Public Risk November/December 2012 by Moire Marketing Partners

Published by the Public Risk Management Association

www.primacentral.org

NOV/DEC 2011

MAKING GENERATIONAL DIFFERENCES WORK FOR YOU EMERGING TRENDS IN LAW ENFORCEMENT LIABILITY KEY DEVELOPMENTS IN PUBLIC EMPLOYMENT LAW

JUNE 3–6, 2012 • NASHVILLE, TENNESSEE Registration opens in January!

Volume 27, No. 10 | Nov/Dec 2011 | 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

6 MAKING GENERATIONAL DIFFERENCES WORK FOR YOU

By Abe Kane, CPCU, and Lauren Oliver

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

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

By Dennis Molenaar

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

15 KEY DEVELOPMENTS IN PUBLIC EMPLOYMENT LAW

Betty Coulter Risk Management Director City of Asheville Asheville, NC

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

10 EMERGING TRENDS IN LAW ENFORCEMENT LIABILITY

DIRECTORS Ed Beecher Risk Manager City of Pompano Beach Pompano Beach, FL

EXECUTIVE DIRECTOR Marshall W. Davies, Ph.D.

By Duncan Fobes and Thomas Hutton

EDITOR Jennifer Ackerman, CAE Director, Communications 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

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. POSTMASTER: Send address changes to PRIMA, 700 S. Washington St., #218, Alexandria, VA 22314.

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

NOVEMBER/DECEMBER 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

Networking

• 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

AND MUCH MORE!!!!

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

Message from PRIMA President Cindy B. Mallett

CHANGE IS GOOD

ublic sector risk managers, like the entities they serve, come in (figuratively) all shapes and sizes. Our skill sets are diverse and our strengths often represent particular areas of interest or, in many cases, the special needs of our employers. Our positions might fall (almost) anywhere within our organizational charts, in departments such as human resources, legal, finance or administrative services (that’s mine!), or we might report directly to the CEO. Despite all these variables, there is one constant in risk management – change. (Risk management is certainly never boring!) To date, the biggest change in my career was being asked to manage human resources in addition to risk management. Since then, life at work has been challenging, exhilarating and sometimes terrifying. From GINA to FLSA, from the EEOC to the “new” ADA, there are many areas to master. Be sure to check out this month’s article on employment law to learn about recent developments in this ever-evolving area of risk. Another article you’ll discover on page 10 describes some of the newest challenges facing law enforcement agencies. Across the country, law enforcement has been impacted by today’s slowed economy—impacting staffing levels, increasing stress and potentially creating an environment ripe for claims. Risk managers can help their law enforcement communities stay informed about—and prepared for—emerging areas of risk. No discussion on change is complete without mentioning technology. Today’s young adults can’t imagine living in a world without cell phones, television-on-demand or instant (handheld!) access to the Internet. Not very many years

ago, however, telephones had cords, encyclopedias resided on bookshelves and “google” wasn’t even a word. Technological change has been rapid and far-reaching. The recent advances in technology have groomed us to want, even expect, immediate access to information. PRIMA is working to provide you that access. Are you looking for a policy, RFP or other risk management document? The PRIMA Cybrary, an extensive online document library, is available to you 24 hours a day, 7 days a week, and you can access it from anywhere. Did you miss a Webinar? You can purchase streaming audio or a CD, so you can catch up via your home or work computer. Did you know that PRIMA has a Facebook page? Become a fan for updates on PRIMA activities and other news of interest. In what other ways can PRIMA use technology to improve its offerings to our members? If you have ideas, I invite you to contact me or any member of PRIMA’s board of directors. Your opinions are valued and will help prepare PRIMA for the future. Happy reading! Sincerely,

Despite all these variables, there is one constant in risk management – change. (Risk management is certainly never boring!) To date, the biggest change in my career was being asked to manage human resources in addition to risk management. Since then, life at work has been challenging, exhilarating and

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

sometimes terrifying.

