Controlling High Risk Exposures for Municipalities

1. 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

2. What We’ll Cover • Law Enforcement Liability -- Results of NYMIR’s Law Enforcement Assessment Project • Employment Practices Liability -- Exposures and Risk Control

3. Law Enforcement Liability Law Enforcement Challenges: • Accreditation • Policies/Training • Force Issues • Pursuit • Civil Rights Violations

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

5. 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

6. 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

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

8. 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

9. Law Enforcements Assessments • 20 Agencies • 10 Agencies Small Cities and Villages • Loss Leaders – False Arrest; Civil Rights Violations and Force

10. 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.

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

12. 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

13. Leading Losses by Severity – Dollars Paid Violation of Civil Rights Employment Discrimination Land Use Breach of Duty Employment Practices Liability NYMIR’s Loss Experience – Public Officials’ Policy

14. 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

15. 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

16. Failure to hire Termination Discipline Actions Contract Termination Employment Actions that may Trigger Claims under Title VII: • Demotion • Transfers • Application of benefits

17. 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.

18. 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.

19. 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)

20. 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)

21. 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

22. Reductions in Force First Female Employee First Employee in Protected Class Collective Bargaining Disputes Political Disputes “Problem” Employees/ Managers Pregnancy Leaves Untrained supervisory personnel Challenges for Administrators

23. EPL Risk Control

24. Basic Risk Control Techniques * Burlington Industries, Inc. v. Ellerth, 118 S. Ct. 2257 (1998), and Faragher v. City of Boca Raton, 118 S. Ct. 2275

25. Basic Risk Control Techniques

26. Questions? Presentation will be on NYMIR Web Site: www.nymir.org Go to Risk Management Section – then Seminar Materials and Information