Public Risk October 2016

PUBLISHED BY THE PUBLIC RISK MANAGEMENT ASSOCIATION OCTOBER 2016

DIRECTIONALLY CHALLENGED? Chart a Course for Success PAGE 6

ALSO IN THIS ISSUE

FASTER GOVERNMENT Rethinking the Risk Equation

PAGE 11

PREVENTING SEXUAL MISCONDUCT IN SCHOOLS PAGE 14

PRO

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SUPPOR UD

PRIMA 2 016

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OCTOBER 2016 | Volume 32, No. 9 | www.primacentral.org

CONTENTS

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

PRESIDENT Terri L. Evans Risk Manager City of Kingsport Kingsport, TN PAST PRESIDENT Dean R. Coughenour, ARM Risk Manager City of Flagstaff Flagstaff, AZ PRESIDENT-ELECT Amy J. Larson, Esq. Risk and Litigation Manager City of Bloomington Bloomington, MN DIRECTORS Brenda Cogdell, AIS, AIC, SPHR Risk Manager, Human Resources City of Manassas Manassas, VA Scott J. Kramer, MBA, ARM City/County Director of Risk Mgmt Montgomery County Commission Montgomery, AL

Directionally Challenged?

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CHART A COURSE FOR SUCCESS

Jani J. Jennings, ARM Insurance & Safety Coordinator City of Bellevue Bellevue, NE Scott Moss, MPA, CPCU, ARM, ARM-E, ALCM P/C Director Oregon Public Entity Excess Pool Salem, OR Lori J. Gray Risk Manager County of Prince William Woodbridge, VA Donna Capria, CRM, CIC, AINS Risk & Insurance Coordinator WaterOne of Johnson County Lenexa, KS

By Gary Jennings, CPCU, ARM, ALCM, AIC, ARe, SCLA

NON-VOTING DIRECTOR Marshall Davies, PhD Executive Director Public Risk Management Association Alexandria, VA EDITOR Jennifer Ackerman, CAE Deputy Executive Director 703.253.1267 • jackerman@primacentral.org ADVERTISING Courtney Blackford 888.814.0022 • courtney@ahi-services.com

Faster Government RETHINKING THE RISK EQUATION

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14

Preventing Sexual Misconduct in Schools

By Stephen Cerro

By William D. Eggers

IN EVERY ISSUE

| 4 NEWS BRIEFS | 19 ADVERTISER INDEX

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.

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

Copyright 2016 Public Risk Management Association

OCTOBER 2016 | PUBLIC RISK

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MESSAGE FROM PRIMA PRESIDENT TERRI L . EVANS

R

What I Did on My Summer Vacation

emember having to write the first essay of the school year, “What I Did on My Summer Vacation”? I do. My childhood summers were always similar—visits to Grandma’s house, trips to Cedar Point (the greatest amusement park in the history of childhood, in my opinion!), swimming at the local pool and playing in the neighborhood and at the playground (constructed on asphalt) from morning to dark. In those days, parents had no idea where their kids were until they came home for supper!

Unheard of today.

Today’s parents understand the potential dangers of increased traffic, inattentive drivers and nefarious individuals, as well as risks inherent to playgrounds, abandoned buildings or empty lots. Helmets and other safety equipment are required for riding bikes, skateboarding and rollerblading. Effort is put into providing coordinated, instructional, inspirational, physical, mental and artistic efforts for children in a safe environment with appropriate supervision. Parents evaluate the overall activity to determine its appropriateness for their children, taking into consideration age, physical ability, interests and family finances.

Sounds like a great way to evaluate whether or not a program is appropriate for your family!

As summer ends, those of us with school systems have prepared for the return of students, trained bus drivers, evaluated emergency response plans and had teacher orientation.

We replace summer hazards (heat exhaustion, poison ivy, bee stings, building updates/renovations, summer recreational injuries) and realize we are preparing for the winter ones (hazardous driving conditions, slippery sidewalks, frozen pipes, winter recreational injuries).

With the change of seasons, what do risk managers do? We evaluate upcoming issues, fall festivals, holiday activities, snow and ice removal, insurance renewals at the New Year, etc. In evaluating these, we contact our departments to see what is planned, what has changed, where we are and what we

It has been my pleasure to spend my first summer as

president of PRIMA extolling the value of enterprise risk management, planning ways to increase the

visibility of public sector risk management, encouraging others to enter our field, planning upcoming

activities and getting to know many of our members.

are going to do. We are often the folks who ask questions and raise issues that the department did not even think about, and then get the players together to come up with proactive solutions. If new wrinkles surface, we again get together to work through them as a cohesive team, to come up with even better solutions. Sometimes, we have to stop a program for legalities or process issues, but we can also work through the problems, often coming to the best solution.

Without even realizing it, we all use pieces and parts of enterprise risk management every day, in all aspects of our lives. Parents use it to make decisions for their children the same way department heads use it to determine the best way to complete necessary operations. Risk managers use it when evaluating each situation we encounter and those we see on the horizon.

meeting, selecting the quality educational sessions you have come to expect, for PRIMA’s 2017 conference in Phoenix, Arizona. The Conference Planning Committee continues to offer inspiring, educational sessions for our members, taking into consideration your suggestions and evaluations from last year.

Look for cutting edge topics, subject variety, satisfaction of risk management core competencies and new trends. All this coupled with great speakers, keynote addresses and a wide variety of networking opportunities. Truly, PRIMA’s Annual Conference has something for everyone.

ERM at its finest!

Not having spent a lot of time in our nation’s glorious southwest, I am truly looking forward to the Phoenix conference and the beauty of the region. Especially since the weather is turning colder, with snow in some areas of the country, it is nice to look forward to Arizona’s dry heat and the fellowship our PRIMA Annual Conference brings!

It has been my pleasure to spend my first summer as president of PRIMA extolling the value of enterprise risk management, planning ways to increase the visibility of public sector risk management, encouraging others to enter our field, planning upcoming activities and getting to know many of our members. In September, we had the conference planning

Terri L. Evans 2016–2017 PRIMA President Risk Manager City of Kingsport, Tenn.

OCTOBER 2016 | PUBLIC RISK

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NEWS BRIEFS

NEWS Briefs

DRUGS USED TO FIGHT HEPATITIS, WORM INFECTIONS MIGHT STOP ZIKA A drug already on the market to treat worm infections and another being tested against liver diseases may also help treat Zika virus infections, researchers reported to NBC News.

The findings are a rare bit of good news about Zika, which has caused epidemics across Latin America and the Caribbean, and smaller outbreaks in Florida, the Pacific and southeast Asia.

Zika has caused smaller epidemics of birth defects, notably brain damage that can cause miscarriages or profound developmental injuries in babies. It can also cause a paralyzing condition called Guillain-Barré syndrome.

It’s spread by mosquitoes and by sex. As of now, there is no vaccine or treatment.

“It takes years, if not decades, to develop a new drug,” says Hongjun Song of Johns Hopkins, who worked on the project. “In this sort of global health emergency, we don’t have that kind of time.”

But libraries of existing compounds let researchers use a computer to look for drugs that work in specific ways.

“So instead of using new drugs, we chose to screen existing drugs,” said Dr. Guo-li Ming, a neurology professor at Johns Hopkins University School of Medicine. “In this way, we hope to create a therapy much more quickly.”

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PUBLIC RISK | OCTOBER 2016

They were delighted to find a drug already on the market and considered safe to use in pregnant women. “Niclosamide is an FDA-approved drug (trade name Niclocide) that has been used in humans to treat worm infections for nearly 50 years, and it is well tolerated,” the team wrote in their report, published in the journal Nature Medicine.

“

“It is known to inhibit several viruses in culture systems, including the Japanese encephalitis flavivirus.”

Japanese encephalitis is a relative of Zika and also carried by mosquitoes.

“

The team at the National Institutes of Health (NIH), Johns Hopkins University and Florida State University looked first in a library of existing drug compounds for products that might act to stop Zika from killing brain cells and perhaps stop it from replicating itself.

So instead of using new drugs, we chose to

screen existing drugs… In this way, we hope to create a therapy much more quickly.

Dr. Guo-li Ming, neurology professor at Johns Hopkins University School of Medicine

FACEBOOK WILL SOON ALLOW USERS TO ACTIVATE SAFETY CHECK DURING EMERGENCIES Facebook is working on opening up its Safety Check feature to users, reports VentureBeat. Speaking at a town hall meeting in Rome, Mark Zuckerberg revealed that the social giant is building on the feature to allow users to activate it themselves during emergencies. Though it’s not clear when the update will roll out, it should certainly help to address criticism the company has received regarding the way it has deployed Safety Check in the past.

The meeting took place at Rome’s Luiss University, and the revelation came in response to a question about how Facebook plans on deploying Safety Check in the wake of the recent Italian earthquake.

Zuckerberg stated that the company is devoting resources to creating tools that not only let people share stories but keep one another safe.

“When Safety Check got started a couple of years ago,” he said, “It was only for natural disasters. Unfortunately since then we’ve had to expand it to terrorist attacks too, because that’s just been too common over the last few years. The next thing we need to do is make it so that communities can trigger it themselves when there is some disasters.”

After launching in late 2014, Safety Check was first deployed in response to the 2015 Nepalese earthquake.

However, Facebook received criticism for activating the tool after the terror attacks in Paris, with critics saying the company favored Western concerns over events affecting people in places like Lebanon. Since then, the feature has been activated more broadly. By opening the tool to users, the goal of keeping users both connected and safe can hopefully be better achieved.

TEXAS STOPS HELPING POOR FAMILIES PAY THEIR ELECTRIC BILLS Texas will no longer help low-income families pay their electric bills. Lite-Up Texas, a program that offered discounts to hundreds of thousands of poor Texas families over the years, has run out of money and the discounts ended on Aug. 31, the Public Utility Commission confirmed to the Texas Tribune.

Though observers expected the money to run out after lawmakers declined to extend the program’s funding source three years ago, advocates are concerned that long-time beneficiaries will be blindsided when their assistance vanishes.

Houston’s mayor, led an effort to force lawmakers to use the money as it was intended. He succeeded, though lawmakers also ended the surcharge of 65 cents per megawatt-hour that fueled the fund, which reached more than $800 million in 2013.

With roughly $350 million left over during the 2015 session, Gov. Greg Abbott signed a bill that extended the program’s life until the fund was tapped.

Analysis of that legislation suggested the discounts could continue through August of 2017.

“We’re very worried,” said Lynda Ender, a program director at Senior Source, a nonprofit that provides services to elderly folks in Dallas.

“We expect to have a flood of calls.”

But the bill gave the Public Utility Commission broad latitude to set the discounts, and regulators chose to drain the fund this year—spending as much on discounts as possible without going into the red.

About 700,000 households relied on the program in 2015, according to the Public Utility Commission, with state subsidies reducing their electric bills from 25 percent to 31 percent.

“We scaled the discount, keeping roughly in line what it had been previously,” said spokesman Mike Hoke. “It’s kind of a Price is Right rule.”

The commission instructed electric providers to notify customers of the program’s demise—by mailing fliers along with utility bills. But Ender and other advocates worry that some former beneficiaries will still be caught off guard.

“People that do need assistance from time to time—sadly they’re in a reaction mode,” she said.

“They don’t have the luxury of planning ahead.”

Lawmakers created the program, funded by electric ratepayers across Texas, in 1999 to help poor Texans pay their utility bills in the state’s newly deregulated electricity market.

Texans who were eligible for food stamps or Medicaid qualified for the program. The discount did not apply to people living in noncompetitive Texas electric markets, like Austin and San Antonio, or customers not served by the Electric Reliability Council of Texas. But some utilities offer their own help for qualifying ratepayers.

The program doled out hundreds of millions of dollars in assistance, even as lawmakers occasionally tapped its funding source—called the System Benefit Fund—to prop up the state’s budget.

In 2013, Rep. Sylvester Turner, a Democrat who is now

A small sum remaining in the account will rollover into the state’s general revenue, he added.

Ender said her group is starting to get calls from concerned clients as “word is spreading through the grapevine.” She expects to get plenty more as folks start seeing bills without the discount.

Carol Biedrzycki, director of the Texas Ratepayers Organization to Save Energy, said she was saddened that no lawmaker is trying to resurrect the program or championing its cause.

“This program worked really well,” she said. “It’s very disappointing to me that no one has recognized this as an issue and stepped forward.”

As the program ends, so will the relationship between the Public Utility Commission and the Texas Health and Human Services Commission, which had determined eligibility for the discounts.

That has prompted questions at the utility commission about how it will keep its list of low-income Texans up to date. The agency needs that data to determine who can get other privileges: waivers for late fees and the ability to pay deposits in installments, for instance.

The commissioners have asked the legislature for guidance.

OCTOBER 2016 | PUBLIC RISK

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DIRECTIONALLY CHALLENGED? CHART A COURSE FOR SUCCESS

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BY GARY JENNINGS, CPCU, ARM, ALCM, AIC, ARE, SCLA

unning a successful claims program has become increasingly challenging for public entities. The recent deep recession had many entities reeling as the tax receipts decreased. Fortunately the national economy has recovered somewhat, but it has not been uniform, and there is still financial uncertainty. Tax receipts have not yet recovered, and in some areas they may never recover because of permanent losses of industries in the areas and in their employee population, which in some cases has led to an exodus of citizens. Furthermore, the public entities cut back on personnel and some maintenance and services during the recession, so there is now more to do with fewer people.

OCTOBER 2016 | PUBLIC RISK

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DIRECTIONALLY CHALLENGED? CHART A COURSE FOR SUCCESS

The risk exposures, however, have not decreased.

In fact, many exposures are now greater because of the reduced funding for property and vehicle maintenance, as well as reductions in the number of employees. These factors, among other, make it even more difficult to manage and oversee the many responsibilities. Furthermore, the continuing evolution of case law increases the risks that public entities must address, and the liberalization of the courts and juries means that awards are potentially larger than in the past, not to mention legal defense costs that are exploding.

A few of you are experienced risk managers or claims managers, but many of you in the public sector are HR managers, Safety managers, finance managers, or other department managers who have also been given the official or unofficial responsibility of risk manager. This makes it even more difficult for you to set a path for the future, since you did not “cut your teeth” on risk management.

So what is an official or unofficial risk or claims manager to do? How can you manage an efficient and effective program and protect the entity’s funds while sometimes operating on a shoestring with no relief in sight? How do you as a key employee survive and thrive in this environment?

SURVIVING: CHARTING A COURSE

Survival training includes the recommendation that a lost person should not start walking until they first understand where they are. Rushing off into any direction or even on a path that someone else has created is not necessarily a good plan. The same can be said for running a

risk management and claims program. If you are “directionally challenged” by the circumstances, first take stock of where you are. This will be more difficult if you are an inexperienced in risk/claims management, but we will discuss “The Top 10” steps to get your bearings.

THE “TOP 10“ STEPS

There is nothing sacred about these top 10 steps, and it is certainly not an exhaustive list, but the following are some of the more important steps to take.  Meet with your public entity’s senior management to understand their goals and attitudes toward claims management, loss control, and risk management.  Meet with your entity’s department managers to get their input on the risks they face and the challenges for addressing them. They often have an insightful perspective. Even some of your “chronic complainers” can provide useful information.  Talk with your claims manager or third-party administrator. Often they have valuable input about the timeliness of claim reporting and the helpfulness (or lack thereof) of department managers and supervisors which the claims staff contacts while managing claims.  Talk with your legal department, especially if they are involved in claims management.

Public entities use inside counsel a variety of different ways. In some cases legal oversees all claims, in other cases they are almost never involved in claims management, and there are numerous points between these extremes.

Be sure you understand legal’s involvement and perspective going forward, as well as any recommendations legal presents.

These procedures are not a “once and done” proposition, but should be repeated continuously to keep updated on the state of the public entity’s risk exposure and costs. The ongoing review will also help you and senior management provide recommendations to the board on additional ways to reduce exposures or transfer the impact of them.

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PUBLIC RISK | OCTOBER 2016

 Review the most recent loss runs to determine the number and cost of your claims. This will help you to understand the volume of claims and the cost of these claims on an annual basis. Since public entities operate on an annual budget basis, review the older claims that are still open to determine the impact they have on annual payments for the coming budget year and into each year in the future. This is especially true for workers’ compensation Lost Time claims and Liability Bodily Injury claims. If you find that loss data is lacking, contact your claims system vendor or your TPA to identify the standard reports that might be available to you. Then set up some reports using metrics that make sense to you. These will help you establish a baseline to evaluate the current environment and future progress. Some standard reports include: • The number of claims, by type, that occurred during the most recent fiscal year, and the cost of those claim types. For example, • A workers’ compensation report will include the number and costs of Lost Time claims, Medical Only claims, and Report Only incidents (no costs) that occurred or were reported between 7/1/14 and 6/30/15.

• A liability claim report for the same period may include the number and cost of automobile property damage claims (to other vehicles), automobile bodily injury claims, general liability claims, and other liability claims specific to public entities such as law enforcement liability, public officials liability, educational administration liability, wrongful acts, and others.

• A property claim report for the same period of property claims for buildings as well as claims for physical damage (e.g., collision, comprehensive claims) to the entity’s vehicles. Automobile physical damage claims would typically be included under liability claims in the insurance industry, but public entities categorize them as property claims, since they involve damage to the entity’s property. If you should compare your loss history to corporations instead of public entities, be sure to account for this difference.

• The total incurred cost of claims (paid plus outstanding reserves) by a standard unit. For workers’ compensation, this may be by employee or by $100 of payroll, for automobiles it may be per vehicle, etc.

• “Lag” reports which measure the timing of certain actions. For example, how long does it take each department to report new claims from the date of loss or the date they were notified? How quickly does the claims adjuster contact the department representative or the claimant?  Talk with safety/loss control to gather information about the incidents it is seeing, and the recommendations it has set forth to avoid or mitigate these exposures.  Talk with your casualty actuary about the loss trends s/he is seeing, and how your entity’s claims history compares to other public entities, especially if they can provide comparisons to like entities (e.g., school board to school board, water district to water district).  Meet with other public entity risk/claims managers. Whether you represent a city, county, school board, water district, or another type of public entity, you all share a common bond and common issues. Meet with them at the local PRIMA and/or AGRiP meeting, or call and meet them separately if there are no local versions of these groups or long periods between meetings. I have yet to meet a public entity risk/ claims manager who would not be glad to talk and provide advice as well as share comparative data. After all, you are not competitors, but are brothers- or sisters-in-arms.  Identify someone to perform a claims audit to determine if your entity’s claims are being managed properly. This will establish a baseline, and will also identify areas that need improvement so you can act on them promptly.

Schedule follow-up claims audits to measure progress, especially if numerous deficiencies were identified in the initial claims audit.  Based on the claims audit, set up claims management standards, procedures, and expectations to confirm that your claims unit, whether it is a self-administered unit or a TPA, will have a baseline and roadmap for their future actions.

Discuss your findings, conclusions, and recommendations with senior management.

This might occur early in this process, especially if it takes several months to complete the work.

This discussion will ensure that senior management is aware of the various risks and issues to be managed and can hopefully provide needed support on an ongoing basis.

CONCLUSION

These procedures are not a “once and done” proposition, but should be repeated continuously to keep updated on the state of the public entity’s risk exposure and costs. The ongoing review will also help you and senior management provide recommendations to the board on additional ways to reduce exposures or transfer the impact of them.

Some recommendations arising out of the reviews may include: • Determining if the public entity can provide the same level of ongoing services. For example, the entity may decide to close parks if the entity has inadequate funds and/or an inadequate number or employees to maintain and supervise the areas.

• Investigating the advantages and disadvantages of joining a risk pool • Purchasing primary insurance and/or excess insurance for certain aspects of your program

• Selecting a different TPA if the incumbent has deficiencies it has failed to correct within a reasonable time • Creating a more coordinated approach with risk management, safety/loss control, and the departments to better control the incidents and outcomes • Setting up more effective and equitable allocations of claims and insurance costs to ensure that the departments responsible for the largest number of claims and/or costs are responsible for the largest portion of the public entity’s risk management budget.

There are other recommendations that might result from your analysis, but as with all recommendations, you are more likely to obtain help if you are armed with compelling information and a reasoned approach.

Gary Jennings is a principal with Strategic Claims Direction LLC.

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OCTOBER 2016 | PUBLIC RISK

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FASTER GOVERNMENT Rethinking the Risk Equation

In a time of rapid change, being ready to fail early and get past it is essential.

BY WILLIAM D. EGGERS

OCTOBER 2016 | PUBLIC RISK

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FASTER GOVERNMENT: RETHINKING THE RISK EQUATION

T

he minds at Pixar Animation Studios, responsible for an almost unprecedented string

of original hit movies, believe in failure. The philosophy of the studio’s heads is to get all the failures out of the way early, and keep polishing. As President Ed Catmull has written, “Management’s job is not to prevent risk but to build the capability to recover when failures occur.”

That’s not the way things have worked in government. Failure has not been an option.

When America’s greatest government bureaucracy was built up in the 1940s, it was wartime and the consequences of mistakes were dire.

Often processes were conceived and executed by military veterans who associated imperfection with laziness, recklessness and death. After all, you can’t make a mistake with an atom bomb, or planning an invasion, or sneaking a rocket scientist over the Berlin Wall.

You can, however, make a mistake with a government website or other technology system, and there are times when you should. Whether at the city, state or federal level, there’s an increasing realization that failure is essential to the eventual success of a complex technology project. The trick is figuring out how and when to fail.

The reasons for accepting small amounts of risk have to do with the ways government is changing. We’re seeing government agencies adopt a customer focus, moving to prioritize citizens and businesses who use public services.

We’re also seeing a breakdown of walls between agencies and between higher- and lower-level employees. And we’re seeing modular, agile approaches to procurement and development.

These approaches make sense together.

Customer-centric design requires regular testing and updates to refine the user experience.

Agile development, with small, modular gains, permits the kinds of fast improvements that customer-centric design assumes. Changes in governments’ approaches, however, will require their managers and rank-and-file employees to adopt a new mindset. They will have to learn to fail well.

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That won’t be easy. Anne Rung, administrator of the federal Office of Federal Procurement Policy, remarked that one of the key obstacles to procurement innovation is the mindset in government that failure is not an option: “We don’t tolerate any kind of perceived failure. And people immediately walk away and resort to the old way of doing things.”

more likely but are not catastrophic. They’ll just be revised in the next release.

There are obvious reasons to fear failure.

Bureaucracies notice and reward metrics. Failure appears on a record, but quiet mediocrity is safe.

The bias is toward invisibility, documentation and taking credit. And perfectionism has merit. There is value in getting things right the first time. Theoretically, avoiding mistakes is cheaper and prevents a tangled mess when minor imperfections compound into systemic failure. Even in the risk-praising world of software development, it’s known that fast and messy approaches function temporarily, but that excellent design lasts.

First off, technology has made change cheaper. So failure is cheaper. Even processes we don’t think of as technological, such as the organizational structure of a team, can be changed without the expense of typing up and distributing memos.

The conflict is over how to create that excellent design—or, rather, whether excellent, enduring systems are something you design or something you find. Designing a system in its entirety as Step One implies that a team can predict a user’s requirements. But requirements change. Often, it’s difficult to anticipate how actual users will react to or repurpose a product—think of Twitter inadvertently facilitating citizen journalism. Testing becomes essential. Prototypes permit testing.

In some ways, embracing risk is a small change of mindset, from never crossing the line into failure to being willing to tiptoe over it in service of a better end. Detail-oriented execution is still crucial to a project’s success. But in a mindset inspired by agile development, painstaking execution comes on tighter deadlines. Under this pressure, flaws are

Taking risks and welcoming mistakes can create robust products, but that’s not the only reason for a new mentality. The calculus of risk itself is changing: The costs are lower and the rewards are higher.

And we now have the public cloud. Ten years ago, a large IT project might require procuring servers and building a data center to store them before the first line of code was written. Now, the existing remote servers that make up the cloud can simply be repurposed as needed.

“We can [use] them, and turn them right off again-and we have spent almost nothing,” says Mark Schwartz, CIO of U.S. Citizenship and Immigration Services. “It’s a huge enabler for breaking things down into small pieces of work and delivering them quickly into production, so that we can then start immediately tweaking it.”

Not only is failure cheaper these days, it’s more necessary. With the fast pace of change, it’s nearly impossible to predict what citizens will be demanding from their governments in five years. To keep up with those changing needs, an ethic of constant iteration has become essential.

For complex projects with a digital component, flaws are just plain more likely—and a key ingredient for success.

William Eggers is the executive director of Deloitte’s Center for Government Insights.

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PUBLIC RISK | OCTOBER 2016

Preventing

SEXUAL MISCONDUCT in Schools

BY STEPHEN CERRO

I

t is estimated that out of the 50.1 million students in grades K–12 about 4.5 million of them will have encountered some form of sexual misconduct by an educator or employee in the educational system.

That’s almost 1 out of every 10 students!

We know that the vast majority of schools are safe places. We also know that the overwhelming majority of school educators, staff and other school employees are true professionals.

Nonetheless, we still must be willing to confront the issues surrounding and involving sexual misconduct. The fact is that when an incidence of educator sexual misconduct occurs with a child, both the parents and educators are often surprised and blindsided by the event.

Some of these individuals who commit this type of abuse are monogamous and believe that they are in love with the student. Others are “opportunistic predators” who go into the field of education solely to have access to children. Still others are “bad judgement” personalities who do not go

into education to target children, but end up in relationships that meet their emotional needs.

We know that although an offender can be male or female, the majority (80%) are male. Most of the offenders are heterosexual and less than a third of sexual misconduct incidents involve same-sex victims.

A 2004 Education Week study of 1998 information in newspapers and computer databases showed that most offenders were male; most ranged in age from 21 to 75 years of age and were an average age of 28 years.

The victims were primarily female (70%) with an age typically of 14+ years.

OCTOBER 2016 | PUBLIC RISK

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PREVENTING SEXUAL MISCONDUCT IN SCHOOLS

WHAT IS EDUCATOR SEXUAL MISCONDUCT?

Although definitions vary, in general, it is a continuum of inappropriate behaviors. It usually begins with “grooming.”

• Such behaviors range from sexual talk to intercourse • These behaviors are exhibited by an adult within the education system • And are focused toward a student or former student under 18 years of age It includes actions at the level of: • Criminal behavior and child abuse (such as molestation and rape) and • Other non-criminal, yet inappropriate, conduct (such as backrubs and hand-holding) Some of these offenders are sexual predators that is an adult or juvenile who has been convicted of, or pleaded guilty to, committing a sexually oriented offense and who is likely in the future to commit additional sexually oriented offenses.

Here are some characteristics: • They are clever and creative in their schemes • They are willing to invest significant time and energy grooming and targeting children • They volunteer for activities and events that involve children • They can be deemed by the school as “unofficial” volunteers (like friends of the school and/or administrator or coach or teacher who has been volunteering or stopping by to help out—often for years) • They look for possible situations to isolate children

HOW ABOUT SEXUAL HARASSMENT?

Misconduct can also migrate into sexual harassment of the student. Including: • Requiring sexual favors in exchange for some other reward or goal (quid pro quo), such as a higher grade, or; • Creating a hostile environment with the use of sexual comments, jokes, gestures, pictures or; • Other content of a sexual nature unrelated to an approved health curricula, in such a pervasive way as to make a student’s environment unbearable; • Encouraging a child to engage in prostitution or other sexual activity;

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PUBLIC RISK | OCTOBER 2016

• Participating in pornographic photography or video production; and • Conducting sexual relationships with a student or former student under the age of 18.

STRATEGIES WE CAN USE

To develop strategies we need to know and understand the boundaries of appropriate behavior. This not only helps prevent incidents, but also allegations of sexual misconduct.

Acquiring criminal record checks and having written codes of conduct are important.

HOW ABOUT TRAINING?

FOR STAFF: Training outlines behaviors that are not acceptable. It helps educators understand their responsibility in reporting behavior that doesn’t meet these expectations.

In a case study cited in a report by the U.S. Department of Education*, a school teacher was convicted of aggravated criminal sexual abuse of two female students at one school and eight female students at the second. Their failure to report potential child sexual abuse to law enforcement resulted in misdemeanor pleas by the school principal, the school district’s director of human resources and the district superintendent.

FOR STUDENTS: For students we recommend training so that they, too, understand the boundaries that educators and staff cannot cross. Training identifies whom they should report incidents to and what they should do when a school employee, volunteer or other adult crosses boundaries.

INVESTIGATIONS

We know that most sexual relations with students take place in private. Therefore, reporting requirements must address the range of behaviors that cause even suspicion of sexual relations or abuse. Since different people see different parts of the whole picture, it is important to have a team of persons in each school responsible for putting all of the “parts” together to form a complete picture.

Sexual exploitation of a student(s) can be suspected because of a student report, an observation of sexual behavior and/or because of inappropriate sexual or nonsexual behaviors (e.g., flirting or being seen together in unsanctioned social situations, respectively).

Interagency collaboration, at the earliest stage of the investigation, minimizes the tainting of the investigation by other parties as well as trauma to the victim. Furthermore, outside investigations also protect districts from allegations of bias. Unfortunately, in some cases, law enforcement and/or child protective services may decline to investigate. When faced with this situation, school or school district administrative investigations become primary.

Keep in mind that any investigation needs to maintain confidentiality to respect employee’s rights and to reinforce that staff members are innocent until proven guilty.

Once allegations are levied and the investigation begins, the accused and the victim should be kept apart. The accused can be assigned to an office position or placed on paid administrative leave in order to promote a clean investigation.

It is also helpful for the accused to have an advocate throughout the investigative process.

A Prohibition of Retaliation Policy should be in place in writing to protect those who report the suspicious activity.

It is best to select one person to whom all school personnel must report any rumor, allegation, complaint or suspicion. This will help ensure that no student falls through the crack. It will also help identify patterns of misconduct quickly and effectively.

GROOMING

I mentioned grooming at the beginning of this article and simply, and for this discussion, it is a process of identifying and engaging a child in sexual activity. It involves an imbalance of power and elements of coercion and manipulation. It also involves motivation and the intent to sexually exploit the child.

INTERVENTION

If we suspect a child is being groomed, steps should be taken immediately to limit that child’s interactions with the individual in question. In a safe and supportive environment engage that child in a conversation, using age appropriate language, regarding their relationship and interactions with the individual. If it is discovered that a child has been sexually victimized, contact legal authorities immediately for further action.