NOVEMBER/DECEMBER 2011 | PUBLIC RISK

News Briefs

NEWS

BRIEFS MICHIGAN TOWN GOES DARK DUE TO UNPAID UTILITY BILL Most of Highland Park’s street lights have been repossessed because officials failed to pay a multimillion-dollar utility bill, giving rise to concerns about safety and crime in darkened neighborhoods, reports The Detroit News. DTE Energy crews have removed about 1,400 light poles from Highland Park as part of a settlement that allowed the city to avoid paying $4 million in unpaid bills going back several years. DTE has replaced 200 lights with newer models on street corners, but most neighborhoods remain in the dark. Highland Park, plagued by financial trouble, was able to reduce its monthly utility bill from $62,000 to $15,000, an amount officials say fits the city’s budget. But residents and business owners complain that the resulting darkness is like a welcome mat for criminals. “After they took the street light from in front of my business, someone climbed onto my roof and stole an air conditioning unit,” said Bobby Hargrove, owner of Hargrove Machinery Sales on Oakland Avenue, who also claims a police officer asked him for money to beef up his protection. “I feel like I’m being punished—I’ve always paid my bills on time, but they took the street light anyway.” Highland Park Mayor Hubert Yopp insists that crime has not increased since the lights were removed. “I had the police chief work up the crime stats, and found that most of our burglaries are taking place during the daylight hours,” Yopp said. But resident Robert Davis, secretary of the city’s school board, said three schools were broken into at night, right after the street lights were removed. “Thankfully, DTE agreed to put new lights in front of the schools, although they’re not all up yet,” he said. DTE spokesperson Len Singer said Highland Park is “a unique situation.” “We did everything we could to try to help the city come to a level of service they could manage,” Singer said. “We wanted to work with the city to maintain some level of service, and do so in a way that would allow the city to cover the bill each month. They simply weren’t able to maintain the costs for having all the previous lights.”

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FEDS REQUIRE MILWAUKEE TO PROVIDE BALLOTS, VOTING RULES IN SPANISH

NEW PENSION ACCOUNTING RULES ROLL OUT

For the first time, the federal government will require that the City of Milwaukee provide ballots and other voting information in Spanish in future elections because of the growth in the number of predominantly Spanish-speaking residents in the city, reports Milwaukee’s Journal-Sentinel.

They’re cut, dried and dense. Accounting rules are something only a bean counter could love. But they can also repaint the landscape of municipal finance. That’s likely to be the case with new pension accounting rules spelled out by the Governmental Accounting Standards Board (GASB) in an exposure draft released this summer. The rules are expected to become final next year, reports Governing.com columnist Girard Miller.

Although it’s been a requirement in other cities and counties based on the percentage of Spanish-speaking population, this is the first time that any jurisdiction in Wisconsin has fallen under such a requirement, Reid Magney, the public information officer for the state Government Accountability Board, said. The U.S. Census Bureau, citing the Voting Rights Act, announced the new requirement Wednesday. According to the Census Bureau, the act requires that a state or political subdivision provide language assistance for voting when members of a single language minority group with limited English proficiency constitutes more than 5 percent of the voting-age population or 10,000 voting-age citizens. The law applies when the local proportion of those citizens who have not completed fifth grade surpasses the national average. The Census Bureau uses a formula to determine when cities and counties meet that threshold, said Catherine M. McCully, chief of the census redistricting data office in Washington, D.C. “There are changes and Wisconsin has never been covered before, so this is new,” she said. “But it doesn’t mean Milwaukee wasn’t close last time.” Magney said, “We’ve recognized the likelihood of the possibility of this happening based on the census and the changing demographics in the city of Milwaukee.”

Under them, pension liabilities will have to be displayed on the balance sheet and the “true cost” of pension benefits must be reported in the operating statement—even if the employer fails to make the necessary annual contributions. That true cost will be higher than most employers now pay. There are other implications—some helpful, some challenging. Labor negotiators will benefit from increased transparency. They will finally have a better way to show the impact of promised benefits and the fiscal consequences of future proposed benefit increases. As to the challenges, the amortization of unfunded liabilities will be accelerated, which will result in higher actuarially calculated employer contributions. Translation: Accumulated pension debt must be repaid faster under the new standards, resulting in even-higher pension costs. Budget officers will need to prepare for this in their 2013–2014 fiscal year budgets. Some states and large municipalities with $1 billion pension plans will have to address these changes as early as next summer. The rules are not yet set in stone. After they complete public hearings, GASB may do some tweaking of how they calculate such technical aspects as the discount rate for valuing future liabilities on today’s books and how employers amortize certain expenses. But there is little doubt that employers’ financial statements are going to change, with greater emphasis on visibility. Footnote disclosures will also be far more comprehensive and transparent, with more-revealing facts for investors and citizens.

Magney said it’s his understanding that the order includes the entire city of Milwaukee. Under the new requirement, all election materials and notices, posters at polling places and ballots will have to be in Spanish in addition to being in English, he said. It’s unclear whether each polling place also will be required to have an election inspector who is fluent in Spanish, Magney said.

