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Published by the Public Risk Management Association

www.primacentral.org

NOVEMBER/DECEMBER 2013

THE AMENDED AMERICANS WITH DISABILITIES ACT Shifting Obligations for Human Resource Management

MILLENNIALS FACE HURDLES BREAKING INTO PUBLIC SECTOR LIKE IT OR NOT, HERE THEY COME! Citizen Volunteers in Times of Disaster


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Volume 29, No. 10 | Nov/Dec 2013 | www.primacentral.org

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

PRESIDENT Betty Coulter Director of Risk Management and Insurance University of North Carolina at Charlotte Charlotte, NC

CONTENTS

PAST PRESIDENT Cindy B. Mallett, AIC, CWCP, ARM-P Risk Manager Gwinnett County Schools Lawrenceville, GA PRESIDENT-ELECT Regan Rychetsky, ABCP Director, HHS Enterprise Risk Management and Safety Texas Health and Human Services Commission Austin, TX

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6 THE AMENDED AMERICANS WITH DISABILITIES ACT:

Shifting Obligations for Human Resource Management

By Michael Otworth, CPCU, and Benjamin C. Eggert, Esq.

To Compete with the Private Sector and Nonprofits These Days, States and Localities Have to Rethink Their Recruiting and Hiring Processes

Dean Coughenour, ARM Risk Manager City of Flagstaff Flagstaff, AZ Terri Evans Risk Manager City of Kingsport Kingsport, TN

11 MILLENNIALS FACE HURDLES BREAKING INTO PUBLIC SECTOR

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

By Mike Maciag

Matt Hansen, MPA Director, Risk Management Division City & County of San Francisco San Francisco, CA Amy Larson, Esq. Risk and Litigation Manager City of Bloomington Bloomington, MN Tracy Seiler Director of Risk Management Services Texas Association of Counties Austin, TX EXECUTIVE DIRECTOR Marshall W. Davies, Ph.D. EDITOR Jennifer Ackerman, CAE Deputy Executive Director 703.253.1267 • jackerman@primacentral.org

16 LIKE IT OR NOT, HERE THEY COME!

Citizen Volunteers in Times of Disaster

By Joseph G. Jarret

20 REMOVING SOME OF THE PAIN OF SAFETY TRAINING

By Gregg Juster

ADVERTISING Donna Stigler 888.814.0022 • donna@ahi-services.com

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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

Copyright 2013 Public Risk Management Association Reprints: Contact the Reprint Outsource at 717.394.7350.

4 News Briefs | 19 Advertiser Index

NOVEMBER/DECEMBER 2013 | PUBLIC RISK

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PRIMA 2013

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, NOVEMBER 13 | 12 PM – 1:30 PM EST

AMENDMENTS TO AMERICANS WITH DISABILITIES ACT— IMPLICATIONS FOR HUMAN RESOURCE MANAGEMENT PRESENTERS: Michael Otworth, CPCU, ASLI, Vice President, Claims Department, Genesis Management and Insurance Services Corporation Benjamin C. Eggert, Partner, Wiley Rein LLP This Webinar will examine recent statutory, regulatory and case law developments that bear on public entities’ human resource obligations under the amended American with Disabilities Act (ADA). Although the ADA originally was enacted more than two decades ago, Congress amended the ADA in 2008 in response to several U.S. Supreme Court decisions that narrowed the statute, and the implementing regulations promulgated by the EEOC went into effect in 2011. This Webinar will provide an overview of the practical implications of these changes, which present challenges to public employers that must predict their responsibilities under a recalibrated ADA. In addition, it will address actual claims against public employers, discussing the issues and exposure in such matters. Finally, because the amended ADA now shifts the focus to whether the public entity employer has provided reasonable accommodations to employees, the Webinar will discuss strategies to assist public human resource managers in meeting their evolving obligations in an atmosphere of fiscal uncertainty and legal ambiguity. During this Webinar, participants will learn how to: • Understand the evolving public entity human resource obligations under amended ADA • Develop strategies for predicting responsibilities under shifting ADA requirements • Learn how to survey recent claims under amended ADA Who should attend: • Human resource professionals • Risk management professionals • General counsel • City & county attorneys REGISTER TODAY!

PRIMA members receive complimentary registration and access to the Webinars! S E R I ES S P O N S O R :

For more information, or to register, visit www.primacentral.org.


Message from PRIMA President Betty Coulter

RISK REFLECTIONS

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friend and colleague of mine uses the following quote by Vince Lombardi: "The challenge for every organization is to build a feeling of oneness, of dependence on one another…because the question is usually not how well each person works, but how well they work together.” As we prepare for the year end, I would like to reach across the aisles and say thank you for your service. This year we have seen the devastating effects of the fires, floods, and tornadoes in our communities. We have experienced the loss of lives, property and a general sense of normalcy. Our communities have been disrupted, our families displaced, and leisure time interrupted by circumstances that impact our personal and public security. I hope those around you are keeping you uplifted as you move through rebuilding, restoring, and rediscovering your communities. As relief efforts continue, I encourage you to avail yourselves of resources and provide avenues to support your employees by connecting them with the resources of the Red Cross, FEMA, Samaritan’s Purse and other local public and private agencies. Recently, PRIMA has set up a Disaster Recovery Group in the PRIMA online Community. Simply go to primacentral.org and login with your email and password. Visit the Community and sign up for the “Disaster Recovery Group” for an additional comprehensive list of resources.

