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Published by the Public Risk Management Association

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SEPTEMBER 2012

CONCUSSION CARE: HEADING OFF INJURIES AND LIABILITY

THE POLITICS OF PUBLIC RISK MANAGEMENT Avoiding the Pitfalls & Pratfalls

CIVILTY REVISITED: From Life-Enhancer to Problem-Solver

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Volume 28, No. 8 | September 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 Dan Hurley, CSP, ARM-P, MS Senior Director, Risk Management & Safety Norfolk Public Schools Norfolk, VA

CONTENTS

PAST PRESIDENT Cindy B. Mallett, AIC, CWCP, ARM-P Risk Manager City of Gainesville Gainesville, GA PRESIDENT-ELECT Betty Coulter Director of Risk Management and Insurance University of North Carolina at Charlotte Charlotte, NC

Dean Coughenour, ARM Risk Manager City of Goodyear Goodyear, AZ

6 CONCUSSION CARE:

Heading Off Injuries and Liability

By John Breckenridge

Michael Fann, ARM-P, MBA Director of Loss Control TML Risk Management Pool Brentwood, TN Matt Hansen, MPA Director, Risk Management Division City & County of San Francisco San Francisco, CA

11 THE POLITICS OF PUBLIC RISK MANAGEMENT

Avoiding the Pitfalls & Pratfalls

By Joseph G. Jarret, Esq.

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

Amy Larson, Esq. Risk and Litigation Manager City of Bloomington Bloomington, MN Regan Rychetsky, ABCP Director, HHS Enterprise Risk Management and Safety Texas Health and Human Services Commission Austin, TX

16 CIVILTY REVISITED:

From Life-Enhancer to Problem-Solver

By Michael G. Fann, ARM-P, MBA

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 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

SEPTEMBER 2012 | PUBLIC RISK

In 2012, PRIMA welcomes back one of its most popular and successful education programs:

PRIMA INSTITUTE! Plan now to attend the 2012 PRIMA Institute, November 5â€“7, in Charlotte, NC. This comprehensive risk management program is perfect for those just starting out in risk management or who have less than five years of risk management experience. This three-day session will help you define the total cost of risk in your organization, the types of insurance programs available to public risk managers, how to empower your risk management team and get a seat at the decision-makersâ€™ table. Each day concludes with case study presentations from experienced risk managers!

PI 12

PRIMA INSTITUTE 2012

THANKS TO OUR SPONSORS:

Message from PRIMA President Dan Hurley

PRIMA’S SUCCESS IS BUILT ON TEAMWORK

s the summer winds down and turns to fall, the baseball playoffs are quickly approaching. It’s the time of year where baseball reaches its zenith, paring down teams until the final two make it to the World Series. During this time, I think of the 1969 Cubs, who are often referred to as the greatest team not to make the World Series with four future Hall of Famers. With an eight-game lead in September, they could not sustain their lead, losing to the Amazin’ Mets. The ‘69 Mets only had one player make it to the Hall, but they were a team that pulled together, each player contributing. Like that Mets team, we have dedicated volunteers who work together as a team, making it possible for PRIMA to reach its goals. PRIMA has several committees that work behind the scenes and serve as the building blocks for the Association. PRIMA members who volunteer their time run these committees. Together with a board and staff liaison, the committees are the components that make up an effective team, working for the same goal: to advance the knowledge and practice of risk management. We have seven working committees in addition to our standing board: Chapter Relations, Membership, Education, External Affairs, Finance and Audit, Leadership Development and Conference Planning. This year Tracy Seiler, manager of risk finance at the University of Texas System, chairs Chapter Relations. Tracy and her committee’s mission is to link with chapter members and leaders, exchange information and assist chapters with communications. In addition, the committee also provides information on PRIMA’s services that may assist a chapter, such as the relatively inexpensive D&O coverage provided through PRIMA’s master policy. Terri Evans, risk manager at the City of Kingsport, Tenn., leads the Membership Committee. Terri’s committee is focused on membership retention along with helping to find new resources for membership. These resources will include traditional and non-traditional risk managers. The Education Committee is chaired by Marilyn Rivers, risk and safety director for the City of Saratoga Springs, N.Y. The Education Committee oversees PRIMA’s educational

objectives and initiatives. Their input includes Webinars, PRIMA Institute and other educational resources such as certification programs like the ARM. Lynn Smyth, assistant city manager, Statesville, N.C., chairs External Affairs. This committee is responsible for monitoring and reporting on legislative and regulatory actions that may impact the field of risk management. Previously, members of this committee had the opportunity to comment on proposed OSHA standards, providing constructive feedback before the final rule was developed. President-Elect Betty Coulter chairs Finance and Audit. This committee reviews PRIMA’s financial reports and audit and participates in the development of the annual budget. Past-President Cindy Mallett chairs the Leadership Development Committee. The Leadership Development Committee reviews all applications for director positions and conducts the final interviews, voting on the selection for board vacancies. The largest committee is the Conference Planning Committee led by chairperson and board member Eddie Beecher. This committee is composed of board members, corporate partners and an AGRIP representative. This committee reviews the nearly 200 conference session submissions and after a complicated rating process, selects the best sessions for the Annual Conference and even determines the conference theme. Not counting board members and corporate partners, these committees are comprised of roughly 25 PRIMA volunteers that serve our Association—enough to field a baseball team. These volunteers are central to helping PRIMA achieve its goal to advance the knowledge and practice of risk management. To all these dedicated volunteers, we should all tip our hats.