NOVEMBER/DECEMBER 2011 | PUBLIC RISK

MAKING GENERATIONAL DIFFERENCES

WORK FOR YOU

By Abe Kane, CPCU, and Lauren Oliver

For the first time in history, four generations are represented in the workplace at once. On the surface, this presents a significant challenge as miscommunication and conflict across these generations can negatively affect productivity, morale and even increase turnover. If managed incorrectly, the survival of your division, department or entity’s long-term viability may be in question. With this challenge comes a tremendous opportunity. If managed correctly, the diversity of viewpoints represented by the four generations can lay the groundwork for a dynamic and rewarding work experience for all. However, in order to take advantage of this opportunity, one needs to spend some time learning a bit more about what drives each of these groups. The four generations in the workplace include the following:1

GENERATION

BIRTH YEARS

AGES AS OF 2011

Traditionalists

1920–1945

66–83

Boomer

1946–1960

51–65

Generation X (Gen X)

1961–1979

32–50

Generation Y (Gen Y) or Millennial

1980–1995

14–31

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TRADITIONALIST SHARED EXPERIENCES • The Great Depression • New Deal • WWII & Korean War • Booming post-war economy • Growth of suburbs • Increased availability of consumer goods • The rise of labor unions • Social Security

Each generation has a set of shared experiences. These experiences have shaped many of the thoughts, behaviors and values the generations bring with them into the work environment. (Sidebars 1-4 outline the defining moments each generation has shared.)

they going to learn that they just need to pay their dues and start assimilating into our culture?” Well, if you’re waiting on the answers to those two questions you might end up waiting a long time and missing an excellent opportunity in the process.

While these experiences effect many aspects of the work environment, this article will focus on two areas in which an understanding of generational differences can lead to improved performance and team dynamics: giving feedback to employees and providing them with effective training.

FEEDBACK Providing feedback through an annual review is a process with which many people struggle. As a manager, not only is it difficult to find the words for valid criticisms, but now we must also think about how the differences between generations may impact the review process. You are a Boomer managing a Gen Y associate. You provide feedback to the associate that they are doing well in the job, but that they need to start to the see the big picture on projects and work on their own. Also, others in the office have mentioned that the employee often leaves early, You remind the associate that the standard hours for a municipal employee are 8:30 a.m. to 4:30 p.m. and that you would like to see them keep to more of a traditional schedule. You believe the review was wellreceived and are excited to have the review completed. The phone rings the next day and it is the associate’s mother complaining about the review of her child. How do you handle this?

Your first response might be, “Wow! How am I supposed to work with someone who thinks so differently than I do and would bring their mother into the discussion? When are

In the example, the first issue we encounter is that the review is part of a formal annual review process. Gen Y, or as they often refer to themselves, Millennials, have a desire for constant feedback and frequently struggle under the once-a-year review approach. Millennials also view feedback as a form of coaching as opposed to a critique. They’re often stressed out and sometimes even non-responsive to negative criticism. They take constructive criticism as a suggestion as opposed to an order. Some suggestions include, offering frequent feedback instead of yearly reviews, communicating with the employee more often and emphasizing the business reasons behind your suggestions. Don’t become offended if they do not take all of your suggestions and when something is a directive, make sure that you are clear that it is not optional. The second issue raised in this example is “standard” work hours. This is an instance where the values of Millennials and Gen Xers clash with those of their Boomer bosses. The younger generations do not want to spend their entire lives working. Gen Xers are sensitive to this, as they were the first latch-key kids. Millennials view work as just one of their many gigs. Using output-based goals as opposed to time-based ones for these generations can be very effective and in situations where this is not possible, try establishing group norms and explaining why the schedule they may view as “restrictive” is necessary. The issue of parent involvement in the work relationship is one that we are just beginning to see develop. In some cases, parents have gone as far as to show up at a job interview

BOOMERS SHARED EXPERIENCES • McCarthy Hearings • Television, Elvis and rock & roll • Kennedy presidency • Civil Rights Movement • Kennedy (John, Bobby) & King Assassinations • Vietnam War • Woodstock, “free love,” & birth control • Moon landing • Women’s rights movement • Credit cards XERS SHARED EXPERIENCES • Tripling divorce rate • “Latch-key kids” • Video games, cable TV & MTV • Corporate downsizing • Women entering the workforce • Era of “Greed is Good” • CNN and electronic games • AIDS • Challenger explosion • Persian Gulf War MILLENNIALS SHARED EXPERIENCES • Terrorism: 9/11, WTC, Oklahoma City • “Girls” Movement • Technology & information driven • Google, Web references, & text messages • Pro-child culture • Clinton/Lewinsky scandal • Corporate and political corruption as a way of life • Millennials are known to consume 31 hours of media within a 24-hour period • School violence

NOVEMBER/DECEMBER 2011 | PUBLIC RISK

Making Generational Differences Work for You

ADDITIONAL GENERATIONAL SUGGESTIONS TO CONSIDER  Use Boomers (not Xers) as mentors for Millennials.  Traditionalists and boomers require the most training with technology. Technology training can increase both their comfort with the new technology as well as their productivity.  Loyalty to an individual is the #1 reason younger generations will remain in a job and dissatisfaction with their boss is the #1 reason they will quit.  Xers and Millennials preferences vary widely when it comes to working in groups or as parts of a team. Millennials often thrive in these situations, while Xers usually prefer to divide the work concentrating on the parts assigned to them by the group. This article discusses the four generations currently inhabiting the workplace. Generational studies are generalizations and this article approaches them as such. The information in this article is based on American influences. 1