It has been a year since Hurricane Sandy, “the Superstorm of the Century,” hit our neighbors of New Jersey and the North East. Since then we have witnessed the Boston Marathon bombings; the fires of Arizona; and historic floods of North Carolina and Colorado—to name a few. We know from history that the human spirit rises above any devastating occasion and I am confident that history will repeat itself during these challenging times. The recovery from these events will take many years. As risk managers, we will continue to work on plans and develop resources to better serve our communities and families. As members of PRIMA, we are strengthened by our membership and chapters. Make yourself a resource for those in need as there is strength in numbers.

As we prepare for the year end, I would like to reach across the aisles and say thank you for your service. I hope those around

Happy holidays to your and yours.

you are keeping you

Sincerely,

uplifted as you move through rebuilding,

Betty P. Coulter 2013–2014 PRIMA President Director of Risk Management and Insurance UNC Charlotte

restoring, and rediscovering your communities.

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News Briefs

NEWS

BRIEFS TO SETTLE LAWSUIT, WISCONSIN AGREES TO STOP REQUIRING PERMITS FOR PROTESTS To settle a free speech lawsuit, Wisconsin Gov. Scott Walker's administration agreed to pay more than $88,000 in attorneys’ fees and drop its hard-and-fast requirement that larger groups protesting in the Capitol receive a permit, reports the Milwaukee Journal Sentinel. The Walker administration faced a federal trial in January over the permitting requirement as part of a lawsuit brought by a protester with the assistance of the American Civil Liberties Union of Wisconsin. Under the agreement, the state Department of Administration would keep its permitting rules in place but also would allow up to five days of demonstrations if protesters simply give the state two days' notice. Michael Kissick, the University of Wisconsin-Madison assistant professor of medical physics and human oncology who brought the lawsuit, said the settlement provided a significant shift in how the state handles demonstrations. Instead of having to ask permission, now protesters can simply provide a heads up, he said. "If you're going to have a party, you might give a courtesy call to your neighbor," he said. "You don't ask permission. ... It's neighborly." The state agreed to pay $88,271 in attorney fees for Kissick and a woman who sometimes sings Christmas carols who was later added to the lawsuit. Both sides said the state was required to pay the fees under federal civil rights law. A stipulation to dismiss the case because of the agreement will be submitted to U.S. District Judge William Conley in coming days. The settlement comes after 2 1/2 years of frequent protests that grew out of opposition to Gov. Scott Walker's move to end most collective bargaining for most public workers. Those demonstrations have at times prompted clampdowns by the police, most recently this summer.

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GOVERNOR WANTS TENNESSEE TO QUICKLY RISE FROM BOTTOM 10 IN TEACHER PAY Gov. Bill Haslam wants Tennessee’s teacher salaries to become the fastest improving in the nation, a long-term and still-unfunded goal that complements a controversial new pay plan that rewards educators who perform the best, reports The Tennessean. The Republican governor used an announcement recognizing the state’s “Teacher of the Year” nominations to unveil an objective he says is one of the most important his administration has taken on: bumping teacher salaries in Tennessee, which currently sit at the bottom 10 nationwide, to the very top in growth. Haslam, vowing no new tax increases would be needed but soliciting help from the state legislature and local school districts, called achieving that by the time his second term would end in 2018 a “realistic” time frame. “We’ve asked a lot of our teachers—I understand that,” said Haslam, flanked by Republican legislative leadership. “We believe that in addition to raising expectations for our educators, we must also recognize and compensate their achievements. “The last day in my office when I walk out, one of my commitments is to make Tennessee one of the leading states in the country when it comes to teacher salaries.” The average salary of Tennessee teachers is slightly less than $50,000, according to state officials. It actually went up more than 4 percent over the past two years, they say, while the national average increased by only 1.8 percent.

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STUDY: TOP 3 BIG CITIES WITH WORST ROADS ARE IN CALIFORNIA The roads in greater Los Angeles are the most deteriorated in the United States, which costs Southern California drivers more than $800 a year, according to a national transportation analysis. Los Angeles-Santa Ana-Long Beach ranks first among cities with more than 500,000 residents for the percentage of roads in poor condition, according to TRIP, a Washington, D.C.-based nonprofit group that studies transportation data and issues. According to the study, about 64 percent of roads in greater Los Angeles are in poor condition. The Los Angeles Times reports that potholes and rough pavement cost local drivers about $832 a year, TRIP said. The estimate includes the cost of repairs, tune-ups and tires, as well as faster depreciation of vehicles. The average urban driver pays $377 annually, according to the study. The nationwide cost of driving on deteriorated roads was $80 billion. The analysis was based on the Federal Highway Administration's 2011 data, the most recent available. The federal government catalogs, on a scale of 1 to 100, the condition of major state and locally maintained roads and highways in urban and rural areas. The index includes potholes, utility cuts and various types of cracks. Overall, L.A.'s sprawling network of roads received a C-minus grade, and a quarter received an F, according to recent city data. City staff members are studying the possibilities of a borrowing program to fix what officials say is a $3 billion, 60-year backlog of repairs. The cost has doubled since 2005 and is expected to double again in the next decade. City Council members Joe Buscaino and Mitchell Englander hope to include a proposal to issue city bonds for the work on the fall 2014 ballot. A two-thirds majority of voters would have to approve issuing the debt. Nationally, more than a quarter of major urban highways and streets are in poor condition, according to federal data. The same roadways handle about 78 percent of the 2 trillion miles driven annually in urban America. The second- and third-worst urban road networks are also in California. About 60% of roads in Oakland and San Francisco are in poor condition, as are 56 percent of roads in San Jose.

