdictional questions.

• Training: Training will be needed to make sure policies are understood and implemented. The training should go beyond just explaining the rules. It should help raise awareness about the technology and the reasons behind the rules.

• Ongoing review: Technological advances, and the social changes that accompany them, outpace our laws and policies. To keep up with the latest trends, policies and practices on technology should be reviewed and updated frequently.

As both warning and explanation, every agency policy, practice and training should have as one of its goals to raise awareness among staff and customers about two hard realities. First, almost nothing on the Internet is truly private. And second, almost nothing on the Internet is truly temporary.

As basic as these points are—and as many times as we may have heard the warnings before—it only takes one look at the headlines to see how the message still hasn’t gotten through to everyone.

Charles Leitch and Thomas Hutton represent a range of public entity clients at the Pacific Northwest law firm of Patterson Buchanan Fobes Leitch and Kalzer, Inc., P.S.

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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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Member Spotlight

CITY OF HILLSBORO “NOTICES” DEPARTMENTAL SAFETY 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.

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ccording to Tami Cockeram, ARM, it is has always been a difficult undertaking to develop a safety recognition program that doesn’t eventually evolve into, or become thought of as an incentive program.

“We have learned over the years that incentives, regardless of the size, become an incentive to under-report, not report, or get grief from coworkers for reporting,” said Cockeram, risk manager for the City of Hillsboro, Ore. “Although management has good intentions to recognize cultural shifts that lead to safe work practices, the results can be detrimental to the safety program from the start.”

safety committees and acknowledge the completed projects and how these projects have enhanced workplace safety. The event also promotes cross-departmental communication, which is part of the city’s strategic plan.

In response, the City of Hillsboro’s risk management team—Michael Sorensen, Tanya Woodson and Jan Lindley—developed a program that allows for recognition and appreciation without compromising workplace safety.

The program recognizes good intentions and not results.

The program has been in place for the last four years.

The field crews not only appreciate the cool treat, but it provides risk management with an opportunity to thank them for the work they do, and “remind them of the importance of hydration, frequent breaks in the shade and slowing down when working in extreme heat”, said Michael Sorensen, safety and risk officer.

The yearly program begins each January with an annual appreciation certificate. All departments receive a certificate from risk management recognizing their commitment to workplace safety. This certificate is not based on the number of accidents or injuries, but rather acknowledges that safety plays an important role and is part of the departmental culture.

Finally, as the last piece of the City of Hillsboro’s safety appreciation program, the risk management department uses a system called “We Noticed!” The program has no other criteria besides “we noticed” something extraordinary that has to do with workplace safety, said Cockeram.

Next, the risk management department hosts a June safety committee BBQ at a city-owned park.

“As we all know, it can be difficult to get employees to participate on safety committees,” said Tanya Woodson, risk management specialist. “We have discovered over the past four years that committee members appreciate the opportunity to be recognized and thanked for going above and beyond their regular job.”

Cockeram says the BBQ is an opportunity for risk management to convey the importance of departmental

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In July and August, Cockeram’s department visits the city’s field crews with popsicles and water. “As the temperature begins to rise, we are thankful for the air conditioned buildings available to us. Unfortunately, our crews don’t have that luxury and are unable to escape the heat,” she said.

“It could be that the department or individual is instrumental in identifying a safety hazard and coming up with a solution that then becomes standard city practice,” Cockeram said. “‘We Noticed’ recognition doesn’t happen often, but when it does. . . .WE NOTICE. So does the department.”

Since the inception of the city’s safety recognition program, workers’ compensation claims have dropped 33 percent.

For more information on the City of Hillsboro’s safety recognition program, contact Tami Cockeram at tamic@ci.hillsboro.or.us.

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