FYI:

Managing Law Enforcement Risks

- Michael Hammond

Police departments have come under intense public scrutiny and are often the targets of lawsuits. When police fail to perform their duties, perform them negligently or abuse their authority, the possibility of civil liability exists. This liability extends to issues of failing to properly train, investigate and discipline police officers.

With over 30,000 civil actions filed against police each year, where between 4-8% are settled unfavorably, police departments need to take a more proactive approach to liability. Unfortunately, some police agencies have fallen into the reactionary mode of only addressing conduct after it has occurred.

A more proactive approach would include a review of the department's polices, practices, procedures and training. Such an assessment should involve trained assessors who will examine existing written policy and agency operations. These reviews should be made by comparing the policy and practice with recognized law enforcement standards. By following such an approach, an agency should be able to decrease its liability while enhancing the professionalism of the department and improving public confidence.

The Commission on Accreditation for Law Enforcement Agencies (CALEA) provides the vehicle for the proactive approach to managing law enforcement risks. CALEA was formed to develop a set of law enforcement standards and to establish an accreditation process that would demonstrate that accredited police departments meet professionally recognized criteria in law enforcement.

The major benefits of accreditation include: 1) controlled liability insurance costs, 2) stronger defense against lawsuits and citizen complaints, 3) greater accountability within the department, 4) increased support from government officials and 5) increased community advocacy.

Law enforcement accreditation is voluntary on the part of the agency. Some police departments are not interested in achieving or maintaining accreditation because they believe the cost is too high, or they "can't afford it." But does accreditation really cost too much, and does it really raise the standards in order to reduce the risks for law enforcement agencies?

Two recent risk management studies by state league sponsored self-insured pooling organizations indicate accreditation significantly reduces the risk factors associated with police operations. In December 2002, the Tennessee Municipal League (TML) Risk Management Pool compared the loss experience of accredited and non-accredited agencies who were members of TML. The agencies' loss experience was examined for an eight year period. As a result of their analysis, the TML concluded that encouraging police agencies to seek standardized practices and policies through accreditation was a cost effective investment of time and resources. Their analysis showed the annual loss rate (claim cost) for accredited agencies was less than the non-accredited departments as follows: Workers' Compensation - 18.8% less; Law Enforcement Liability - 11.0% less; Police Auto Liability - 31.4% less and Police Auto Physical Damage - 58.3% less. The summary further states "accreditation provides individual departments with fewer injuries, fewer damaged vehicles and less financial resources being spent on legal defense costs resulting in a sound financial benefit."

The Colorado Interlocal Risk Sharing Agency (CIRSA) conducted a second study in 2002 comparing claims of 22 accredited police departments with claims of 22 non-accredited departments for a three year period. The following results revealed accredited departments had:

l 8.3% fewer property/casualty claims per full time police officer

l 52.2% lower incurred costs per officer for property/liability claims

MVRMA conducted a similar study in 1998 analyzing 10 years of loss data for its member police departments. This study revealed that accredited departments averaged 42.2% less claims cost per officer per year than non-accredited departments. The MVRMA study concluded that law enforcement accreditation makes good, solid financial sense through reduced cost of litigation and claims cost. All three studies report a positive correlation between CALEA accreditation and loss reduction.

Of MVRMA's 17 members, eight have achieved law enforcement accreditation through CALEA, and another is currently undergoing the accreditation process. We acknowledge, however, that not every police agency can become accredited due to lack of financial resources or manpower to dedicate to the process. At a minimum, for those agencies that do not go through the accreditation process, we recommend they adopt written directives in 22 critical areas of police operations (contact MVRMA for more information). For the agencies that do become accredited, these studies reveal it will significantly impact their ability to prevent and reduce loss in the area of police liability. Accreditation results in effective risk management for police agencies!

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Counselors' Comments

 - Dinsmore & Shohl

In a 4-3 decision, the Ohio Supreme Court affirmed the constitutionality of Ohio's Sovereign Immunity Statute and broadened the definition of what constitutes an "emergency call" under O.R.C. Section 2744 to include those situations where a response by a peace officer is required by the officer's professional obligation. In so holding, the Court rejected plaintiff's argument that only responses to "inherently dangerous" situations qualify as emergency calls. Colbert v. City of Cleveland, 99 Ohio St. 3d 215 (July 9, 2003).