UNINSURED POPULATION DECLINES AS MEDICAID POPULATION GROWS The rate of uninsured Americans dropped slightly for the second consecutive year in 2012, from 15.7 percent to 15.4 percent, largely a result of more people enrolling in Medicare and Medicaid, the U.S. Census Bureau reported. The closely-watched report found that about 48 million Americans were uninsured in 2012, down from 48.6 million in 2011, a change the agency said is not statistically significant. The report is the last look at the uninsured before the major coverage expansions of President Barack Obama’s health law take effect in January. "It is encouraging that fewer people were uninsured in 2012 than in the previous year, but the huge number of Americans still without health insurance is a stark reminder of the important work that lies ahead," Ron Pollack, executive director of Families USA, a consumer advocacy group, said in a statement. One of the most significant changes was a decline in the rate of uninsured children, from 9.4 percent in 2011 to 8.9 percent, largely related to government efforts to make it easier for children to get coverage and keep it.

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THE AMENDED AMERICANS WITH DISABILITIES ACT: SHIFTING OBLIGATIONS FOR HUMAN RESOURCE MANAGEMENT

By Michael Otworth, CPCU and Benjamin C. Eggert, Esq.

By now, public entities might reasonably expect that their obligations under the Americans With Disabilities Act—which is better known as the ADA—would be well settled given that the statute was enacted more than 20 years ago. But recent amendments to the ADA and strategic enforcement priorities announced by federal officials have left public entity employers with shifting and emergent obligations to their actual and prospective employees. This article will summarize the history of the ADA as well as recent amendments to the statute, then survey employers’ developing responsibilities under the amended ADA together with practical strategies for public entities to address their shifting obligations.

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On a basic level, virtually every aspect of the relationship between a public entity and actual or potential employees may be affected by the ADA. Like other employers, a public entity may be required to provide modifications or adjustments to a job, application, process or work environment that will allow a qualified person with a disability to enjoy the benefits and privileges of employment.

BRIEF HISTORY OF THE ADA So let’s start with the basics. What is the ADA? Passed in 1990, the ADA prohibits discrimination on the basis of disability by all state and local governments, regardless of size (and most private entities as well). In the employment context, the ADA protects qualified individuals with disabilities that can perform the essential functions of a job with a reasonable accommodation. On a basic level, virtually every aspect of the relationship between a public entity and actual or potential employees may be affected by the ADA. Like other employers, a public entity may be required to provide modifications or adjustments to a job, application, process or work environment that will allow a qualified person with a disability to enjoy the benefits and privileges of employment. Examples might include: making facilities physically accessible, restructuring job responsibilities, modifying work schedules and acquiring equipment. While these protections were built into the statute, many lawsuits challenged the application of the ADA and courts narrowed the protections of the statute. Two suits in particular dramatically limited claimants’ ability to bring ADA claims. In Sutton v. United Airlines (1999), the United States Supreme Court held that mitigating measures can eliminate a person’s classification as disabled. In other words, if a device could mitigate the effects of disability, then the person is not considered disabled. And in Toyota v. Williams (2002), the United States Supreme Court held that demonstrating a disability under the ADA requires a demanding standard and it is not enough for an individual to be severely limited in the workplace; he or she must be severely limited everywhere. Together, Sutton and Toyota made it extraordinarily difficult

to bring a disability claim under the ADA except in the most egregious situations.

RECENT AMENDMENTS TO THE ADA Sutton and Toyota highlight the reasons why the ADA was broadened in a variety of ways in 2008 when Congress enacted an amended statute. Under the amended ADA, determining whether a person is disabled is now a much easier threshold to reach. The amended ADA now includes a non-exclusive list that encompasses a range of actions and bodily functions that may qualify a person as disabled. In other words, virtually anything that people do (such as seeing, hearing, sleeping, eating, lifting and breathing) and anything that bodies do (such as functions of the circulatory, endocrine, digestive or neurological system) may now be considered a disability. After these amendments, a huge range of medical conditions may be covered by the ADA and an individual may be considered disabled even if not outwardly so. For instance, an individual may now be considered disabled for a medical condition such as diabetes despite the fact that the person doesn’t show any visible disability. What is important to remember here is that the amended ADA shifts the focus away from establishing a disability to whether a reasonable accommodation would enable the employee or applicant to perform the job– that is, the employer’s response to a request for an accommodation, not on the whether the person is disabled in the first place.