PRIMA has several committees that work behind the scenes and serve as the building blocks for the Association.… Together with a board and staff liaison, the committees are the components that make up an effective team, working for the same goal: to advance the knowledge and practice of risk management.

Sincerely,

Dan Hurley, CSP, ARM-P,MS 2012–2013 PRIMA President Senior Director, Risk Management and Safety Norfolk (VA) Public Schools

SEPTEMBER 2012 | PUBLIC RISK

News Briefs

NEWS

BRIEFS N.J. PUBLIC EMPLOYEES RETIRING AT SLOWER PACE, RECORDS SHOW

DAYTON TO FIGHT FEMA DECISION TO DENY MORE FLOOD AID FOR MINN.

After two years in which teachers, cops, firefighters and other public workers headed for the exits in record numbers as Trenton, N.J., took aim at their pensions and benefits, the pace of retirements has slowed drastically, the latest records show.

Gov. Mark Dayton is pledging to fight a Federal Emergency Management Agency (FEMA) decision to deny additional aid to flood-damaged homes and businesses in northern Minnesota, reports the Minneapolis Star-Tribune.

According to the Newark Star-Ledger, a total of 13,865 local and state public workers are expected to call it quits this year, significantly fewer than the 19,585 who retired last year, when Gov. Chris Christie and lawmakers forced them to pick up a greater share of their health and pension costs, according to figures released by the Treasury Department. “It’s slowed down, no doubt,” said Elizabeth Mayor Christian Bollwage. “Last year, we had 50 police and firefighters retire, but so far this year no one has left.” In 2010, as Christie took office and began banging the drum for health and pension reform, the number of retirees hit record numbers as 20,200 people left. In the same year, Christie and lawmakers also enacted arbitration reform and placed spending caps on municipalities, making it more difficult for union workers to get hefty raises. In the decade before Christie came to Trenton, the state shed an average of 13,361 workers annually, figures show.

FEMA announced it was rejecting the state’s request for individual assistance to homes and businesses damaged by the June floods. Within hours, Dayton directed Kris Eide, director of the state’s Homeland Security and Emergency Management division, to appeal the decision. “I believe this was the wrong decision, and I am deeply disappointed. We will begin working on an appeal immediately,” Dayton said in a statement. The governor also plans to call a special session of the legislature in August to direct state aid and resources to the flood-battered counties. FEMA declared a federal disaster area for the flooded region earlier this month and pledged federal assistance to repair public infrastructure in 13 northern counties and three tribal nations. Separate grants for individual assistance would have steered aid to residents and private businesses who suffered damages or losses not covered by insurance. But FEMA usually reserves those grants for disasters that cause serious damage to more than 500 homes, and the state counted only about 171 homes with serious damage. “Based on our review of all of the information available, it has been determined that the damage to dwellings from this event was not of such severity and magnitude as to warrant the implementation of Individual Assistance,” the agency administrator wrote in a letter to Dayton. “Therefore, I must inform you that your request for Individual Assistance is denied.” It is the second time in a row that FEMA has denied individual aid for Minnesota. The agency rejected a similar request in 2011, when a tornado touched down in north Minneapolis in May, wrecking the heart of that neighborhood.

PUBLIC RISK | SEPTEMBER 2012

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NINE STATES ADDRESS MILITARY SPOUSES’ UNEMPLOYMENT Governor Bev Perdue signed into law legislation aimed at helping military spouses land jobs after they arrive at North Carolina military bases, continuing a trend in statehouses to reduce barriers of entry into the workforce for military spouses across the U.S, reports Stateline. Under the law, military spouses trained in jobs that require professional licenses or certification, such as school teachers, registered nurses or childcare professionals, will receive licenses to work in North Carolina, as long as they hold a license in a state with equal or more rigorous standards. “This bill helps streamline the procedures, so military spouses in North Carolina can get the certification they need to work,” Perdue said in a statement. “We owe it to them, to provide this kind of support.” North Carolina became the ninth state this year to enact a law addressing the issue, bringing the total number of states to 20, according to legislative tracking by the Military Officers Association of America. The North Carolina law also allows former soldiers and other personnel trained in professional fields to use their military certifications as civilians, provided that their training meets state standards. Military families, which frequently hop from one state to another, say they are burdened by state-by-state licensing requirements that can prove costly and take months to fulfill after each move. Nearly 35 percent of military spouses in the labor force—more than 100,000 in all—require licenses or certification to work, and the unemployment rate of military spouses over the past five years is close to twice the civilian rate, according to a study released in February by the White House. That’s despite the fact that military spouses receive college degrees at higher rates than civilians.

PA. COURT UPSETS MARCELLUS SHALE ZONING LAW A dispute over Pennsylvania’s attempt to establish statewide zoning for Marcellus Shale drilling likely is headed to the state’s top court, after an appellate panel overturned the new rules, reports the Pittsburgh Post-Gazette.