Demographers differ on the exact dates (sometimes by several years) and individuals who were born on the extremes often exhibit many of the traits of the generation that precedes or follows them. 2

with their Millennial children and while the trend is disconcerting to some, it highlights the powerful role that parents have in the lives of many Millennials and is a trend that is likely to accelerate. No generation has had as much positive attention focused on them as this one. Millennials view parents as their friends and consistently involve them in decision-making. Instead of being turned off or mortified at the parent calling and asking about the review, engage them and have the parent become your advocate. Chances are you will see the changes you requested in the employee. While our first example focuses on communicating with Millennials, understanding the preferred communication methods of other generations is also important. Members of Gen X also prefer to receive feedback often throughout the year. They place a high value on understanding how their work fits into the entity’s mission and their review and the feedback they expect is just not part of the “process.” Xers tend to trust and bond with exceptional bosses and are often reluctant to trust organizations or institutions. Gen Xers will want to know how this review will give them access to other career paths and options, as they prefer flexibility in their careers as opposed to putting all of their eggs in one basket. When providing feedback to a Boomer, we need to evaluate what Boomers value in the workplace. First, they tend not to be nearly as hungry as the younger generations for feedback and are often happy with a quarterly or even annual review schedule. Competition is a big driver for them; throughout their careers they have had to compete to obtain and then hold onto each position they have achieved. Action plans work well for Boomers, specifically ones to improve skills or change behavior. This translates to showing them how to get a leg up on the competition. Boomers also have a greater appreciation for public feedback than do the younger generations, whether through titles and status or a workplace that celebrates their success. Although Traditionalists may remain in the workplace due to economic need, many still value the recognition they receive and often most importantly the feeling of being part of a team. When providing feedback to a Traditionalist, expressing appreciation for their efforts and acknowledging that they have the best interests of

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the organization at heart go a long way. Articulate how making a few changes in their behavior will increase the value of the organization and you will usually find a willing ally.

TRAINING Training is another area where an awareness of generational differences can allow you to more effectively convey your message and increase the chance that your target audience is receptive to it. You’ve been trying to think of new ways to energize and motivate your team and have developed a new training session to do so. Your concern, however, is that in the past training efforts have fallen somewhat flat. It feels as if you are continually repeating the same information and yet the group doesn’t appear to retain anything. What can you do to get your message across to your group that consists of members from all four generations?

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.

The first thing you might consider is breaking up the training, tailoring it to your group or audience and presenting it to them in separate groups. The training methods preferred by each generation vary widely and by focusing your message, you are likely to have greater success. If this is not an option, then at least keeping the following preferences in mind can help keep you from losing the attention of a portion of your group.

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

Traditionalists like to show up early for presentations and can handle long lecture formats. They will show respect for the person presenting (authority figures) right away and will respond well to case studies.

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Boomers like to use the coffee breaks and lunch breaks as a way to network and be social with other employees. They prefer to train in small groups in order to show off their skills and gain recognition from their peers. Boomers often respond best when there is an element of competition.

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For Gen Xers, they may view training as a complete waste of time. Case studies should be directly on point and given to individuals, instead of team training. If you are presenting in front of a group of Xers, you should be prepared to earn their respect before you have their attention. Xers do not take kindly to presenters who do not stick with the planned agenda and start/end time.

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For Millennials, it is important to capture their attention and keep them from multi-tasking and texting. They prefer the team-training concept. Activities where they can get up and out of their seat and use different skills are helpful.

WEBINARS 2011

June 3–6, 2012 PRIMA 2012 Annual Conference Nashville, TN Opryland Hotel

June 8–11, 2014 PRIMA 2014 Annual Conference Long Beach, CA Long Beach Convention Center

These are just a few of the items to consider when providing feedback to an employee or planning for your next training session. While there is no perfect solution, it is important to address the different values each generation brings to the workplace. The challenge is yours to make these differences work for you.

UPCOMING CHAPTER MEETINGS

Abe Kane, CPCU, is a senior underwriter for the Public Entity Division for Genesis Management and Insurance Services Corporation.

Arizona Colorado Kansas North Carolina Washington

Lauren Oliver is a second vice president for the Public Entity Division for Genesis Management and Insurance Services Corporation and serves as a facilitator and as an Effective Intelligence instructor.

