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2005 NYCOM Annual Meeting Controlling High Risk Exposures for Municipalities Gideon Putnam Hotel Saratoga Springs, NY PRESENTERS: Robert Bambino and Brett Carruthers NY Municipal Insurance Reciprocal Avis Spencer, Esq. Congdon, Flaherty & O’Callaghan What We’ll Cover • Law Enforcement Liability -- Results of NYMIR’s Law Enforcement Assessment Project • Employment Practices Liability -- Exposures and Risk Control Law Enforcement Liability Law Enforcement Challenges: • • • • • Accreditation Policies/Training Force Issues Pursuit Civil Rights Violations Accreditation • NYS Division of Criminal Justice Services • • • • Program 130 Standards for Assessment Increased Professionalism High Quality Policies and Programs Significant Recognition 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 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 Pursuit • • • • • • Annual Training and Policy Review Consistency Stop Stick Deployment Road Blocks Other Tactics Pursuit Termination Civil Rights Violations • Treatment of Individuals • Strip Searches • Paul Marriott, Barbara Davis and Andy Rivera vs. County of Montgomery, County of Montgomery Sheriff’s Department Law Enforcements Assessments • 20 Agencies • 10 Agencies Small Cities and Villages • Loss Leaders – False Arrest; Civil Rights Violations and Force 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. Findings • Strip Searches • Recommendations for Policy Development or Revisions made in several instances. • Most take risk transfer approach. 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 Employment Practices Liability NYMIR’s Loss Experience – Public Officials’ Policy Leading Losses by Severity – Dollars Paid • • • • Violation of Civil Rights Employment Discrimination Land Use Breach of Duty 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 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 VII’s prohibition on discrimination also includes a prohibition on harassment based upon any of the protected categories set forth above Employment Actions that may Trigger Claims under Title VII: • • • • Failure to hire Termination Discipline Actions Contract Termination • Demotion • Transfers • Application of benefits 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. 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. 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) 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) EPL Pitfalls Number Eight: Number Seven: Number Six: Number Five: Number Four: Number Three: Number Two: Number One: Improper Resolutions Breach of Confidentiality Biased Investigations Indifferent Work Environment Not adopting EPL policies Failure to distribute policies Ignoring Complaints Retaliation 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 EPL Risk Control • Control Method Action Include seasonal and second/ third shift Update and widely distribute anti-harassment/ discrimination policies Intake persons should be male and female employees - keep records Don’t limit to “immediate supervisor” Respond to all employee complaints Including “confidential” complaints 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 Basic Risk Control Techniques Control Method Action Prevent retaliation against Monitor work environment complainants and others who Speak with parties participate in an investigation Respond promptly to complaints or proceeding ADA – Accommodating employees with intellectual disabilities Exchange non-essential job functions Read or interpret application materials Provide additional training time and/or guidance Questions? Presentation will be on NYMIR Web Site: www.nymir.org Go to Risk Management Section – then Seminar Materials and Information