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Judges on the Commonwealth Court ruled that Pennsylvania cannot require municipalities to allow drilling in areas where it would conflict with their zoning rules, siding with several towns challenging the five-month-old law. That law enacted a sweeping set of changes for how the gas drilling industry operates within Pennsylvania. It created a per-well annual fee, updated dozens of regulations, and, most controversially, dictated which aspects of drilling can and cannot be regulated locally. The decision grants a reprieve to townships that had about two weeks left to overhaul their ordinances before an injunction delaying that section of the new law was to expire.

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SEPTEMBER 2012 | PUBLIC RISK

CONCUSSION CARE:

Heading Off Injuries and Liability By John Breckenridge

A young football player shakes off the pain after his head hits the ground, re-enters the game and then collapses as his brain swells. A right-handed basketball player is shoved to the floor after grabbing a rebound and gets up a left-handed amnesiac. A cheerleader endures multiple falls during a long practice session and fears she will be paralyzed from a sprained neck vertebrae. Repeated concussions, however, are what leave her unable to live a normal life even a year after her last fall.

PUBLIC RISK | SEPTEMBER 2012

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Although concussions will remain a possibility as long as contact sports are played, a consensus is emerging on the best practices to both protect young athletes and mitigate These are just three examples of the approximately 44,000 athletes of all ages who are sent to emergency rooms after suffering concussions while playing sports each year. For football alone, the New York Times has reported that between 1997 and 2010, more than 50 school-age players in 20 different states were killed or received serious brain injuries. Across a wide range of sports, many more have been left with serious disabilities. Head injuries have been in the spotlight for several years for professional football players, who have turned to academic researchers for proof of long-term damage and the courts for financial compensation to cover medical care. The concern and, in some cases, the lawsuits have filtered down to the student-athlete level, opening up new exposure to liability for schools and recreation districts. Although concussions will remain a possibility as long as contact sports are played, a consensus is emerging on the best practices to both protect young athletes and mitigate the risks public agencies face.

THE CONCUSSION PROBLEM A concussion is a type of traumatic brain injury caused by a blow to the head. Sometimes symptoms, such as confusion or dizziness, are temporary and can resolve with rest and refraining from activities. However, sometimes as a result of concussion, the brain can bleed internally and swell, causing immense pressure. The damage can be permanent, causing both physical and mental disability. While at one time it was believed that athletes could simply shake off successive concussions, more recent research at Boston University’s Center for the Study of Traumatic Encephalopathy indicates that the damage is cumulative. Studies of the brains of deceased football players have shown permanent brain alterations, as well as links to early dementia, changes in behavior and depression.

Research also has indicated that athletes who have suffered a concussion and who continue to play can become victims of second-impact injury—causing further damage to a brain that has not been allowed to heal.

the risks public agencies face.

A LOOK AT THE STATISTICS In response to congressional proposals to set minimum safety standards for concussion management in public schools, the federal Agency for Healthcare Research and Quality issued a report in May 2011 on the prevalence of concussions received during sports activities. Highlights from the report, which was based on data gathered in 2008, include: • 43,802 players were taken to emergency rooms and were diagnosed with concussions. • Almost one-third lost consciousness either briefly or for a prolonged period (32.7 percent). • More than three-quarters (77.8 percent) were male. • Fewer than one out of 10 (9.6 percent) were 24 or older. • 14- to-18-year-olds accounted for the greatest number of concussions (57.9 percent). As compelling as these statistics are, they represent only a fraction of all concussions related to sports because oftentimes players are not taken to a hospital. The Centers for Disease Control and Prevention (CDC) estimates that between 1.6 million and 3.8 million sports-related concussions occur in the United States annually. During the past decade, emergency room visits for concussions among children and adolescents from sports and recreation increased 60 percent, according to the CDC. A 2010 study published in the journal, Pediatrics, found that football accounts for the majority of youth sports concussions, with approximately 67,000 diagnosed each year. In fact, experts estimate that at least one player sustains a mild concussion in nearly every game.

SEPTEMBER 2012 | PUBLIC RISK

Concussion Care: Heading Off Injuries and Liability

At one time, it was presumed that athletes knew the risk they were taking by playing sports… However, as the danger of concussion, and particularly of a child continuing to play once they have suffered a concussion, has become well known, schools have been expected to step up their efforts to keep students safe or face liability for injuries that are preventable.

The study found that girls’ soccer has the second highest concussion rate, followed by lacrosse, boys’ soccer, wrestling, girls’ basketball, softball, boys’ basketball, field hockey, cheerleading, girls’ volleyball and boys’ baseball.

THE LEGAL ENVIRONMENT At the pro sports level, players have begun to turn to the courts with their complaints about how head trauma has affected their lives. In June, a master complaint filed in federal court in Philadelphia brought together more than 80 concussion-related lawsuits that had been filed against the National Football League (NFL) by more than 2,000 players. The filing accuses the NFL of concealing the long-term impact of concussions until recently when the league began requiring compliance with strict return-to-play standards following concussions.

More recently in California, Scott Eveland was awarded $4.375 million by a school district after he was injured playing football. Before the game started, he had complained to the team’s athletic trainer about headaches and being unable to focus on the ball, possibly indicating a concussion from earlier practice for the game. Although he asked to sit out, the coach insisted on putting him in the game, where he soon collapsed even though he had not been hit. Doctors performed surgery to stop the bleeding in his brain, but he was left disabled, unable to walk, talk or even feed himself.

