Controlling High Risk Exposures for Municipalities

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Controlling High Risk Exposures for
Municipalities
2005 NYCOM Annual Meeting

• Gideon Putnam Hotel
• Saratoga Springs, NY
• PRESENTERS
• Robert Bambino and Brett Carruthers
• NY Municipal Insurance Reciprocal
• Avis Spencer, Esq.
• Congdon, Flaherty OCallaghan
•  

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What Well Cover

• Law Enforcement Liability
• -- Results of NYMIRs Law Enforcement Assessment
  Project
• Employment Practices Liability
• -- Exposures and Risk Control

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Law Enforcement Liability

• Law Enforcement Challenges
• Accreditation
• Policies/Training
• Force Issues
• Pursuit
• Civil Rights Violations

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Accreditation

• NYS Division of Criminal Justice Services Program
• 130 Standards for Assessment
• Increased Professionalism
• High Quality Policies and Programs
• Significant Recognition

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Policies and Training

• Policy Review/Update
• Use of Force NYS Penal Code Article 35 and
  Saucier v. Katz (99-1977) 533 U.S. 194 (2001) 194
  F.3d 962.
• Pursuit Jones v. United States (97-6203) 526
  U.S. 227, 119 S. Ct. 1215 (1999) 116 F.3d 14 and
  County of Sacramento v. Lewis (96-1337) 523 US
  833, 118 S. Ct. 1708 (1998).
• Domestic Violence
• Blood borne Pathogens 29 CFR 1910.1030

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Use of Force Issues

• NYS DCJS Article 35 Training
• Firearm Qualification
• Firearm Deployment
• Less Than Lethal Weapon Deployment
• Use of Force Policies
• Use of Force Paradigm

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Pursuit

• Annual Training and Policy Review
• Consistency
• Stop Stick Deployment
• Road Blocks
• Other Tactics
• Pursuit Termination

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Civil Rights Violations

• Treatment of Individuals
• Strip Searches
• Paul Marriott, Barbara Davis and Andy Rivera vs.
  County of Montgomery, County of Montgomery
  Sheriffs Department

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Law Enforcements Assessments

• 20 Agencies
• 10 Agencies Small Cities and Villages
• Loss Leaders False Arrest Civil Rights
  Violations and Force

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Findings

• Claim Results
• 70 closed with no indemnity payment made.
• 15 closed with no indemnity or expense payment
  made.
• 15 closed with indemnity payment and expense
  payment made.

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Findings

• Strip Searches
• Recommendations for Policy Development or
  Revisions made in several instances.
• Most take risk transfer approach.

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Recommendations

• Expand Several Informal Information Exchange
  Programs
• Continued Monitoring of Loss Leaders
• Monitoring and Analysis of Strip Searches
• Monitoring of Lateral Hiring Practices
• Risk Management for Patrol Officer Program

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Employment Practices Liability
NYMIRs Loss Experience Public Officials Policy

• Leading Losses by Severity Dollars Paid
• Violation of Civil Rights
• Employment Discrimination
• Land Use
• Breach of Duty

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Employment Practices Liability

• Within breach of duty, violation of civil
• rights and employment discrimination
• Sex Harassment
• Other forms of illegal harassment
• Sex Discrimination
• Age/Disability Discrimination

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Sources of Legal Liability

• Title VII of the Civil Rights Act
• (Title VII - 42 USC Sec. 2000e, et seq.)
• Employment discrimination on the basis of race,
  color, religion, sex (including pregnancy) or
  national origin
• Prohibition on discrimination includes a
  prohibition of harassment based upon any of the
  above-stated protected characteristics
• Retaliation against an individual for filing a
  charge of discrimination, participating in an
  investigation or opposing discriminatory
  practices
• Title VIIs prohibition on discrimination also
  includes a prohibition on harassment based upon
  any of the protected categories set forth above

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Employment Actions that may Trigger Claims under
Title VII

• Failure to hire
• Termination
• Discipline Actions
• Contract Termination

• Demotion
• Transfers
• Application of benefits

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Other Federal Laws

• 42 U.S.C. Section 1983 (Civil Rights Act of 1871)
  
• Prohibits conduct which violates a right secured
  by the
• Constitution of the United States, and which was
• committed by a person acting under color of state
  law.

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Other Federal Laws

• Age Discrimination in Employment Act
• (ADEA 29 USC Sec. 621-34)
• Involves people above 40
• Prohibits discrimination or harassment based on
  age
• Americans with Disabilities Act (ADA)
• (ADA - 42 USC Sec. 12101, et seq.)
• Discrimination or harassment against a qualified
  individual with a disability, or against a
  non-disabled individual because of his or her
  association with an individual with a disability.

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Smith v. City of Jackson

• The US Supreme Court opened the door for
  older
• workers to bring age discrimination claims
  against their employers based on a theory of
  disparate impact
• During a downsizing, make sure that it isn't
  going be heavy-handed against any particular
  group
• 125 S.Ct. 1536 (2005)

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NYS Human Rights Law

•  Prohibits employment discrimination based upon
  age, race, creed, color, national origin, sex,
  disability genetic predisposition or carrier
  status or marital status
• (NYS HRL - N.Y. Exec. L. Sec. 296)

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EPL Pitfalls

• Number Eight Improper Resolutions
• Number Seven Breach of Confidentiality
• Number Six Biased Investigations
• Number Five Indifferent Work Environment
• Number Four Not adopting EPL policies
• Number Three Failure to distribute policies
• Number Two Ignoring Complaints
• Number One Retaliation

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Challenges for Administrators

• Reductions in Force
• First Female Employee
• First Employee in Protected Class
• Collective Bargaining Disputes
• Political Disputes

• Problem Employees/ Managers
• Pregnancy Leaves
• Untrained supervisory personnel

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EPL Risk Control

Control Method Action
Update and widely distribute anti-harassment/ discrimination policies Include seasonal and second/ third shift employees - keep records
Intake persons should be male and female Dont limit to immediate supervisor
Respond to all employee complaints Including confidential complaints

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Basic Risk Control Techniques
Control Method Action
Train first-line managers Especially with regard to hiring and firing promotion and failure to promote demotion discipline change in benefits, etc.
Burlington Industries, Inc. v. Ellerth, 118 S.
Ct. 2257 (1998), and Faragher v. City of Boca
Raton, 118 S. Ct. 2275
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Basic Risk Control Techniques
Control Method Action
Prevent retaliation against complainants and others who participate in an investigation or proceeding Monitor work environment Speak with parties Respond promptly to complaints
ADA Accommodating employees with intellectual disabilities Exchange non-essential job functions Read or interpret application materials Provide additional training time and/or guidance
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Questions?

• Presentation will be on NYMIR Web Site
• www.nymir.org
• Go to Risk Management Section then
• Seminar Materials and Information