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. Dec. 9, 2011 Nov. 17, 2011 and Dec. 8, 2011 Nov. 18, 2011 Jan. 20, 2012 Dec. 15, 2011

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

NOVEMBER/DECEMBER 2011 | PUBLIC RISK

EMERGING TRENDS IN

LAW ENFORCEMENT LIABILITY

By Dennis Molenaar

Like many organizations across the country, law enforcement agencies are facing tough economic times, resulting in budget cuts and staff reductions. However, in spite of fewer resources, law enforcement services are increasingly in demand, which puts additional strain on departments. Whatâ€™s more, they must stay abreast of, understand and utilize the latest developments in their field along with emerging social trends. High-speed police pursuits, the use of Tasers, DNA testing and the popularity of social media are just a few recent hot law enforcement topics that have garnered media attention and been the focus of some high profile claims.

POLICE PURSUITS Police pursuits have always generated a large number of claims, either by the individuals being pursued, or the officers or bystanders injured during the chase. According to the Fatal Accident Reporting System, approximately 350-to-400 deaths occur annually in the U.S. due to police pursuits, with approximately one-third of those deaths being innocent bystanders. Additionally, 75 to 80 percent of pursuits end with an arrest, primarily of repeat traffic violators. Perhaps the most important key to managing litigation claims involving pursuits is having effective, up-to-date pursuit policies that define the limits to the duration, travel speeds and type of pursuit. Too often these policies are not reviewed or updated, or are missing important pieces. For example, many policies do not include the use of a supervisor or third person not directly involved in the pursuit, to help make decisions and share accountability for the situation. A supervisor should ask some important questions such as: Why are we pursuing? Is the pursuit aligned with

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Minimizing a police department’s Taser liability requires having up-to-date policies that clearly define the level of force that should be utilized. All officers should be well-versed in this policy and trained on when—and how—a Taser is to be used, including a thorough review of Taser-use by the command staff to ensure proper usage following department policies.

our guidelines? Is the situation becoming too dangerous? The ability to see the situation objectively and call off the pursuit if it becomes too dangerous or does not follow policies is essential. Another key element sometimes missing from pursuit policies is the delineation between emergency-response driving and pursuit driving. Juries are swayed by these delineations and can be more tolerant of officers involved in accidents while responding to a serious emergency call—such as a choking baby, a gun threat or an officer who needs assistance—versus those chasing a traffic violator or other minor offender.

USING TASERS In the realm of new technology comes the Taser, an innovative tool that has already proven effective by reducing injuries to officers and individuals taken into police custody. Although only a small number of Taser-use cases result in claims against police agencies, they tend to generate widespread publicity. Minimizing a police department’s Taser liability requires having up-to-date policies that clearly define the level of force that should be utilized. All officers should be well-versed in this policy and trained on when—and how—a Taser is to be used, including a thorough review of Taser-use by the command staff to ensure proper usage following department policies. To assist in this review process, it is recommended that a “Use of Force” report, or similar documentation, be required whenever Taser force is used. Although many police administrators may see this as extra paperwork, an accurate account and review of Taser incidents is of great value to defense attorneys, who may be called to defend a claim of excessive force. It also provides valuable information as to the deterrent effect of Tasers on non-compliant offenders.

While Taser programs have been well-documented to reduce police officer injury, an officer’s safety is always paramount. Officers should be well-trained regarding when to use a Taser versus when a firearm is more appropriate to protect themselves and others.

DNA TESTING Another emerging issue in law enforcement involves the more sophisticated use of DNA and forensic testing to expose cases of false imprisonment. There has been considerable media attention around cases where DNA testing has exonerated individuals convicted of major crimes and who have already served several years in prison. These cases opened law enforcement to media scrutiny and expose departments to new claims and liability. There have been several awards and settlements, as high as $100 million, in states where defendants have sued. Such lawsuits are not always driven by a failure to conduct DNA testing at the time of the crime, but rather from police or prosecutor misconduct including: • • • •

Withholding evidence; Tainted line-ups; Destroying evidence; and Prosecutors failing to disclose material evidence that would exonerate.

Agencies are being held accountable when it is determined that conviction rested on evidence that was altered or tainted by law enforcement officials, or instances of prosecutorial misconduct in withholding evidence or other prosecutor misconduct. These cases should be carefully followed and studied by law enforcement and risk management staff to ensure they are protecting their department’s interests and following proper procedures in the future.

NOVEMBER/DECEMBER 2011 | PUBLIC RISK

Emerging Trends in Law Enforcement Liability

SOCIAL MEDIA

These latest trends in law enforcement liability highlight common key actionable tactics that agencies can pursue to protect

Social media offers alternative options for law enforcement agencies to take control of communication and messaging, When law enforcement agencies can deploy a press release to the general public via Twitter or Facebook, there is a shift away from dependence on traditional media. Additionally, many law enforcement organizations are using the Internet as an investigative tool. For example, the Ten Point Coalition in Boston is using Facebook to see which gang members are still alive, by asking them to keep their

status line updated as a way of checking in. Creatively using these community discussion resources enable law enforcement to get involved with the tools favored by members of the local community.