In Colbert, two Cleveland police officers on patrol in an area which had a reputation as a "high-drug, high-crime area" observed two males in a car make an apparent exchange for money with another male on foot. Believing they had just witnessed a drug deal, the officers started to pursue the suspects' car on a parallel route, but they did not activate their emergency lights or siren, or call for back-up. When the patrol car reached an intersection, the driver of the police vehicle stopped and looked both ways, but upon entering the intersection, was struck broadside by another vehicle. The injured driver of the other vehicle sued the City, and at the trial court level, summary judgment was granted in favor of the City on the basis that as a political subdivision, the city was immune from liability because the officers were responding to an "emergency call." On appeal, the Eighth District affirmed.

Before the Ohio Supreme Court, plaintiffs argued that in drafting Section 2744.01(a), the Ohio legislature intended that only those calls to duty that concern "inherently dangerous" situations qualified as "emergency calls." In rejecting that argument, the Ohio Supreme Court noted that a "duty" is defined as "obligatory tasks, conduct, service or functions enjoined by order or usage according to rank, occupation or profession." Therefore, the Ohio Supreme Court concluded that a "call to duty" involves any situation "to which a response by a peace officer is required by the officer's professional obligation." Applying this definition, the Court held that "the officer's investigation of the men suspected of dealing drugs was an 'emergency call' as that term is defined in O.R.C. 2744.01(a)."

While the expanded definition of what conduct constitutes an "emergency call" is certainly good news for police officers, the significance of the Colbert decision is much broader. In prior decisions, several justices of the Ohio Supreme Court made explicit comments indicating that if squarely presented with the question, they would declare Ohio's entire Sovereign Immunity Statute unconstitutional. Therefore, when the Court agreed to accept the discretionary appeal from the 8th District in Colbert, the question became whether there were enough votes on the Court to completely eliminate Section 2744. However, with the definitive decision on the issue in Colbert, the constitutionality of Ohio's Sovereign Immunity Statute seems to be secure, at least until the next change in the Court's membership.

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The Claims File

- Craig Blair

For years, municipalities have been able to use the "open and obvious" doctrine as a defense for claims that range from potholes to slip/trip and falls. This defense is also available to the public in defending premises liability claims. In recent years, the appellate courts across the state have been moving toward allowing a jury to decide if an alleged hazard was indeed open and obvious versus applying legal doctrine standards that have been upheld by previous court cases. In Armstrong v. Best Buy, the plaintiff sued for an injury from tripping on a shopping cart guardrail inside the store. The plaintiff admitted nothing obstructed the view of the rail, but based on an expert's report submitted by the plaintiff, the lower courts denied the motion for summary judgment. However, the Ohio Supreme Court ruled in Best Buy's favor, thus confirming the "open and obvious" doctrine remains a defense that provides a complete bar to recovery in premises liability claims. The court stated that due to pictures provided of the scene, the rail in question was indeed open and obvious to all persons entering or exiting the store. When the view is unobstructed, the condition itself serves as warning for an individual to exercise due care to avoid an accident. This ruling gives clear direction to the appellate courts in Ohio on how to interpret an "open and obvious" defense and confirms for municipalities and property owners they will be entitled to summary judgment, if the alleged hazard is an open and obvious condition.

What supported the open and obvious defense in the Best Buy case were the photographs taken of the scene (rail) as it existed at the time of the incident. Having photographs of an alleged hazard is very important. When a city receives a call concerning a "hazard" or dangerous condition, it is generally because an individual has suffered some type of loss. If the "hazard" warrants concern, the city should secure the area and report the incident to MVRMA. In most cases, we can review the scene and take measurements and pictures the very next day. While this may cause a short delay in any repairs, it may be necessary to properly protect the interests of the city.

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Loss Control Lowdown

-Starr Markworth

With the fatal shootings at the Lockhead Martin Plant in Mississippi in July, the phenomenon of workplace violence has emerged once again in the news. In this case, shooter Doug Williams left a meeting after getting aggravated and returned with a shotgun and a rifle. He proceeded to shoot up the meeting room, killing two and injuring nine; he then continued onto the factory floor, killing three more co-workers before turning the gun on himself. Williams had a reputation for having a bad temper, talked about wanting to kill people and had used racial slurs and made threats against African-American co-workers. He also had undergone anger counseling at least once in the past couple years. This case will be interesting to follow to see if the past history of Williams at the workplace will fuel a lawsuit claiming the company negligently retained an employee who had a history of dangerous conduct.

According to the Bureau of Labor Statistics Census of Factual Occupational Injuries, there were 674 workplace homicides in 2000, which accounted for 11% of the total 5,915 fatal work injuries in the United States. Workplace violence is our country's third-leading cause of fatal occupational injury.

It is important for managers to be able to identify the potentially problematic employees and deal with them before any violence takes place. A background check should be performed on every individual before hiring, including a criminal records check.