EMERGING ISSUES UNDER THE AMENDED ADA In the last year, the EEOC and court decisions have shown how the amended ADA can impact employers in myriad

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The Amended Americans with Disabilities Act

There are two lessons that can be drawn from Keith v. Oakland County. First, all stereotypes—even those “confirmed” by outside advisors—are very dangerous legally; an employer cannot draw broad conclusions about job performance based simply on a person’s condition. Second, the interactive process under the ADA involved in addressing a request for a reasonable accommodation is critical.

ways. Like many governmental organizations, the EEOC periodically develops plans to establish goals for its activities over extended periods. In December 2012, the EEOC issued a “strategic enforcement plan,” which provides a roadmap of its enforcement priorities between 2013 through 2016. The EEOC has signaled a variety of areas that it will emphasize in enforcement activities: for example, the EEOC expects to focus on potential discrimination in recruitment and hiring, obtaining equal pay across different groups of workers and protecting access to the legal system by targeting policies that are perceived to discourage employees or applicants from exercising their rights under the amended ADA. Moreover, the general counsel of the EEOC has indicated that it will place a greater focus on ADA litigation involving those classes of person given little protection under old law—diabetes, epilepsy, cancer, intellectual disabilities. The EEOC also will pay close attention to recent court decisions and new legal theories affecting workplace discrimination. Court decisions likewise highlight emerging issues under the ADA. In Keith v. Oakland County (6th Cir. 2012), the Oakland County government in Michigan—like local governments nationwide—operated a pool. And like any public pool, it needed life guards. Nicholas Keith has been deaf since his birth in 1980; he communicates primarily by using American Sign Language (ASL), but he can detect noises, including loud voices, through an ear implant. Keith enrolled in and successfully completed a junior lifeguard training course using an ASL interpreter to relay verbal instructions to him. While he needed an interpreter for instructional purposes, he executed all lifesaving tasks and training techniques

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himself. Upon successful completion of the training, Keith applied for a part-time lifeguard position at the county’s wave pool, asking only that an ASL interpreter be present at staff meetings and further classroom instruction. Katherine Stavale, the county’s recreation specialist, offered the position to Keith, contingent upon a preemployment physical. Upon learning that Keith was deaf, the physician performing the physical disqualified him. Oakland County did not immediately disqualify Keith based on this report, however. The county contacted a risk management consulting firm who regularly advised the county regarding its water park, pools and other aquatic facilities. Unfortunately, these consultants (1) never met Keith, (2) had no experience accommodating deaf individuals in aquatic settings and (3) performed no research regarding the same. The risk management firm simply “expressed concern” over Keith’s ability to “be responsible for a lifeguard stand by himself.” Based on the reports of both its physician and its risk management consultants advising against hiring Keith, the county withdrew its offer of a lifeguard position based solely on his disability and in spite of the fact that he had completed all the necessary training. The United States Court of Appeals for the Sixth Circuit held that the county failed to make an individualized assessment under the ADA of Keith’s fitness to work as a lifeguard and whether a reasonable accommodation was necessary, because neither the doctor nor the consultants made an effort to determine if the plaintiff could serve as a lifeguard despite his deafness. In other words, they simply concluded summarily that a lifeguard could not perform his job responsibilities without being able to hear. There are two lessons that can be drawn from Keith v. Oakland County. First, all stereotypes—even those “confirmed” by outside advisors—are very dangerous legally; an employer cannot draw broad conclusions about job performance based simply on a person’s condition. Second, the interactive process under the ADA involved in addressing a request for a reasonable accommodation is critical. What this means is that public employers must precisely address whether and why a prospective or current employee cannot perform a job—ideally with specific reference to a person’s job responsibilities and the request for accommodation. Again, Keith v. Oakland County highlights that request for accommodation and potentially resulting discrimination claim are mostly likely going to turn on the request for accommodation and the employer’s response, not whether the person is considered “disabled” and what that really means in practice.

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The Amended Americans with Disabilities Act

PRACTICAL STRATEGIES FOR PUBLIC EMPLOYERS What does all of this mean for public entities? Given the amendments to the ADA and the EEOC’s potential enforcement priorities, public entity employers likely will face increased scrutiny as to their workplace policies and procedures. To help mitigate their risks, public entity human resource departments may consider a variety of activities, conducted in conjunction with legal counsel, to mitigate legal risks and exposures.  Review ADA Policies. While many public entities may have written ADA compliance policies or practices, they should be reviewed for conformity with the amended ADA and the EEOC’s implementing regulations. If no such policies exist, the public entity should consider developing them.

To help mitigate their risks, public entity human resource departments may consider a variety of activities, conducted in conjunction with legal counsel, to mitigate legal risks and exposures.  Management Training. Managers and supervisors should be trained on changes in the law and the public employer’s updated policies. Particular focus should be placed on thinking broadly as to what is a “disability” and focus on reasonable accommodations.  Review and Update Job Descriptions. Job descriptions often define what are the essential functions of a job, which can often determine the analysis of reasonable accommodations.  Document the Reasonable Accommodations Process. Because the amended ADA has shifted the focus away from whether an employee has a disability to whether a reasonable accommodation has been provided, employers must create a clear record of its efforts to comply with requests for accommodations. Public employers should consider designating a person within the human resources group to receive, coordinate and document the reasonable accommodations process to ensure consistency and a documented record of the interactions between the public entity and the employee or applicant.

situations, a denial of reasonable accommodations is often the focus of the dispute. The burden of disclosure of the disability initially rests with the affected employee, but once the public entity is on notice, the burden quickly can shift to the human resource management to address a request for a reasonable accommodation as to a condition not always commonly thought of as a “disability.”  Master the Balancing Act on Emerging Issues. Public employers need to strike a balance between workers’ needs versus public entity’s need to operate. For instance, employee leave is a recognized accommodation in certain circumstances, but it is far from clear that employee leave is “reasonable” in all situations. The resolution of these kinds of requests underscore that the amended ADA requires a fact-specific, individualized inquiry to determine whether an accommodation must be provided and it highlights the importance of the strategies listed above in making sure that public entity employers comply with the obligations under the ADA. In summary, the amendments to the ADA are creating new protections for employees and new obligations for employers. This, in turn, will require public employers to develop new approaches to address these issues. In doing so, public entities will need to strike a balance between their workers’ needs versus their own need to operate. What’s more, public employers must be cognizant that their obligations may continue to shift in an uncertain legal climate. Michael Otworth,CPCU is a vice president and senior unit manager for the public entity claim division of Genesis Management and Insurance Services Corporation. Benjamin C. Eggert, Esq. is a partner with Wiley Rein LLP.

