OFDDA Fall Conference November 7-9, 2013

1. OFDDA Fall ConferenceNovember 7-9, 2013 Presenter: Ken Jones Local Government Law Group Phone: 541.485.5151 Email: jkj@speerhoyt.com Reducing Liability / Employee Relations

3. Policies ~ The Good, The Bad, The Ugly, and most importantly, the WHY?

4. General What is it? (Webster’s Dictionary) 1) A plan or course of action adopted by a government 2) Designed to influence and determine decisions, actions or other matters

5. General(cont.) 3)A course of action, guiding principle or procedure considered to be expedient, prudent of advantageous 4)A form of gambling on which bets are made on unpredictable numbers

6. Honesty is the best Policy…

7. Why Have Policies? • Promotes efficiency and good practices • Clarifies expectations, responsibilities, lines of authority • Educates new employees, volunteers and board members • Protects from liability if followed

8. How to Adopt Policies • Establish policy on adoption of policies • Seek public input • Seek staff and volunteer input • Examine policies from other districts or model policies

9. How to Adopt Policies(cont.) • Do not adopt in haste • Legal review before final adoption • Provide copies of policies to employees, volunteers and board members

10. Following Policies • Liabilities for violating policies • Confusion over what the real policy is • Honoring expectations and maintaining credibility • Policies sometimes create enforceable legal rights in others, especially with employees • Process of adopting them creates expectation they will be followed • Procedure for making exceptions

11. Reviewing Policies • Review at least once per year • Only keep ones you need and follow • Watch for inconsistencies between new and old policies • Change to reflect changing laws and practices

12. Leave Flexibility Allows district room – a preface to your manual to the effect, “The policies are not a contract and create no binding rights. From time to time a policy needs to be changed or application modified based on the facts of a specific situation.”

13. Use of Equipment or Property • Property ~ Fire equipment, fitness equipment, facilities, cars Beware of potential ethics issues

14. Use of Equipment or Property (cont.) • