From the Board Room...

At the September 22, 2003 Quarterly Board Meeting, the following actions were taken:

- Approved Investment Services Agreement with Bond-Tech and authorized the Executive Director to execute the agreement

- Approved the amended Cash and Investment Policy

- Approved the Financial Audit for the year ended December 31, 2002

- Approved the new three-year agreement with Godbold, Malpere & Co. for actuarial services and authorized the Executive Director to execute the agreement

- Approved MVRMA's 2003 Application for AGRIP Advisory Standards Recognition (a requirement of NPX and GEM)

- Approved MVRMA's 2004 Preliminary Budget

- Approved the amended Park Shelter Reservation Fee Policy

- Approved the new Law Enforcement Accreditation Reimbursement Policy

- Approved the new PERI Data Supplier Agreement and authorized the Executive Director to execute the agreement

- Approved the City of Englewood's membership in MVRMA if the city accepts MVRMA's proposal

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FYI:

-Mike Hammond

While reviewing a number of articles I have saved during the last three years, I came across one in particular I thought was worth sharing in this issue of Risky Business. The article was written by Jeffrey Chasen of the AGOS Group, a company which provides workplace risk management products and services to employers. Mr. Chasen presented the article as a public service for a Public Risk Institute (PERI) symposium.

In his article, titled "Discrimination & Harassment in the Workplace," Mr. Chasen identified five essential strategies for smarter risk management. The key points raised in his article are worthy of further consideration by all public entity employees and organizations. These strategies will help you protect your organization, your employees and yourself.

Core Principle #1- No Tolerance for Workplace Wrongdoing - You cannot afford to tolerate workplace wrongdoing. Managers cannot allow or condone discrimination and/or harassment by others. Managers must set a positive example of "no tolerance," as well as act as an obstacle to others who may commit such wrongdoing under their watch. Although this principle is important, it is equally important to never rush to judgment. The employee’s rights must be protected, and any punishment must fit the offense.

Core Principle #2- Observation - Be on the lookout for risk and wrongdoing. For example, it is helpful to: provide careful observation in hiring; regularly inquire about employees’ well- being and job satisfaction; recognize that even the smallest hint of risk or wrongdoing deserves immediate attention; and keep in mind that discrimination can occur at any time and even in the best organizations.

Core Principle #3- Communication - Quick and decisive communication can prevent risk and wrongdoing from spreading throughout your organization. Make it clear that your organization does not tolerate discrimination and harassment. Also, make sure that employees feel comfortable in discussing their concerns. When a concern arises, be mindful of the privacy rights and interests of all parties.

Core Principle #4- Empathy - Identify with your employees so you can understand their feelings and needs. It can be as simple as trying to place yourself in your employees’ shoes.

Core Principle #5 - Fairness - Fairness begins with respect and dignity for all employees. It demands that you uniformly and consistently apply laws, rules, policies, procedures and practices.

Discrimination and harassment are costly to an organization. They injure employees, foster poor morale, reduce productivity and expose an organization to costly losses – money, time, energy and even employees.

The focus must always be the prevention of risk and wrongdoing. However, once a problem arises, an organization must act with no tolerance for such wrongdoing, maintaining proactive observation and communication along with a commitment to empathy and fairness.

You can make a significant difference for your organization, your employees and yourself by asking three questions:

1. Are there any warning signs in my workplace for possible discrimination, harassment or other forms of wrongdoing?

2. What new risks seem to be emerging that can possibly be prevented before they arise?

3. If I were affected by this type of problem, how would I want the organization to respond?

Good employees are your organization’s greatest assets. By following the five core principles discussed in this article, you can help protect those assets. MVRMA offers CD-Rom training programs and videos as well as specialized classroom training to assist you in this effort.

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Counselors' Comments

 - Surdyk, Dowd & Turner

Ohio Supreme Court Overrules its 1999 Decision and Finds that Approval of Final Development Plan for PUD is an Administrative, Non-referendable Act

In a Per Curiam Decision, the Ohio Supreme Court in State ex rel. Commt. for Referendum of Ord. No. 3844-02 v. Norris, 99 Ohio St.3d 336, 2003-Ohio-3887, overruled its prior decision in State ex rel. Crossman Communities of Ohio, Inc. v. Greene Cty. Bd. of Elections (1999), 87 Ohio St.3d 132.

The Norris opinion arose from a lawsuit involving the Waterbury Development in the City of North Ridgeville. In October of 2000, the City Council enacted an ordinance which approved a preliminary development plan for a Planned Community Development ("PCD") known as Waterbury. Thereafter, on September 16, 2002, the City Council enacted Ordinance Nos. 3844-2002 and 3845-2002, which adopted the final development plans and final plats for the Andover and Chaddwyck portions of the Waterbury PCD. In response, a committee was formed with the purpose of circulating referenda petitions to allow these two ordinances to be submitted to the electors at the next election. After the petitions were submitted, the City Council, at the recommendation of the law director, neither repealed the ordinances nor submitted them to the electorate. The committee then filed this action for writ of mandamus.