TRANSLATING TRENDS TO BENEFITS These latest trends in law enforcement liability highlight common key actionable tactics that agencies can pursue to protect against liability. Namely, developing updated policies and ensuring officers are well-versed, trained and comply with the content of the policy; creating accurate documentation and reports; and finally, implementing additional supervision tactics around key issues such as high-speed pursuits and Taser use, when necessary. Today, however, law enforcement officials will be challenged to implement these tactics while maintaining community services and balancing economic pressures. But if emerging trends are carefully considered—and these tactics successfully implemented—agencies will substantially enhance their level of protection against potential liability claims. Dennis Molenaar is vice president, risk control, with OneBeacon Government Risks.

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against liability.

What business isn’t affected by social media? Law enforcement agencies are no exception; the use and influence of social media has grown tremendously in recent years and it is becoming increasingly important for police departments to understand its implications. For example, social media can be used as a tool by police to inform the local community, solicit information and meet investigative goals. Conversely, it can also be a channel for inappropriately displaying evidence or to highlighting the mishandling of evidence. And social media posts spread quickly, or can even go viral, to the benefit—or detriment—of the police department.

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To see whether a risk poses a threat, don’t we have to see the big picture?

The future is like an iceberg. Most of the time what we can see before our eyes is only half the story. So how do we know the unknowable? Only those with relentless drive, expertise and foresight can see the whole picture — the risk that lies beyond. At Munich Re, seeing more is what we do. We work in interdisciplinary teams, each pair of eyes viewing something from a different perspective, all focusing on the best solution. With our worldwide network we can pinpoint complex global patterns when they arise. When it comes to grasping our future, we are never satisﬁed with half the story. To ﬁnd out what lies beyond, visit our U.S. website at www.munichreamerica.com NOT IF, BUT HOW

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I’m a PRIMAtalker. R U? If you are a PRIMA member and you are not signed up for PRIMAtalk, you are missing out on one of PRIMA’s most popular member benefits! PRIMAtalk is PRIMA’s member-only listserv that puts more than 500 industry specialists at your fingertips. 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.

For more information or to join PRIMAtalk, visit www.primacentral.org.

KEY DEVELOPMENTS IN

PUBLIC EMPLOYMENT LAW

By Duncan Fobes and Thomas Hutton

As the Great Recession exacts its financial toll on our public institutions, public employees may experience an increase in workloads, pressures and job insecurity. This can heighten the risk of legal disputes in the public workplace. These disputes already were on the rise before the recession. Consider these data on workplace discrimination charges filed with the U.S. Equal Employment Opportunity Commission (EEOC) from fiscal year 2000 through fiscal year 2010: • • • •

Sex discrimination charges up 15%; Age discrimination charges up 45%; Disability discrimination charges up 59%; Retaliation charges under Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination on the basis of race, color, religion, sex or national origin, up 57%; • Overall retaliation charges up 68%; and • 201 genetic discrimination charges filed during the first year federal protections, discussed below, were in effect. Discrimination claims are not the only ones employers face and these statistics are just one indicator of the state of employment litigation. But they paint a compelling picture and many of the more significant recent legal developments in employment law relate to discrimination. These key developments and the others highlighted briefly in this article happened at the “30,000-foot level”—at the U.S. Supreme Court or in Congress. But they are likely to play out at the local level in some public agency near you.

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Key Developments in Public Employment Law

In considering background checks, public agencies should bear in mind that privacy concerns are heightened in this age of electronic information… That said, under the right circumstances, agencies can ask intrusive questions and they can ask them of employees who already have been checked previously. The steps an agency takes to protect the privacy of the information collected are crucial.

BACKGROUND CHECKS

ORAL COMPLAINTS

Public agencies, especially those dealing with safety, security, children or other vulnerable populations, may be more likely than other employers to do background checks on prospective employees. In its most recent term, the U.S. Supreme Court considered whether background checks can go too far.

Some legal obligations of employers are triggered only when the employer is on notice that an employee has a complaint. In Kasten v. Saint-Gobain Performance Plastics Corp., 131 S.Ct. 1325 (2011), the Supreme Court considered whether an employee can “file” a Fair Labor Standards Act (FLSA) complaint just by complaining verbally, without ever filing anything in writing.

The issue in NASA v. Nelson, 131 S.Ct. 746 (2011), was whether the space agency’s open-ended questions about applicants’ past drug use and drug treatment were too invasive to ask of longtime federal contract employees serving in relatively low-risk positions. In January 2011, the Court ruled that even if the employees did have a constitutional right to informational privacy, this right was not violated by the background checks. Government agencies have important interests here that courts should respect when asked “to scrutinize the choice and wording of the questions [the questionnaires] contain.” And the Court stressed that the privacy of the employees’ answers was protected from public disclosure.