Similarly, college athletes have taken their concerns to court. A class-action lawsuit on behalf of four football players has been filed against the National Collegiate Athletic Association claiming the organization has been negligent in educating players about the potential for brain injury and has not provided proper treatment.

At the same time that lawsuits are applying pressure to school districts to address concussion risk, both the federal government and many state legislatures have begun to take up the issue. Action in Congress so far has been unsuccessful, but as of October 2011, 33 states have passed return-to-play laws that regulate how student athletes should be treated if they suffer a concussion.

Now seeking compensation through lawsuits has begun to “trickle down” to the high school level, according to a 2011 article in Harvard’s Journal of Sports and Entertainment Law. In some cases, school districts are making the pragmatic decision to settle rather than go to trial. The Harvard article cites the Missouri case of Zachary Frith who suffered a concussion during a game, continued playing and then continued to practice and play in another game the week after. His parents were not informed of his injury, and only after seeing behavioral changes did they take him to a neurologist. The doctor concluded his initial concussion and further traumatic blows to his head afterwards had

left him with permanent brain damage. Despite notifying the school and coach about the doctor’s order that Zachary refrain from playing, his parents discovered he was still being put on the field for practice. In 2009, the school district settled the case for $3 million.

PUBLIC RISK | SEPTEMBER 2012

PROTECTING STUDENTS AND DISTRICTS At one time, it was presumed that athletes knew the risk they were taking by playing sports, and successful lawsuits against schools for injuries were rare. However, as the danger of concussion, and particularly of a child continuing to play once they have suffered a concussion, has become well known, schools have been expected to step up their efforts to keep students safe or face liability for injuries that are preventable. In an era of tight budgets and fiscal constraint, districts face challenges in putting effective measures in place. The

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following steps are one way to design a low-cost program that can protect students, deliver high-quality medical care and promote good decisions about allowing students to return to the field.

STORIES BEHIND THE STATISTICS

➊ Education. Every coach and athletic trainer should complete a course on brain injuries and the consequences of allowing injured athletes to continue to play. In addition, players and their families need to understand the dangers and be encouraged to speak up when they suspect an injury has been sustained. Replacing the old “shake-itoff-and-keep-playing” ethic with a new one of caution is vital to the protection of young athletes. “When in doubt, sit them out” is becoming a widely used phrase.

• Injured at a football game in 2006 when he was just 13, Zack Lystedt suffered numerous strokes as a result of concussions and was in a coma for three months. According to the CDC, it was nine months before he spoke his first word, 13 months before he could move his limbs, and nearly three years before he could stand on his own two feet. Permanently disabled, he was the inspiration for the state of Washington to pass a law requiring all youth showing signs of concussion to be examined and cleared by a licensed health care provider before being allowed to return to play.

➋ Testing. School districts should arrange for baseline neurological testing for all athletes in sports where concussion is a possible outcome. These simple tests assess a student’s cognitive capabilities before any injury occurs. The results are valuable when a doctor is trying to determine if a player has recovered from a concussion to the extent that he or she can return to active participation. ➌ Procedures. Guidelines should be established that can be applied to both practice and game play. Any student who is suspected of having a concussion should be assessed by a qualified licensed medical practitioner trained in the diagnosis and management of concussion before being allowed to return to the field. The district should establish a relationship with appropriate medical providers in advance and ensure that the baseline data is accessible to help with diagnosis and treatment planning. Only after the student is cleared based on an acceptable neurological report should he or she be allowed to play.

The athletes described at the beginning of this article are real students whose injuries have changed their lives, in one case permanently. Their experiences are a precautionary tale about what can go wrong in school sports:

• Mikayla Wilson got up after hitting her head to continue to play in a Washington high school basketball game. Only after the game did her parents realize she no longer knew the names of her teammates or why she was in a uniform. She also began writing with her left hand and no longer could play the saxophone. Doctors diagnosed a concussion and, a month later, have been testing her regularly to see if her symptoms are subsiding. • When Olivia Doyer was dropped during a cheerleading stunt at a Maine high school, she heard a crunching sound and feared she had been paralyzed as others have who suffered similar accidents. It was not her first fall that night, but everyone was so concerned about her neck that no one thought about concussion. Doctors diagnosed a sprained vertebrae and an impinged disk. Only later was she diagnosed with post-concussion syndrome when she no longer could tolerate light and noise, got dizzy when she turned her head and had frequent headaches. A year after her fall, she has been unable to attend school full time, although doctors believe she will eventually fully recover.

➍ Coverage. Not all students and families may have health care insurance that will cover the cost of neurological baseline and post-injury testing. To ensure consistent treatment of all athletes, school districts can work with their insurance broker to identify low-cost, integrated insurance programs that will coordinate concussion care (including education, baseline testing, diagnosis and treatment) for all of the school’s teams. Young athletes are full of vitality and promise, and no one wants to see their potential dimmed by head injuries that are ignored or poorly managed. School districts that set up concussion care programs will not only protect their students, but also can address a growing and potentially expensive liability exposure. John Breckenridge is senior vice president of the Student Insurance Division for Wells Fargo Insurance Services.