The primary issue raised in this case was whether the enactment of Ordinance Nos. 3844-2002 and 3845-2002 constituted legislative or administrative actions. If the actions were legislative, they would be subject to referendum, whereas if they were determined to be administrative, they would not. The Norris Court cited several previous decisions by the Supreme Court in which the Court discussed PUDs, Gray v. Trustees of Monclova Twp. (1974), 38 Ohio St.2d 310, Peachtree Dev. Co. v. Paul (1981), 67 Ohio St.2d 345 and State ex. rel. Zonders v. Delaware Cty. Bd. of Elections (1994), 69 Ohio St.3d 5. In each of these cases, the Court held that the implementation, creation or change to a PUD is a legislative act. However, in Zonders, the Court further held that where property is already zoned PUD, approval of subsequent development to be in compliance with the existing PUD is an administrative act.

In applying this existing caselaw to the situation in North Ridgeville, the Court held that the PUD was implemented when it was applied to the Waterbury property in October of 2000, which was a legislative act. However, the enactment of Ordinance Nos. 3844-2002 and 3845-2002 applied pre-existing PUD regulations to the property to determine whether the final development plan complied with these requirements. As such, adoption of those ordinances was an administrative act.

Further, the Norris Court criticized its own prior decision in Crossman Communities, stating that it "consider- ably blurs the line between what is legislative and what is administrative." The Crossman Communities decision stated that a city council's resolution adopting a final development plan for a PUD constituted a legislative act. The Norris Court explicitly overruled that decision, finding it was not consistent with the holdings in Zonders, Peachtree and Gray. Therefore, an action approving or adopting a final development plan in a PUD is now considered an administrative act that is not subject to referendum.

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The Claims File

- Craig Blair

As you know, some claims cannot be resolved due to conflicts on either settlement or legal issues. When this occurs, the claim generally becomes a lawsuit. Historically, about 65% of the lawsuits filed against our members have been dismissed by the court with the rest generally settled short of a trial. When the occasional case goes to trial, it is generally because the other party's settlement demand is unreasonable, or the member city has legal defenses we believe will prevail.

In March 2003, the Jones vs. City of Kettering lawsuit went to trial before a jury. In this case, the plaintiff (Mr. Jones) attended a concert at the local ampitheatre. Facts surrounding the incident were disputed, but the plaintiff was charged with resisting arrest, assault and disorderly conduct. Mr. Jones pleaded no contest to the resisting arrest and disorderly conduct charges, and the assault charge was dropped as part of the plea. The plaintiff subsequently filed a lawsuit alleging excessive force during the arrest and violations of his constitutional rights. He named several police officers and ampitheatre employees in the complaint.

The plaintiff alleged he had been wrongly asked to leave the concert, and during his subsequent arrest, the police officers and crowd management staff used excessive force resulting in scrapes and bruises to his face and knee. He claimed he later required treatment for post traumatic stress disorder.

Defendants contended the plaintiff sneaked into the event, had been standing in the aisle and could not produce a ticket when asked. The defendants further stated the plaintiff was intoxicated and pushed one of the concert staff when asked to leave. They also testified Mr. Jones swung at one of the officers when asked to move his car that was illegally parked. Defendants stated the force used during the arrest was appropriate under the circumstances.

After a week-long trial, the jury deliberated for seven hours and returned a verdict in favor of all defendants. This case is consistent with the MVRMA philosophy that we will pursue all legal defenses before settling out of a case.

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Loss Control Lowdown

-Starr Markworth

Yes, OSHA Does Apply to Your City

MVRMA recently sponsored a training session with our regional consultant from the Public Employment Risk Reduction Program (PERRP) that addressed OSHA and how it applies to local governments in the State of Ohio. I found this seminar very informative and will pass on the highlights to those of you who could not attend.

With the ratification of Ohio House Bill 308 in December 1992, PERRP went into effect. The purpose of the program is to ensure that public employees are provided with a safe and healthy working environment. Prior to PERRP, only state agencies, under an executive order first enacted in 1973 and updated in 1982, were held responsible for the occupational safety and health of their respective employees. House Bill 308, therefore greatly expanded the responsibility of all public employers in Ohio as it extends safety and health coverage to approximately 600,000 employees across the state. However, House Bill 308 exempts peace officers, fire fighters and correctional officers in county or municipal correctional institutions from coverage (see Ohio Revised Code 4167 for more details on PERRP).

PERRP consultants are available for "no fee, no risk" on-site safety inspections, safety training and hazard recognition at the employer's request, for all public employees except firefighters, peace officers, EMTs, paramedics and correctional officers, in order to assist with compliance of all safety and health standards.