 Become Cognizant of Non-Visible Disabilities. Courts increasingly are citing non-visible disabilities – such as cancer, epilepsy/seizure disorders and diabetes. In such

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MILLENNIALS FACE HURDLES BREAKING INTO PUBLIC SECTOR TO COMPETE WITH THE PRIVATE SECTOR AND NONPROFITS THESE DAYS, STATES AND LOCALITIES HAVE TO RETHINK THEIR RECRUITING AND HIRING PROCESSES

By Mike Maciag

Chris Howell was dead set on working in local government. He had been a graduate student in business school and decided that wasn’t what he wanted his career to be about. So he began doing just about everything conceivable to prepare for a change in direction. He earned a master’s degree in public administration. Through volunteering and internships, he worked with a dozen municipalities—from a small town’s fire department to a regional chamber of commerce. Howell then hit the job market in late 2008. It wasn’t the best time to be looking for public employment. By networking, though, Howell eventually succeeded in finding a job with the Massachusetts Rehabilitation Commission. “It was hard, but I knew it was what I wanted to do, so I kept at it,” he says. “If you really want to make local government your career, it’s a matter of persistence.” Now he works as a budget and management officer for the town of Dedham, Mass. Breaking into the public sector isn’t a whole lot easier now than it was when Howell started out. Young people wanting to pursue government careers face a series of barriers. States and localities hard hit by budget pressures often lack the resources to offer them entry-level positions. But it isn’t just the tight job market for new applicants that is changing the nature of state and local employment. Governments need to make adjustments of their own. It’s hard for agencies to compete with the private sector for top talent when they have to freeze pay or trim benefits. Millennials who do end up in the public sector bring their own perspectives and a different set of job expectations they want employers to accommodate. At the same time, the workforce continues to experience shifting roles as nonprofits and contractors take over more tasks traditionally performed by public employees.

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Millennials Face Hurdles Breaking into Public Sector Taken together, these realities are sending a signal that the next generation of public servants will be fundamentally different from those who make up much of the workforce today. The Great Recession hit young people particularly hard in all sectors of the economy. The unemployment rate among people ages 20 to 24 hovered between 15 and 16 percent for much of 2009 and 2010. Some aiming at careers in government still haven’t caught up. Tim McManus from the nonprofit Partnership for Public Service says he has seen a dramatic reduction in paid summer internships, with federal agencies either providing only unpaid positions or eliminating slots altogether. “Young people looking at jobs face one of the more challenging times that we’ve seen in quite some time,” he says. Depending on how well they weathered the economic downturn, state and local governments may or may not have managed to preserve internships and other entry-level programs.

The lengthy hiring process and lower entry-level pay are obstacles that governments have long fought to overcome as they’ve recruited against the private sector. Offering generous benefits and pension plans helped agencies compete. However, many can no longer afford these incentives in an era of cutbacks. “Now that they’re not there, the public sector has to really work harder to be more attractive,” says Rex Facer, a Brigham Young professor who studies workforce issues.

Recent signs do point to a slowly improving outlook in the public job market. A survey of mostly state and local government members of the International Public Management Association for Human Resources conducted this spring reported that 26.5 percent incurred hiring freezes, down from 41.6 percent the year before.

An increasing number of new graduates hoping to work in government aren’t finding immediate openings or none that offer much job security, so they are taking their talents elsewhere. Young graduates entering the workforce are discovering that they don’t need to work in government to serve the public. As agencies at all levels continue to expand their use of contracting with private firms and nonprofits, students are adjusting their job searches accordingly.

But there’s a catch. Hiring managers are so focused on immediate concerns that they’re ignoring workforce needs for the long term, McManus says. When governments are allowed to fill a single position after eliminating multiple jobs through layoffs or attrition, they tend to hire veterans who can hit the ground running.

At the University of Kentucky, about 20 percent of public administration and public policy graduates took jobs with businesses or private associations over the past two years. It’s a figure that has increased as students broaden their wish lists.

When opportunities do exist, job applicants are in for a long wait. While the federal government expedited its hiring process in recent years, it still takes agencies around 100 days on average to hire. State and local governments

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typically fill vacancies faster, but lag far behind the private sector. “The private sector over the last 20 years has developed clear and better pathways to employment,” says Laurel McFarland of the Network of Schools of Public Policy, Affairs and Administration (NASPAA). One of the more common complaints levied against governments is that they often don’t update applicants on where they stand in the process, leaving job seekers in the dark as they hunt for other opportunities.