SEPTEMBER 2012 | PUBLIC RISK

PRIMA 2012

WEBINAR SERIES FREE FOR PRIMA MEMBERS! Looking for a cost-effective way to train your staff while avoiding the frustration of budget cuts and travel expenses? The Public Risk Management Association’s Webinar series is designed to help risk management professionals like you excel in the field without leaving your office.

WEDNESDAY, SEPTEMBER 19 | 12 PM – 1:30 PM EST You Don’t Choose Tragedy , But You Can Choose Your Response: Crisis Response for Schools Presenter: John-Michael Keyes, Executive Director, I Love U Guys Foundation The “I Love U Guys” Foundation was created to restore and protect the joy of youth through education and safety programs and positive actions in collaboration with families, schools, communities, organizations and government entities. This Webinar will highlight their extensive research and development of their Standard Response Protocol (SRP), a classroom response to any school incident. The SRP is based not on individual scenarios but on the response to any given scenario. The premise is simple— there are four specific actions that can be performed during an incident. Execution of the action is performed by active participants, including students, staff, teachers and first responders. Patrick Kissane, detective sergeant of the Fort Lee, N.J., Police Department says of the SRP presentation: “I have been involved in school safety for my entire career, and have attended many different trainings on all aspects of school safety. This presentation is a must-see for anyone that cares for or who has a responsibility for the safety of children while they attend school.”

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THE POLITICS OF

PUBLIC RISK MANAGEMENT AVOIDING THE PITFALLS & PRATFALLS By Joseph G. Jarret, Esq.

It has been said that, in the public sector, when politics enter the risk management dynamic, the process of identifying risk can become a risk in and of itself. The hapless risk manager soon finds that identifying risk can become risky business if she or he brings to light infirmities in an organization that some people would prefer be left alone, unreported or ignored. In some organizations, politics create an atmosphere and culture in which it is almost impossible to candidly and openly identify, discuss and bring forward organization risks. Add to this scenario the fact that politicians and risk managers generally do not speak the same language, and you have a recipe for miscommunication and misunderstanding as to just how essential the risk management function is to government. This article will explore the political realities that face the public risk manager, and offer tips on how to practice the risk managerâ€™s craft in a political world.

SEPTEMBER 2012 | PUBLIC RISK

The Politics of Public Risk Management

THE MIND OF THE POLITICIAN It goes without saying that politicians have a bad rap. It was British barrister and political commentator Arthur Shenfield who observed, “The politician achieves popularity by repeating, more eloquently and confidently than most citizens can, the ideas which already prevail in the citizens’ minds, though often in the intoxication of eloquence or power he imagines himself to be the author of what he propagates. As such, the typical politician is a reflector, not a creator, of ideas.”1 Timothy J. Taylor was even less kind when he asserted, “Most politicians have grossly inflated opinions of themselves and the importance of their offices, coupled with a condescending contempt for the little people below them—their subjects—who have the nerve to disclose or challenge their flagrant self-centered and politically motivated machinations.”2 Needless to say, some stereotypes ring true while others are far off the mark. Unlike the political commentator or pundit, the public risk manager doesn’t have the luxury of critiquing those who make the legislative and fiscal decisions that can affect the manner in which an entity is protected from risk. To be sure, the risk manager must practice the risk manager’s craft without personal biases or prejudices, remaining apolitical at all times. However, remaining apolitical does not mean one should not be politically savvy. One becomes politically savvy by becoming familiar with the manner in which politicians think and interact with senior management, the public and the media. Most risk managers discover that, in broad terms, politicians come in two categories when it comes to the entity’s risk management program: Those who have no interest nor knowledge whatsoever in who or what the risk manager does, and Those who, by virtue of elected office, presume they have an affirmative duty to address the risks that impact the community they serve as well as their city or county.

PUBLIC RISK | SEPTEMBER 2012

The challenge for the risk manager is to educate the unconcerned politician while developing a solid working relationship with the concerned politician in an effort to respectfully affirm just who is ultimately responsible for managing the entity’s risk management program. The latter can be best accomplished by taking the time to understand the mind of the politician. For instance, let’s say a risk manager identifies a risk that has the potential to have far-reaching, negative implications for elected officials. The first thought that will generally come to mind is, “Can this risk be avoided, transferred or abated?” The politician, on the other hand, upon learning of the risk, may see the risk identification process as a media event, conducted in a public forum for political advantage. This is especially true if the risk is discovered during an election cycle, or if the city or county manager is of a political persuasion different to that of the politician. Just as the mind of a politician is often alien to the risk manager, the converse is also true. The risk manager lives in a world of uncertainty, often seeking and finding inventive ways to negotiate through the fog or mist of risk. This is the nature of the business and is an accepted variable in identifying and reducing the frequency and severity of loss. The politician, conversely, is generally unnerved by uncertainty and often has unrealistic expectations as to time and expense involved in the maintenance of a viable risk management program. Consequently, it is essential that the risk manager obtain a solid understanding of the political challenges elected officials face when making budgetary and legislative decisions. Such decisions directly translate into whether your budget is approved as submitted or gutted. By staying attuned to the prevailing political winds, you are better able to make informed decisions as to the timing, tenor and implementation of