Workers who tend to be loners with emotional problems, career frustrations, antagonistic relationships with others and some types of obsessions - such as political, racial or sexual fixations - are also more likely to have an outbreak of violence at work.

Warning signs that a violent outbreak could occur include threatening or hostile behavior, performance problems, interpersonal or emotional problems or indicators that the person is suicidal.

A written policy about violence, harassment and other unacceptable behavior is very advantageous to your city. It will inform employees of behavior management considers inappropriate and unacceptable in the workplace, what to do when incidents covered in the policy occur and contacts for reporting any incidents. Knowing that management is committed to dealing with these problems, employees will be more likely to report incidents involving harassment, violence or other unacceptable behavior.

MVRMA has several workplace violence videos as well as a CD-ROM training program in the video library. Please contact me if you are interested in borrowing one of these programs or if you would like assistance in developing a workplace violence policy.

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Brokers Beat

Crisis Readiness

Crisis Readiness means knowing what to do and how to do it with a team that is practiced and ready. It means acting immediately to minimize damage to public perception. It means taking ownership of your community to ensure safety, security and control, without interrupting services. Crisis Readiness is the mark of proactive leadership -- and is now a defined standard for sound governance.

The goal of crisis planning is to give your city the capability to manage well any crisis it faces. Since no one can know precisely what will trigger the next crisis, good crisis planning establishes a self-sustaining foundation for knowing what to do and how to do it.

Crisis readiness is a tested set of capabilities that not only validate a crisis management plan, but serve to strengthen management's confidence in its ability to seamlessly transition from its normal activities to crisis mode and back.

A reputable Crisis Consulting Practice can help develop the robust operating capability to prevent, prepare for, respond to and recover from crises. The four essential steps of this integrated and comprehensive process include:

l Prevention - This step will address risk and vulnerability analysis and a defense strategy. Assessments will also be completed regarding capabilities and the organizational culture.

l Preparation - Will include the development of a crisis strategy as well as exercise and drill preparation. Specifically, continuity planning, humanitarian services and computer security planning will be reviewed at this stage.

l Response - Execution plans for the City Manager/Mayor and all management will ensure an integrated and comprehensive response. From the management perspective, crisis communications and the management of human impacts will also be considered during this phase.

l Recovery - This portion addresses services recovery, financial recovery and human impact recovery. Reviews will include claims advisory, insurance recovery (claims accounting and preparation), and crisis counseling.

Having a sound and tested crisis management plan in place is both an operational and a governance best practice. Those organizations that have such plans in place avoid long term damage to their reputation and public trust. Crisis management preparedness can minimize potential distraction and opportunity cost.

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Coming Events

Hazard Communications

Session I 8:30-11:30

Session II 12:30-3:30

MVCC

AGRIP Institute for Management

and Leadership

Tucson, AZ

Respiratory Protection 8:00-10:00 am

Trenching & Traffic Safety 10:15-12:15

Security Issues for Water & Wastewater Plants 1:15-3:15

MVCC

MVRMA Quarterly Board Meeting

9:00 am

MVRMA Offices

Sexual Harassment

Time and Location TBA

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For the loss year ended December 31, 2002, the Overall Award for the lowest dollar losses per full-time employee was awarded to the City of Wyoming with losses of $7.71 per employee. The runner-up award was presented to the City of Vandalia with losses of $44.30 per employee.

Individual department winners (each with zero losses) were as follows:

Departments recognized with three or more consecutive zero loss years were the following:

Police	Tipp City and Wilmington (3 years)
Parks & Recreation	Madeira (8 years) Springdale (3 years)
Water & Wastewater	Vandalia (9 years) Miamisburg & West Carrollton (4 years)

The only cities that qualified for the Standard of Excellence (losses of $100 or less per employee) were the overall winner Wyoming and the 2002 runner-up Vandalia.

Congratulations to all our winners and all departments that ended the year with zero losses. Enjoy your celebrations and take pride in your loss record. 

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SPEC Awards

At the June Board Meeting, Ms. Markworth presented the 2003 SPEC Awards. SPEC (Safety Performance Evaluation Checklist) is an annual safety and loss control audit conducted for each member city. Members are rated by percentage of compliance with recommended policies and procedures. An Ascension Award is given to the city with the most improved compliance, and the Pinnacle Award is presented to the city with the highest percentage of compliance.

This year's Ascension Award went to the City of Vandalia which improved its compliance 10.33%. The Pinnacle Award was presented to two cities, both of which had 100% compliance, the Cities of Troy and Vandalia. This was Troy's third straight year with a perfect score! We're very proud of both cities and applaud their attention to safety and loss control. 

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Montgomery Receives Aa1 Bond Rating

4 MVRMA Cities Among Top 50