How to be a good Defendant (or avoid it altogether) Dave Pfeifle SD Municipal League Conference

1. How to be a good Defendant (or avoid it altogether) Dave Pfeifle SD Municipal League Conference October 11, 2019

2. Local Governments profoundly impact people’s lives • Provision of essential services: • Law enforcement/fire protection • Roads/infrastructure • Emergency Management Services • Emergency Medical Services • Planning/Zoning

3. Essential Services are provided by many dedicated public employees • Over 2,000 local government employers in SD • Tens of thousands of local government employees in SD • Thousands of vehicles being operated by those public employees during work hours. • We spend more time working than we do at home or with our families.

4. UNFORTUNATELY, SH*% HAPPENS: On average, each adult U.S. citizen is involved in an auto accident every single year. 40 million lawsuits in the U.S. every year. Over one million lawyers. In 2015, the EEOC received nearly 30,000 complaints of harassment in the work place in the U.S.

5. “To err is human; to be sued for it is a given.” “America: the land of the Free and the home of the litigious.” Sources: Alexander Pope, An Essay on Criticism, and Liberty Mutual Insurance Ad Ruth Lee Johnson, Psychology Today, July 29, 2014.

6. SD Public Assurance Alliance 429 Members. Almost 290 municipalities SDPAA Members receive over 700 claims per year: • Slip and Falls on public property • Auto accidents, including high speed pursuits • Water-related claims • Civil rights claims • Employment claims (terminations, harassment, etc.)

7. If prevention is the gold standard of medical care, then . . . .

8. SDPAA Loss Control—Prevention is key! • All SDPAA Members upon entry into the SDPAA and every three years afterwards receive a comprehensive Loss Control Survey by SBI. Can consult with SBI or SDPAA staff at any time! • Trainings for Member employees—thousand of hours available. Live and webinars/video trainings • Annual Safety and Risk Conference

9. PublicEmployees are involved in claims as: • Witnesses • Named Defendants • May be part of an internal investigation even if it does not arise to the level of a claim against the City

10. A Public Employee may need to provide more than testimony A Court may require you to provide documents/evidence such as: Your emails—work and also perhaps personal Your workplace files/other documents related to the lawsuit Your other data/texts from your work cell phone/perhaps personal cell phone What/where/when you say something is very important!

11. Documentation do’s and don’ts • 1. Electronic Messages Etiquette • 2. Properly Documenting Work items • 3. Retention of Documents

12. Electronic Messages By the Numbers: 3.7 Billion email users worldwide; 248 million users in U.S. • 269 Billion emails sent per day, 74 trillion emails per year • Email is number one source for discovery in lawsuits 18 Billion texts in U.S. every day, 6.5 Trillion per year. • Average adult sends and receives 32 texts per day • At least 49% of American adults check messages while driving—43% of teens check messages. 2013 Pew Research Report

13. Electronic messages Etiquette: • Never forward these types of electronic messages to co-workers: • 1) jokes; • 2) religious; • 3) virus warnings; • 4) chain letters; or • 5) anything not work-related. • Always assume every message will be read by your mother and your clergy.

14. Drafting Proper Electronic Messages: • 1. Evaluate the sensitivity of the communication and the potential costs of inadvertent disclosure. • 2. Don’t say anything in an email that you would not print on letterhead and sign your name to. • 3. Be descriptive in the “subject” line. • 4. Try to limit the message to a single subject. • 5. Use caution when instinctively replying to a message you have received. • 6. Avoid airing disputes over email. • Source: Alan J. Bojorquez, Bovey, Akers, & Bojorquez in Austin, Tx.

15. More on Proper Electronic Messages: • 7. Be selective when copying or blind copying other recipients on a message. • 8. Be deliberate when forwarding emails. • 9. Protect privileged or confidential information. • 10. Diligently maintain your files and clean your system regularly. • 11. Understand that employers can inspect employee email in certain situations. • Source: Alan J. Bojorquez, Bovey, Akers, & Bojorquez in Austin, Tx.

16. More on Electronic Messages: • An employee has no reasonable expectation of privacy in their work emails • Are electronic messages public records under SD law? • Exception currently in SDCL but attempts to eliminate it have been made • Public Record request via Email—treat it as a written request • 10 working days to respond--clock starts when sent or when opened? • Forward immediately to the proper person for a response • Use caution in drafting electronic messages: • Rapid-fire response can lead to problems. Ten-second rule. • Difficult to know the sender’s intent without body language, facial expressions. Be clear.

17. Some “dumb” emails: • “Under our previous Open Door policy, any employee was permitted to speak with any executive. Henceforth, employees must first ask their direct manager for permission before speaking with an executive. Otherwise the Open Door policy remains the same.” • “It has come to my attention that the e-mail system was down yesterday. From now on, I have requested that the system manager send a group message to everyone next time the system goes down.” • Source: Geoffrey James, Inc. Magazine, “Dumbest Corporate Emails

18. PROPER DOCUMENTATION • Kindergarten gave us great lessons on how • to document: • 1. “See Spot run” method of documentation • 2. “See something, say something” • 3. Put your toys away where you can find them later—i.e. retention/organization

19. Retention of Records • Follow your City’s Records Policy • Model policy available via SDML • May not be able to use destruction schedule if a document subject to litigation discovery • If not certain, ask the City Attorney before destroying a document

20. Conflicts of Interest for Public Officials • In simple terms: • 1. If you can answer the question: “What’s in it for me?” in the affirmative, then be extremely cautious. • 2. If you would not want it published on the front page of the local newspaper, then perhaps you do not do it.

21. Conflicts of Interest—the legal rule • State Statute generally prohibits any City officer from having a financial interest in a contract entered into by the City. • Some exceptions apply, but ask the City Attorney rather than interpreting it yourself. • Some municipalities have additional requirements such as the avoidance of impropriety. • Source: SDCL ch. 6-1

22. Complaint/threat of claim/lawsuit: • What to do if you are aware or confronted with one: • Employees should alert their supervisor immediately. If an official, should alert the City Attorney immediately. • Avoid “compassion fatigue”---all public servants can experience it. • Avoid making any off-hand statements: “yeah we screwed up,” “The City will pay your bills and we’ll sort it out later.” • Document the discussion, if any, without any editorializing.

23. “Don’t misinform your Doctor nor your Lawyer.” • Source: Benjamin Franklin.

24. GOVERNMENT PRACTICES HOTLINE LAUNCHED IN 2019

25. QUESTIONS? • Thank you! • Disclaimer: while the presenter is an attorney, this presentation is for general information purposes only and should not be construed as providing legal advice or opinions for a specific situation. The audience is encouraged to contact the attorney of their choice for any specific legal discussion and legal advice.