PUBLIC RISK | NOVEMBER/DECEMBER 2013

“We’re experiencing a much greater diversity of placements, and part of it is due to the reduction of opportunities in state and local government,” says Merl Hackbart, director of the university’s Martin School of Public Policy and Administration. With an understanding of the public sector,

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Hackbart says, the school’s graduates serve as valued additions to a government relations staff or other corporate offices. Similarly, when J. Edward Kellough started teaching at the University of Georgia 25 years ago, it was unusual for public administration graduates to end up at nonprofits. Now, he estimates that about a third of students go to work in that sector, typically in management, performance measurement or related roles. It’s clear that the lines dividing the roles of government, private firms and nonprofits have blurred. So rather than confine themselves to a single job sector, students tend to focus on an issue or policy goal regardless of where they’ll end up. “The sector distinction coming in is becoming less and less of a driver,” says Mary Beaulieu, Harvard Kennedy School of Government’s assistant dean and director of career advancement. While recent graduates navigate a difficult job market, employers are adjusting to the new mindset that millennials are bringing to the workplace. For one thing, they don’t stay put for long. A national survey conducted by the research firm Millennial Branding found that 45 percent of companies experienced a turnover rate among their younger ranks double that of older employees. Along with job hopping, academics say younger workers expect to move between sectors as well. “More than ever, I think students are coming back and are very interested in having an organizational culture that meets their needs,” says Bryan Kempton, career services director for the University of Maryland’s School of Public Policy. Research also indicates that millennials desire work they consider meaningful right away. Employees decide how long they’ll stick around early on in new jobs, so it’s crucial for managers to give them at least a taste of something challenging soon after they sign on. Jamie Gwynn, a 26-year-old University of Pennsylvania graduate, focused his job search on local government, where he best felt he could directly implement programs without waiting long. Northampton Township in Pennsylvania was prepared to give him what he wanted. After a few months, he has worked on a budget, an employee handbook and employee pay classification. Seeing firsthand results as simple as a newly paved road are a source of great motivation for him. “We get to do a lot of the day-to-day things that really make people’s lives move,” Gwynn says. Like others of his generation, Gwynn wants to be in a position where he can grow and quickly learn. “We don’t set ourselves for 30 years,” Gwynn says. “We want to make a difference, otherwise, we’ll want to move on.” North Carolina is one of the places where the turnover rate for state government workers ages 18–30 is approximately double that of older employees. Sondra Chavis, an HR consultant, says the state recognized a need to retain these workers and transfer to them vital knowledge from their peers. “Not only do we need young people to come in and take on these positions, but we need their brain and innovative ideas on the table,” she says. The state responded by launching its Young Employees Initiative, not only to better understand the needs of millennials, but to actually address them. Employees mostly in their 20s from various state agencies serve on an advisory committee, conducting studies and making recommendations on issues important to their peers. Chavis, who leads the initiative, says the committee has pushed long-neglected workforce concerns to the forefront. Online job applications, for example, were finally implemented by all state agencies last year. The group also made strides in encouraging agencies to

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 2013 • November 13: Amendments to Americans With Disabilities Act—Implications for Human Resource Management

PRIMA ANNUAL CONFERENCES 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 June 5–8, 2016 PRIMA 2016 Annual Conference Atlanta, GA Hyatt Regency Atlanta

OTHER MEETINGS November 4–8 PRIMA Institute 2013 Milwaukee, WI

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. Kansas Nov. 16 Tennessee Nov. 20–22 Texas Nov. 11–14 To have your chapter meeting listed on the PRIMA Web site, contact Bles Dones at bdones@primacentral.org.

NOVEMBER/DECEMBER 2013 | PUBLIC RISK

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Millennials Face Hurdles Breaking into Public Sector

While recent graduates navigate a difficult job market, employers are adjusting to the new mindset that millennials are bringing to the workplace. For one thing, they don’t stay put for long. A national survey conducted by the research firm Millennial Branding found that 45 percent of companies experienced a turnover rate among their younger ranks double that of older employees. Along with job hopping, academics say younger workers expect to move between sectors as well.

allow for more flexible work schedules. “The energy level from the initiative and the fact that they can bring in a new perspective is really the kicker,” Chavis says. What’s more, governments are realizing they’ll need to find new ways to connect with prospective employees. Chief among these are social media Web sites, such as Facebook and LinkedIn. To further reach candidates, more state and local governments are posting openings on GovernmentJobs.com, a national recruiting Web site with an integrated applicant tracking system. Nearly 700 agencies in 44 states were advertising positions in August, the Web site reports. Before the North Carolina Department of Transportation began advertising positions on the site, the agency received about 125 applicants for an entry-level training program. Now, it’s getting about 400. “It has really made our recruitment pool become nationwide,” says Barry Bridges, the department’s career services manager, “where before it was very much a localized effort.” Of particular concern for HR managers is the brain drain set to occur as a large segment of baby boomers exits the workforce. “Potentially, we have a talent crisis just as much as was talked about for the financial crisis,” says Elizabeth Kellar, president of the Center for State and Local Government Excellence. Partnerships with academic institutions are gaining prevalence, she says, along with peer mentoring. “The governments ahead of the curve have been doing pretty serious workforce development work.”

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In Wyoming, state health director Tom Forslund is employing a twofold approach to developing talent. A fellowship program places some recent public administration graduates in the department’s policy unit before they’re brought on as full-time employees. For others, the department recently kicked off a leadership development program in partnership with a local community college, providing talks by college instructors and other state employees over the course of nine months. “Governments need to respond to this changing world and be in a better position to compete and retain talent,” Forslund says. He is counting on this new crop of leaders to stay on and move up in the agency, a critical need since a quarter of the workforce will retire or be eligible to do so within the next five years. The good news about all this change is that despite the drawbacks, millennials don’t seem to be discouraged from seeking careers in the public sector. Young up-and-comers continue to sign up for schooling in public administration and policy. The latest NASPAA figures indicate no dip in graduate school enrollment. Will Miller, dean of the University of Illinois’ public administration program, says his students continue to want to pursue public service, despite all the negativity surrounding that state’s political environment and insolvent pension system. “In spite of it, we still have all these kids coming into the program,” he says. “That’s impressive.” Mike Maciag is data editor for GOVERNING. Copyrighted 2013. e. Republic, Inc. 105240:1013AT

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JUNE 8–11 • LONG BEACH, CALIFORNIA ANNUAL CONFERENCE REGISTRATION OPENS IN JANUARY! For more information, visit conference.primacentral.org.


LIKE IT OR NOT,

HERE THEY COME! Citizen Volunteers in Times of Disaster By Joseph G. Jarret

W

hen disaster strikes, the public risk manager is called upon to seamlessly perform the duties of her or his office, albeit in an infinitely more stressful environment. Adding to that stress is the convergence of well-meaning citizen volunteers who are not affiliated with a structured relief effort or organization. The Federal Emergency Management Agency (FEMA) encourages citizens who want to help their communities in the aftermath of a disaster to do so by affiliating themselves with an experienced voluntary agency.1 Despite this sage advice, most citizen volunteers follow no established protocol or prescribed order of assistance when disaster strikes. Rather, they most often spontaneously appear: some ready, willing and able to offer expert assistance, and others who possess little or no emergency management skill, serving only to complicate an already complicated situation.

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Volunteers who are not affiliated with a structured relief effort or organization are a diverse group of people who are not easily labeled, but who can share some common characteristics. As the term implies, Scott Ingram, director of community services, Volunteer Center of Tucson, wisely pointed out that “volunteer management is too often an afterthought. A more structured approach is required, particularly when hundreds or thousands of volunteers want to be engaged.” Unfortunately, in many disaster-stricken areas, volunteer management quickly becomes risk management, requiring many a risk manager to step out of the proverbial risk management comfort zone. THE “TYPICAL” VOLUNTEER Volunteers who are not affiliated with a structured relief effort or organization are a diverse group of people who are not easily labeled, but who can share some common characteristics. As the term implies, they are not part of a recognized voluntary agency. More often than not, they have little or no formal training in emergency response yet often possess a variety of other skills. They come from near and far the disaster-affected area some with a mission in mind, others with no preconceived plans whatsoever. They range from people with a sincere desire to help to those who are seeking to exploit the situation for their own benefit. They are concerned friends and relatives of disaster victims, or merely curious onlookers. In other words, volunteers who spontaneously show up at disaster sites are as diverse as their motivations for being there.2

A QUESTION OF RISK In the midst of a disaster, senior staffers often quickly come to the stark realization that one of the often overlooked and essential players in the volunteer dynamic is the public sector risk manager. From the risk manager’s perspective, a volunteer is best viewed as any other risk that must be avoided, transferred, or mitigated. The risks inherent in permitting volunteers to participate in recovery efforts can result in claims being filed against an entity by volunteers

founded in workers’ compensation, and personal injury law, and from persons who may suffer personal injury or property damage/loss at the hands of volunteers. As such, it often falls to the risk manager to assess the risks posed by volunteers, as well as identify the risk management methodologies best suited to reduce the severity and frequency of the risks inherent in volunteer activities. Once the risks are identified, the most common risk management strategies, all of which can be applied to a volunteer scenario, are:

they are not part of a recognized voluntary agency. More often than not, they have little or no formal training in emergency response yet often possess a variety of other skills.

• Risk Avoidance: The public entity decides to avoid the risk altogether by not permitting volunteers in or around the disaster area; • Risk Control: The public entity elects to permit volunteers to participate in disaster recovery efforts albeit under the command and control of disaster response professionals; • Risk Transfer: The public entity transfers the risk to the volunteers themselves through releases or hold harmless agreements or to a third-party organization. • Risk Financing: The public entity, after a cost-benefit analysis elects to commit public funds in the event liability claims arise.

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Citizen Volunteers in Times of Disaster

REFERENCES: 1. Federal Emergency Management Agency (FEMA). A Citizen’s Guide to Disaster Assistance (2010). FEMA Information. Retrieved from http://www.fema.gov. 2. Fernandez, Lauren, Barbera, Joseph, van Dorp, Johan. (2006). Spontaneous Volunteer Response to Disasters: The benefits and consequences of good intentions. Journal of Emergency Management, Vo.4., No. 5. 3. California State University, Northridge. (2012). Risk Managing Volunteers. The 18111 Nordhoff Street, Northridge, CA 91330 4. Florida Commission on Community Service. 2010. Unaffiliated Volunteers in Response and Recovery. 44 Appleyard Drive, Tallahassee, Fl 32304 Web Site: www.fccs.org