This case involved interpreting the FLSA, but the broader principle at issue applies to other federal employment laws as well. In fact, the Supreme Court pointed out that Title VII and the Age Discrimination in Employment Act (ADEA) have similar provisions as FLSA.

The takeaways: • In considering background checks, public agencies should bear in mind that privacy concerns are heightened in this age of electronic information. In Nelson, the Supreme Court assumed for discussion’s sake, but did not decide, that the employees had a right to informational privacy. Agencies should anticipate future litigation by employees testing this assumption and should carefully consider—and be able to articulate—their need for information in a background check and its relationship to the requirements of the position in question. • That said, under the right circumstances, agencies can ask intrusive questions and they can ask them of employees who already have been checked previously. • The steps an agency takes to protect the privacy of the information collected are crucial.

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Employer groups argued that recognizing oral complaints as “filings” would be too open-ended and would fail to provide clear enough notice to employers. But in its March 2011 ruling, the Court was persuaded by arguments that Congress did not intend its employee protections to be read so narrowly. The takeaways: • Even informal complaints by an employee can trigger legal duties, notably the duty to investigate and the duty to protect the employee from retaliation and can create liability. On the other hand, not every minor, off-hand comment will constitute a formal complaint. • Employers should consider taking measures to try to sort out which oral comments should be treated as the filing of a complaint. Where a comment even arguably falls into a gray area, supervisors should be prepared to pin the employee down: Is the employee making a complaint about which he or she wants the employer to take some kind of action? If so, the employer should consider insisting that the employee put it down in writing and if necessary should help the employee get it down in writing (while taking care that it remains true to the employee’s perspective). At a minimum, the employer should document the discussion, whichever way it leads and preserve the record just in case.

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“CAT’S PAW” CLAIMS Can an employer be liable for an adverse employment decision taken against an employee by a manager who was unwittingly influenced by the employee’s biased supervisor? In its March 2011 decision of Staub v. Proctor Hospital, 131 S.Ct. 1186 (2011), the Supreme Court decided it can. This decision interpreted the federal Uniformed Services Employment and Reemployment Rights Act (USERRA), which prohibits discrimination on the basis of military service and applies wherever discrimination is “a motivating factor” in the employer’s decision. Many federal employment statutes have similar language and the Court specifically pointed to Title VII as an example. Under Staub, a “cat’s paw” claim—so called after a fable in which the cat burns its own paws pulling hot chestnuts out of the fire for the monkey to eat—is viable where:  The employee’s supervisor takes a step motivated by improper bias;  The supervisor intends a negative consequence for employee; and  The supervisor’s act is the proximate cause of the adverse action taken against the employee by the final decision maker. Even where the final decision-maker investigates the employee independently, this is not necessarily enough to insulate the employer against liability, the Court held. If the investigation relies on any biased input, then discrimination is a “motivating factor” in a decision that is based on the investigation. The Court did not address a scenario where the biased party is not the employee’s supervisor but merely another co-worker. The takeaways: • Discrimination anywhere in the agency’s chain of command potentially can create liability. This means that training against discrimination should be provided fairly widely. When considering how wide, the agency should bear in mind that the Court left for another day the question of whether even a non-supervisory employee’s discrimination can give rise to employer liability. • The final decision maker must be able to rely on unbiased input from lower-down supervisors. • Where any bias is alleged by the employee, the investigation must independently establish grounds for adverse action without any input from the allegedly biased supervisor.

THIRD-PARTY RETALIATION Even where an employee’s discrimination complaint is groundless, the employer still can be liable for retaliation against the employee who raised it. In Thompson v. North

American Stainless LP, 131 S.Ct. 863 (2011), the Supreme Court carried this one step further, ruling in January 2011 that an employee can bring a Title VII claim that he or she was retaliated against for another employee’s complaint in which he or she was uninvolved. The complaining employee in Thompson was the fiancé of another employee, who had brought a sex discrimination complaint. The Court held that the fiancé had a valid claim that his firing was in retaliation for her complaint, even though he had nothing to do with it. Title VII protects “any person aggrieved,” which the Court read more broadly than covering only those employees who engage in protected activity like filing a discrimination complaint. Rather, Title VII protects “any plaintiff with an interest arguably sought to be protected” by the act. Close family members clearly are within this “zone of interest,” the Court held, while mere shareholders are not. The takeaways: • Courts are reading anti-retaliation protections very broadly. Retaliation can be any action that would dissuade a reasonable worker from making or supporting a charge of discrimination. Some actions can be too trivial to fit this definition, but all actions must be viewed cumulatively. • The agency must be cautious about taking any adverse action against an employee after the employee, a family member or someone similarly close to the employee makes a complaint—even if the complaint and the action are completely unrelated. It may be worth consulting legal counsel in advance. • The agency should have clear policies and training to prohibit and prevent retaliation.