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It is essential that your risk management team is made aware of the political process in which your organization exists. By ensuring that your staff has a clear understanding of how politics have the potential to impact certain decision outcomes, you have the opportunity to alleviate the frustrations of those who view senior decision makers as being out of touch with reality.

major changes that need to be made to risk insurance and safety management policies and procedures. Remember, politicians loathe surprises and react harshly when they learn about a substantial risk by reading about it in the morning paper or watching the news, rather than hearing about it from you. A word to the wise: report your own bad news. This allows you control of the flow of information and prevents misinformation from making its way to the elected politic. Finally, some politicians are great respecters of the chain of command, enamored by the fact that they have direct and ready access to the city or county manager. However, there are those who will purposely bypass senior staff, opting rather to confer directly with the risk manager. These can prove to be challenging encounters if not handled with a bit of finesse. Some politicians forum shop, going from one manager to another until the answer sought is to their liking. The risk manager is well-advised to brief senior staff after such encounters occur.

WHY CAN’T YOU RUN YOUR RISK PROGRAM LIKE A BUSINESS? The experienced risk manager is well aware that there exist a significant number of federal, state and local legal constraints that preclude public risk managers from running their departments like a business. Although some business models do translate themselves well in government, by and large, public policy precludes profit-driven management to prevail in the public sector. Nevertheless, many politicians still insist that government can be run like a business. It is important to remind them that private businesses exist to turn a profit. They provide goods and services to prospective customers only insofar as it is profitable to do so. Once profitability ends, the business usually ends. This is not the case with government, which exists to provide the general public with services they have a right to possess, regardless if the government entity is providing

them in an efficient manner. This recurring theme, however, does put the risk manager in a position where she or he may have to defend, at times in a public forum, the risk control measures exercised by the department as well as defend the budget necessary to implement those measures.

COMMUNICATIONS WITH YOUR TEAM It is essential that your risk management team is made aware of the political process in which your organization exists. By ensuring that your staff has a clear understanding of how politics have the potential to impact certain decision outcomes, you have the opportunity to alleviate the frustrations of those who view senior decision makers as being out of touch with reality. Consultant Melissa R. Clary wisely suggests that, “In taking the time to educate staff regarding the political process and bureaucratic measures, bills, policy changes and how other government decisions are made, staff can develop awareness for why things are the way they are.”3 Taking this extra step is imperative in a world where public sector employees, most of whom are “wired-in” to social media, no longer have the patience to rely on top-down information systems or the employee newsletter. If they hear it from you rather than their peers, the team’s cohesiveness is reinforced. Of course, the aforementioned presumes the risk manager has taken the time to educate her or himself by observing their city council or county commission members during public meetings and by interacting with them.

A WORD ABOUT THIRD-PARTY CONSULTANTS Over the course of my career as a public risk manager, I have not had the luxury of retaining third-party risk management or safety consultants. However, I have, as a public sector lawyer, retained more than one expert witness

SEPTEMBER 2012 | PUBLIC RISK

The Politics of Public Risk Management

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 • September 19: You Don’t Choose Tragedy, But You Can Choose Your Response: Crisis Response for Schools • November 17: Generational Differences in the Workplace (session presented by Genesis Management and Insurance Services Corporation)

PRIMA ANNUAL CONFERENCES 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

OTHER MEETINGS November 5–7, 2012 PRIMA Institute 2012 Charlotte, NC

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. Connecticut

September 14

Florida-Tampa Bay North Carolina Wisconsin

October 7–9

September 9–12

or consultant. Many consultants pride themselves in their ability to discuss the 800-pound gorilla in the room without pretense, as well as their ability to remain either oblivious to, or immune from, the political pressures with which organization members are saddled. The ability to ply ones trade in a vacuum may seem appealing; however, I suggest that the consultant should be cognizant of the political factors being faced by the risk manager, if only to prevent her or him from making suggestions that are not founded in reality, or fail to consider impending budget cuts, reductions in force, etc. For instance, it may never occur to a consultant that there are political considerations involved when determining whether the consultant should be paid a flat fee for each service that is offered (regardless of whether that task takes two hours or two weeks) as compared to an hourly, daily, or weekly fee for services rendered. If the consultant did not do her or his homework beforehand, then a crash course in local politics is in order. Again, there is a balance between being aware of political realities and skewing a report to accommodate them. Clearly, the latter is unacceptable. The old saw, “Knowledge is power,” never rang more true when it comes to assessing and managing risk. By educating yourself as to the personalities, needs, agendas, mindset and priorities of your elected officials, you can go a long way into maintaining your credibility as a professional risk manager while bolstering your entity’s image in the eyes of the people who hold the purse strings. Joseph G. Jarret, Esq. is an attorney, mediator and former public risk manager.

END NOTES: 1. Arthur A. Shenfield (1909–1990) was a British barrister, economist and prolific writer who spent years as a visiting professor at several American universities. 2. Timothy J. Taylor is an attorney and author of the book: Authority! Implications of Consciousness and the Reality of Existence. 3. For an excellent analysis of the public administration versus the political decisionmaking processes, see Melissa Clary, founder and principal, Alluven Consulting, “The Importance of Understanding the Politics of Public Administration” 2004, American Society for Public Administration Weblog.

September 11

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PUBLIC RISK | SEPTEMBER 2012

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CIVILTY REVISITED: FROM LIFE-ENHANCER TO PROBLEM-SOLVER By Michael G. Fann, ARM-P, MBA

The desire for a more civil discourse within community institutions, in the political arena, in interpersonal relationships, and certainly within the workplace, continues to capture the attention of psychologists, sociologists, politicians, the news media, and yes, even you and me. This article is written as a follow-up, a part two if you will, to the piece titled, “The Risk Control Impact of Workplace Incivility” (Public Risk, July 2010). In that article, an effort was made to outline “incivility” as the foundational cause of many of the discriminatory harassment and hostile work environment claims and lawsuits that so many organizations find themselves engaged.

RIGHTS AND RESPONSIBILITIES Citing Plato’s call to “be kind, for everyone you meet is fighting a hard battle,” the article examined the conflict created when an “instant gratification,” narcissistic culture is not willing to give the other person his or her “battle.” In other words, give the other person a little leeway or the benefit of the doubt while dealing with their stresses of the day. Instead of giving the other person a little leeway, our current culture commands that you let the other person know immediately how you feel about what they’ve said or done. The “I want it my way and I want it right now” call of our current culture has its foundation in our fundamental right of due process... our right to be heard—a right that is vital to our republic. However, our “right to be heard” must always be evaluated in tandem with our responsibilities to each other as human beings. In a civil society, you can’t separate rights from responsibilities. In the previous article, we also borrowed Walt Disney’s analysis that everyone in life is either a life-enhancer, a lawnmower, or a well-poisoner. Disney insisted that we should strive daily to be a life-enhancer for everyone we encounter. However, is it enough to simply have a sound philosophical foundation in a culture when so many people have a blind spot regarding their own personal behaviors? At some point, we have to shift the civility movement from the philosophical to the pragmatic. As Will Rogers said, “You can be on the right track and still get run over if you just stand there.” Perhaps it’s time to move from simply being a life-enhancer to actually solving the problem.

PUBLIC RISK | SEPTEMBER 2012

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MANAGE THE RISK So, what do we do? How about “manage the risk”? Within the risk management process, risk professionals are taught that, if it’s important, you write it down. Once you’ve identified a foreseeable exposure, you analyze and select an approach to address that exposure. Developing a written policy or statement of values outlining that the organization expects a work environment free from hostile, offensive, uncivil and otherwise inappropriate behaviors is a must. Once the organization has documented its expectations regarding the parameters of acceptable behavior, the policy needs to be presented to the staff for discussion and understanding. These training sessions are designed to convey the entity’s expectations but also to provide the staff with an opportunity to ask questions, discuss, develop understanding and perhaps even object to the policy being outlined. Once the policy is outlined and training provided, then the entity must supervise, lead and provide the proper example for its staff. Supervisors must ensure that the policy and behavioral expectations are being applied consistently and fairly across the organization. Administrators and senior leaders must also insist that supervisors are supporting the civility effort, and actually supervise the supervisors. The next step in implementing the new policy is providing and supporting a strong disciplinary structure. This structure needs to not only include the administrative remedies designed to correct inappropriate behaviors, but also the more positive aspects of discipline. In other words, is it possible that people are making good decisions and we can catch staff members doing things right? We need to support the good decisions our staff may be making, and then reinforce these acceptable behaviors.

A city administrator was heard to make this statement, “We made a policy decision to support and cultivate a culture of civility... to promote a positive spirit in the organization. And we insist that everyone participate.” That’s how you change a culture, when civility becomes a condition of employment and all employees are evaluated as such. Through recognition and incentive, the organization’s staff needs to be rewarded for grasping this important culture shift.

HOW YOU ENGAGE PEOPLE Seriously, you want me to include “Foundational Interpersonal Skills” as part of our organization’s employee training program? YES! One goal of civility is for all staff to show regard and consideration for the other person before they speak or act. However, perceptions become reality, and many people suffer from inadequate interpersonal skills and, therefore, are perceived to have been inappropriate, abrasive or offensive regardless of intent. Even if your training effort includes just basic “skill with people” such as encouraging staff to (1) smile, (2) engage in active listening (i.e. listen with your eyes and nod your head occasionally), (3) show genuine regard for your co-workers (you can only fake this for a short period), (4) develop a professional, firm handshake, and (5) engage your co-workers by asking questions beginning with who, what, where, when, or how based on items from their lives that they have shared in the workplace. Obviously, there’s a danger threshold here and one must not cross the personal boundaries for subjects that

SEPTEMBER 2012 | PUBLIC RISK

Civilty Revisited: From Life-Enhancer to Problem-Solver

Our personal and professional lives are full of examples where much more was accomplished, more successfully and with a greater sense of satisfaction when we chose to cooperate, engage others positively in a cause and go there together.

would be deemed illegal under Title VI or Title VII of the Civil Rights Act, but truly, “people don’t care how much you know until they know how much you care.”

inject emotion and hostility into the equation and then the resolution process deteriorates quickly.