So how do we know when an adult’s behavior and interaction with a student(s) is appropriate or not?

I’ve found a very helpful listing, courtesy of Seattle Public Schools (2007), Seattle, WA, entitled, Adult Sexual Misconduct: Keeping students and staff safe.

Guidelines for teachers and school personnel: GREEN LIGHT BEHAVIORS These behaviors are appropriate: • Providing humor and friendly comments • Giving compliments that are not overly personal.

• Talking to, treating and touching all students in a consistent manner.

• Making sure, when alone with a student, the door to the room is open and ensuring that you are in plain sight.

• Spending a majority of the time with all and not with one student or a single group of students.

• Making personal contact only in safe-touch areas, which include the shoulders, upper back, arms, head and hands.

• Educating all students and parents about the possibility of educator sexual misconduct while using approved developmental, cultural and socially appropriate materials.

YELLOW LIGHT BEHAVIORS These behaviors may be misconstrued and should be stopped if currently practiced: • Singling out students for favors.

• Giving overly personal cards, notes, e-mail, texts, or yearbook inscriptions.

• Teasing that references gender or contains sexual innuendo.

• Making sexist comments.

RED LIGHT BEHAVIORS These are inappropriate unless specifically part of an education or counseling program: • Touching students frequently.

• Commenting on students’ bodies in an overly sexual manner.

• Being alone in a locked room with a student.

• Talking about student sexuality.

• Meeting students during out-of-school hours and away from the school grounds.

• Lap sitting for students beyond the second grade.

OPERATIONAL CHANGES

Before something happens, understand the risk exposure, identify all of the vulnerable areas and assess our programs, operations and activities.

Including: • Conducting an inventory of programs and activities that involve students.

• Identifying all vulnerabilities, for example: • Complaints and/or situations have been ignored.

• A deficiency in following policies and/ or procedures that address complaint handling.

• Ignoring reasonable suspicion whereby activities or circumstances point to misgivings about the appropriateness of the situation.

• Background checks conducted once and not on a periodic basis.

• We occasionally see “special situations” being allowed with legacy programs or arrangements. This often involves students in isolated situations with an adult.

We have also seen the following: • A lack of enforcement of policies and procedures such as with transportation and supervision • The lack of enforcement of disciplinary procedures, especially the unequal application of disciplinary procedures.

• Certain staff members or alumni are held in higher regard than the law or school district policies. This called the “Pedestal Syndrome”.

• In other cases, it can be a cultural vulnerability, where political or financial pressures tend to trump common sense and/or ethical integrity.

Administration: Claim trends such as harassment complaints leading to claims involving a staff person or educator.

School security: Are there access and entry vulnerabilities? It is recommended that there should not be open access by staff to all buildings and facilities.

Special events: After school programs. Even community outreach programs may have inherent vulnerabilities that may come to light.

Transportation: Do we allow one-on-one transportation situations like allowing a teacher to drive a student home after school or a allowing a coach to drive a student to and from a game? How about allowing an educator to take a student sky diving? Yes, we recently had this request come up.

There should be policies against unrestricted access of social media between students and staff/ teachers/interns and/or volunteers. In fact, we go further in stating that monitoring of social media is a very good practice.

Federal background checks for all employees and volunteers are preferred to State background checks. Other programs where background checks are important include adults and employees involved with and supervising youth programs at the school, daycare, and latchkey kids.

There are also vulnerabilities related to access and entry. These include such exposures as: • Unrestricted public access • Not limiting access—particularly to private, remote areas • Poor key and code control

Although this article doesn’t cover every aspect of sexual misconduct in or on school premises, it does give us some basic understanding of the problem. It also identifies the importance of communicating behavior expectations to all school staff, having parents more involved with their children, and identifying vulnerable areas of school operations, programs and activities.

WE SHOULD ALSO BE LOOKING AT:

Stephen Cerro is a risk control coordinator with Wright Specialty Insurance.

The Human Resources Department: Any stale or antiquated policies such as for social events?

Finance Department: Changes in program funding. This could result in a reduction in training. It could also highlight some small special project(s) or program(s) that may isolate a student with an educator.

REFERENCE U.S. Department of Education titled: Educator Sexual Misconduct: A Synthesis of Existing Literature, (Shakeshaft, 2004) http://www2. ed.gov/rschstat/research/pubs/misconductreview/report.pdf

OCTOBER 2016 | PUBLIC RISK

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