ACCOMMODATING DISABILITIES In 2008, Congress overruled with legislation what it viewed as some overly restrictive Supreme Court decisions interpreting the Americans with Disabilities Act (ADA). In May 2011, the regulations implementing the ADA Amendments Act (ADAAA) went into effect. The act and regulations significantly expand the ADA’s reach, primarily by taking the focus away from whether an employee has a covered disability. The ADA defines a disability as a physical or mental impairment that “substantially limits” one or more “major life activities.” Among other things, the new rules provide that: • Whether the employee’s impairment is a qualified disability is to be construed broadly, to “the maximum extent allowable under law”;

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Key Developments in Public Employment Law • Whether a person is “substantially limited” should not require much analysis; • Major bodily functions are themselves “major life activities;” • An impairment that is episodic or in remission is still a disability if it would limit a major life activity when active; and • Except for ordinary eyeglasses, any mitigating measures used by the employee are not to be considered in determining his or her disability status. The takeaways: • Many more employees are now likely to be covered by the ADA and ADA lawsuits will be harder to dismiss in the early stages. • The implications for reasonable accommodations are unclear, but employee requests for accommodations may increase. Agencies must focus more attention on recognizing such requests and on the interactive process for handling them. This entails staff training, careful documentation of requests and how they are handled and perhaps a decision to centralize the process. • There is likely to be renewed focus on whether a disabled employee is “otherwise qualified” for the essential job

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functions, with reasonable accommodations. This would be a good time for a careful review of the agency’s job descriptions and qualifications.

GENETIC DISCRIMINATION In January 2011, the EEOC’s implementing regulations for the federal Genetic Information Non-Discrimination Act of 2008 (GINA) went into effect. GINA prohibits employers from:  Discriminating on the basis of genetic information;  Intentionally gathering genetic information about employees or job applicants—genetic information includes family medical history;  Retaliating for a complaint about a GINA violation; or  Violating rules for protecting genetic information. There are some narrow exceptions allowing an employer to gather genetic information: • Inadvertent discovery; • Discovery through public documents like newspapers; • Family medical information obtained when the employee requests leave to care for a family member; • DNA testing for law enforcement purposes; • Efforts to monitor workplace toxins; and • Information from services like wellness programs offered by the employer on a voluntary basis. The takeaways: • Agencies should avoid acquiring genetic information, if possible, and they should review existing records, practices and forms. They should ensure their policies and training are updated to reflect these rules. • If the agency does ask for genetic information, it should make sure employees know that answering is voluntary. If the agency does acquire genetic information, it must safeguard the privacy of that information and ensure that employees are not discriminated against based on it. • The agency must instruct medical providers that do evaluations for it not to include genetic information—for this purpose, the EEOC provides a model “safe harbor” notice language employers can give an employee or health care provider.

THE BOTTOM LINE Tough economic times can exacerbate workplace conflict and raise the stakes for everyone involved. By staying on top of recent developments, public agencies can protect against the resulting legal risks. Duncan Fobes 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

DPS EMERGENCY RESPONSE GUIDE TEACHES CRISIS MANAGEMENT PROTOCOL FOR SCHOOLS 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?

n public schools, emergencies are an inevitable part of doing business. How schools respond to emergencies can make the difference between a positive outcome and a disaster. Like most public school systems, Denver Public Schools (DPS) faced a need to educate its teachers and other school employees on what to do in the event of an emergency. The National Incident Management System (NIMS) and Colorado state statutes require district personnel be trained in emergency response. Denver Public School Board Policy states that advance planning for emergencies and disasters is essential to provide for the safety of students, staff and visitors to the schools.

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.

In response, Director of Risk Management Stephen Finley and his department staff created the Emergency Response and Crisis Management Classroom Guide, which is a quick-reference, laminated guide for what to do in a number of different emergency situations.

“The guide provides step-by-step procedures to be followed in response to emergencies such as evacuations, lock-downs, severe weather, bomb threats and hazardous spills, to name a few,” he continued. The guide also puts an emphasis on proper handling of child abuse and neglect reporting protocols. The glossy, four-page how-to guide details what teachers should do in the event of suspected child abuse or neglect, as well as who to contact. The guide also covers teacher responsibilities before and after an emergency and includes emergency phone numbers. “This classroom guide could certainly be adapted for use by other school districts,” said Finley. “It would only require slight modification to align it with another district’s procedures.” For more information, contact Stephen Finley at stephen_finley@dpsk12.org.

Finley points out that loss prevention is an important risk control technique best achieved when everyone in an organization is made aware of the risks and are prepared to handle certain events. Teachers play an integral part in responding to emergencies and need to know what actions to take, he continued. “Emergency response training is required for all school emergency teams, which in turn are responsible for training school faculty and staff,” said Finley. “The Emergency Response and Crisis Management Classroom Guide supports this effort.”

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