Citations are issued only if there is a fatality at your city or if a city employee refuses to work due to unsafe conditions and reports it to PERRP. Public employers are required to post PERRP posters in areas where there is employee traffic to inform them of their right to work in a place free from recognized hazards. Posters are free of charge and can be requested by visiting PERRP's website: http://www.com.state.oh.us/, click on Labor and Worker Safety, PERRP, then on the Free Posters icon.

PERRP, through a comprehensive safety and health consultation, strives to ensure a safe and healthy workplace for all public employees. In conjunction with responsible management, PERRP identifies actual and potential hazardous conditions, reviews required written programs (bloodborne pathogens, hazard communication, confined space, etc.) and will prepare a detailed report for the employer to assist in developing specific programs and abatement methods.

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Brokers Beat

Why have a safety committee? Organizations with an effective safety committee have historically performed better than their peers who do not have one. That is to say they have fewer accidents, claims and claim dollar expense. This translates into lower insurance costs and improved employee morale. With that in mind, let's focus on what makes a committee an effective one.

Anyone can start a safety committee, but, to make it effective, the committee must be built on a foundation of management commitment and must be accountable for achieving its goals. Then the committee must do the following:

• Involve employees in achieving the committee’s goals.

• Identify workplace hazards.

• Review reports of accidents and near misses.

• Keep accurate records of committee activities.

• Evaluate its strengths and weaknesses.

1) Commitment - The committee won’t survive without management support. Management demonstrates support by encouraging employees to get involved in achieving a safe, healthful workplace and by acting on the committee’s recommendations. Representatives demonstrate commitment by attending committee meetings, following through on their assigned tasks and encouraging other employees to get involved in identifying hazards.

2) Accountability - Representatives should understand that the committee expects them to contribute; each representative shares responsibility for accomplishing safety committee goals, which benefit everyone who works for the city. The safety committee is also responsible for monitoring how management holds employees accountable for working safely and for recommending ways to strengthen accountability.

3) Employee involvement - To become effective, a safety committee needs help from everyone in your city. The safety committee must have a method for employees to report hazards and to offer safety suggestions. The following is a list of ways the safety committee can encourage employees to get involved:

• Encourage employees to report hazards and unsafe work practices.

• Act on employee suggestions and recognize their contributions to a safer workplace.

• Promote the committee’s activities and accomplishments.

Tell employees why you’re starting the committee; describe its role in the city’s safety-and-health program and explain management’s commitment to the committee.

4) Hazard identification - The safety committee plays an important role in keeping the workplace hazard-free.

• Ensure that representatives know how to recognize hazards and understand basic principles for controlling them.

• Focus on identifying hazards and unsafe work practices that are likely to cause serious injuries.

• Conduct thorough workplace inspections at least quarterly.

• Document hazards during quarterly inspections, and discuss how to control them at regular safety committee meetings.

• Include employer and employee representatives on the inspection team.

5) Accident investigation - The committee must have a procedure for investigating all workplace accidents, illness and deaths. The committee should also carefully review accident reports to help management identify accident causes and determine how to control them.

6) Record keeping - You may not think of record keeping as an essential activity, but accurate, well-organized records document the committee’s accomplishments and can inform the committee what it needs to do to improve. The following documents are required for the safety committee’s file:

• Accurate minutes of each safety committee meeting

• Committee reports, evaluations, and recommendations

• Management’s response to committee recommendations

• Employee safety suggestions and hazard concerns

7) Evaluation - Evaluation answers the question "Are we effective?" Effective safety committees periodically evaluate their strengths and weaknesses, and the evaluation helps its members set new goals. At least once a year, schedule a half-day safety committee meeting to identify the committee’s achievements over the past 12 months, review essential activities and set goals for the next 12 months.

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Coming Events

October - November

Supervisory Training Program

Managing Contractor and Leased Employees in Safety

9:00 - 11:00 AM

MVCC

Sexual Harassment

9:30 - 11:30 AM and 1:00 - 3:00 PM

Jewish Center in Centerville

Electrical Safety and Lockout Tagout

8:30 - 11:30 AM and 12:30 - 3:30 PM

MVCC

Heavy Vehicle Driver Training

8:00 AM - 4:00 PM

Miamisburg Mound

Snow & Ice Control

8:30 - 11:00 AM and 12:30 - 3:00 PM

MVCC

Snow & Ice Control

8:30 - 11:00 AM and 12:30 - 3:00 PM

Mason

Heavy Vehicle Driver Training

8:00 AM - 4:00 PM

Miamisburg Mound

Snow & Ice Control

8:30 - 11:00 AM and 12:30 - 3:00 PM

Tipp City

Annual Legal Update

1:30 PM

Jewish Center in Centerville

MVRMA Board Meeting

9:00 AM

MVRMA Offices

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Members in the News

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