COMPASSIONATE CONFLICT RESOLUTION

The critical function for administrators and supervisors is to engage the staff when the “red flags” go up. In other words, don’t wait until the police department or the attorneys have been called, jump in early and manage your way through the conflict. So, manage at the “red flag” level and, from time to time, conduct “stay interviews” with your most positive, productive staff members. Most are familiar with “exit interviews.” But you rarely get objective feedback in those! Identify staff members who are generally positive and happy about working for the organization, and seem to really enjoy their jobs, and interview them about what they like about the organization, and what they believe could be improved. You’re more likely to get an objective evaluation and suggestion in these circumstances. Finally, and it’s worth repeating, SET THE EXAMPLE (my apologies for screaming). Executive leaders, administrators and supervisors who firmly grasp and implement these positive changes, and then lead by example, will go farther and faster in creating positive change within the organization’s culture.

Insist that everyone in the organization follow a simple, effective and compassionate conflict resolution process. While there are many effective methods of accomplishing this, the bottom line is that when someone says or does something that someone might find inappropriate, offensive or hostile, a staff member (either the one offended or another) needs to (1) give it a few seconds, (2) go to that person privately in a respectful, unemotional and non-threatening way, and (3) call their attention to the potentially inappropriate behavior. Now the conflict resolution “ball” is in the potential offender’s court. That person needs to respond in a respectful, unemotional and non-threatening way. He or she either agrees with what has been brought to their attention (i.e. “You know you’re right... I shouldn’t have said that.”), or disagrees (i.e. “I really don’t think what I said was that bad, but let’s talk about it.”). Keeping the lines of communication open in a respectful way is vital.

PROACTIVE ENGAGEMENT

At some point, the two parties to this conversation will hopefully come to an agreement as to whether the behavior was inappropriate or not. If they do not, then a third-party (ideally, a supervisor) is brought into the conversation, both viewpoints expressed, and the matter resolved through supervisory involvement. And, as Dr. Karl Menninger points out, “Attitudes are more important than facts.” The supervisor must constantly be studying the attitudes with which staff approaches potential conflict and negative situations.

A good final word to contemplate when considering the interpersonal and conflict management dynamics within your organization is an old African proverb: “If you want to go quickly, go alone... If you want to go far, go together.” Our personal and professional lives are full of examples where much more was accomplished, more successfully and with a greater sense of satisfaction when we chose to cooperate, engage others positively in a cause and go there together. “Now...,” as Sheriff Andy Taylor (Andy Griffith) used to tell his son, Opie (Ron Howard) at the front door to the courthouse, “...go out there and act like somebody.”

Again, this process sounds simple, but it certainly isn’t easy. All too often, one or both of the parties to the conflict

Michael G. Fann, ARM-P, MBA, is director of loss control for the TML Risk Management Pool in Brentwood, Tenn.

PUBLIC RISK | SEPTEMBER 2012

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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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SEPTEMBER 2012 | PUBLIC RISK

Member Spotlight

DENVER PUBLIC SCHOOLS PUTS A STOP TO FLOOR FINISHING ACCIDENTS 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

chool hallways and classroom floors take a beating, no matter what school district you visit. In Denver Public Schools (DPS), these floors are routinely refinished by district employees. The routine is complex and the process has resulted in serious injuries, some requiring hospitalization and surgery. “A review of the injury data suggested that the removal of old wax, using a chemical to dissolve it, was the single greatest hazard,” said Stephen Finley, director of risk management for DPS. “It creates a very slick surface that resulted in falls and chemical burns.” Finley, along with the district’s facilities and risk management departments, created a video titled, Floor Finish Removal Procedures. This training DVD is designed to teach building operations employees how to safely and efficiently accomplish the floor finish removal process. It emphasizes that this process can be done safely, as long as safety and planning do not take a back seat. The 15-minute video was distributed to all DPS facility management and building operations supervisors.

or 703.253.1267.

“It is the mission of the DPS risk management department to provide a safe place to learn and work,” said Finley. “This DVD adheres to this policy and to the risk management technique of loss prevention by providing employees with procedures for safely accomplishing this task.” LuAnn Rex, occupational safety specialist, researched the topic of floor finish removal and could not find an existing video that addressed the district’s safety issues. Therefore, DPS decided to produce their own. This is a one-of-a-kind

PUBLIC RISK | SEPTEMBER 2012

PAST 5 YEARS—28 INJURIES Injuries due to slips/falls - 61% Injuries due to sprains/strains/ contusions - 25% Injuries due to chemical burns/fumes - 14% Total Cost over 5 years: $246,000+

training video that addresses a serious safety issue that other school districts across the country also face. “The opening of the video features testimonials from our employees about the safety hazards involved in the floor finish removal process,” she said. “We videotaped our employees performing this process at a DPS high school.” Rex said that she believes that the use of the district’s own facilities and employees performing the process for the video helps to validate the district’s safety policies and procedures as well as their emphasis on a more proactive approach to safety. “Loss prevention is an important risk control technique best achieved when everyone in an organization is made aware of the risks and what they can do to mitigate those risks,” said Rex. “We felt this DVD addressed a serious issue we faced as well as made everyone aware of this problem.” Finley said this DVD could be beneficial to any district facing a similar issue. For more information, contact LuAnn Rex at luann_rex@dpsk12.org

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

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