Merely identifying volunteer risks and their concomitant risk management strategies can prove to be a challenge, especially when operating in disaster mode. The risk manager must simultaneously assess both the risks to which volunteers may be exposed and the potential risks volunteers may pose to the operation, organization and local populous. Risk management experts at the University of CaliforniaNorthridge (2010)3 suggest that volunteers be identified and categorized by position and that screening mechanisms be put in place to assess the various categories of volunteers based upon levels of risk. They offer the following matrix designed to screen volunteers according to their risk potential while offering tools designed to address such risk: I. LOW RISK VOLUNTEERS ARE REQUIRED TO: • Fill out an application form • Agree to an interview • Sign an agreement • Undergo orientation and training • Agree to be subject to monitoring • Agree to be evaluated on an annual basis II. MEDIUM RISK VOLUNTEERS ARE SUBJECT TO ALL of THE ABOVE WITH THE ADDITION OF: • Providing two reference checks • Agreeing to be evaluated during the first three months then annually III. HIGH RISK VOLUNTEERS ARE SUBJECT TO ALL THE ABOVE WITH THE ADDITION OF: • Agreeing to police reference checks • Consenting to close supervision • Consenting to a probation period, followed by an evaluation and then an annual evaluation Other screening tools an entity may wish to take advantage of based upon the

nature and level of risk posed by the presence of volunteers and the tasks to which they are assigned include: • • • • • • • • • •

Creating a detailed position description Engaging in careful recruitment Requiring credit, reference and qualifications checks Requiring driver’s records check Requiring a home visit Requiring medical testing (for example, a TB or hepatitis shot) Probation, buddy system or mentorship Orientation and training Supervision including spot checks Establishing policies, including abuse/harassment identification and response, discipline and dismissal

Needless to say, the monitoring, evaluation and triage, if you will, of volunteers, does not end once they are issued their respective mission statements, nor should screening end once the volunteer is in place. The identified level of risk associated with a volunteer position will determine the necessary degree of supervision and evaluation. If the risk is great, it follows that the volunteer will be under close supervision. It was a member of the Florida Commission on Community Service4 who wisely observed, “It will never be possible to predict exactly how many unaffiliated volunteers will show up, who they will be or what skills they will bring. But it is possible to be prepared to gain the maximum benefit from their contributions, and for them to leave your community knowing that they have eased the pain of a survivor, helped to protect or rebuild someone’s property, and helped your community to recover from the disaster.” It is possible for the risk manager to reduce the risks inherent in having spontaneous volunteers operating in a disaster area by being ever mindful of the fact that volunteers bring with them various risks that must be managed through the sound risk management techniques that make the risk manager a necessary and integral player in the disaster arena. Joe Jarret is an attorney, mediator, and former public risk manager who lectures on behalf of the Department of Political Science, University of Tennessee, Knoxville.

The identified level of risk associated with a volunteer position will determine the necessary degree of supervision and evaluation.

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Advertiser Index

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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 under-budget? 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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REMOVING SOME OF THE PAIN OF SAFETY TRAINING By Gregg Juster

Online training system works just as effectively for a small organization as it does for large organization… With an online training system, even the smallest organization would have access to all of the training programs, testing, scheduling and documentation as the largest organization at a reasonable cost.

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Let’s face it—safety training is not fun. It’s not fun for the person taking the training, and it certainly isn’t fun for the person that has to do the training, document the training and fill out the information required by OSHA. But let’s also face the fact that safety training is critical to the government entity and more importantly, to all the employees. Scheduling meetings, holding the meetings, getting the employees to the meetings, getting the employees that missed the meetings to another one, documenting attendance, documenting employee knowledge of the subject, putting together reports and making sure that work areas are safe and following your instructions are time consuming. It would be good if you could spend your time making the areas of work safer rather than all your time in training sessions. The answer is online safety/HR training. Not only can online safety training can make your job easier and less time-consuming for the tedious task of safety training meetings, it can make your safety training more effective and identical for every employee. Note—online training will not end all safety meetings, nor should it. Occasional safety meetings with multiple employees are critical to a safe working environment; they offer a way for employees to air their feelings and make suggestions. Additionally, some training can only be done “hands on” such as forklift driving test certification. Utilizing the Web allows for the flexibility of training anytime and anywhere there is a computer—use it to your advantage Computers have made our lives easier when it comes to information, and safety training is all about information. Online training with the accompanying LMS (Learning Management System) does far more than just offer great training. A good LMS offers automatic documentation, automatic testing, a notifying scheduler, employee feedback and free customizing for the safety manager to add their own training programs. These tasks free you up from the mundane and allow you to truly concentrate on safety.

BUT WAIT—THERE’S STILL MORE Online safety training saves your entity money. Few people know how expensive safety training can be. It’s not your salary, it’s not even the purchase of programs or books—it’s the time an employee spends away from work

PUBLIC RISK | NOVEMBER/DECEMBER 2013

to get trained, especially if that employee has to travel to the training.

SIZE DOES NOT MATTER Online training system works just as effectively for a small organization as it does for large organization. Imagine the cost of trying to set up a successful, comprehensive training program for an organization with less than 20 employees. The time required to manage the training and the cost of implementing such a program can be prohibitive. With an online training system, even the smallest organization would have access to all of the training programs, testing, scheduling and documentation as the largest organization at a reasonable cost. Of course for a large entity, even with multiple locations, the benefits of an online system over the traditional “on site” training in terms of scheduling, documentation access to records and management of multiple locations from any computer terminal (think: cloud) makes online training something that any organization should be strongly considering. Some things to look for in online training include: • • • • • • • •

Library of programs Ease-of-use Customizing options Automatic updating of OSHA requirements How programs are presented New programs added Price and options Service

THE BOTTOM LINE When you add up all the benefits, its easy to see why web based safety/HR training is becoming so popular. Cities, counties, schools, as well as industry have taken the next step in training. And it’s not just for big corporations any more. Gregg Juster is the president of Webnettraining.

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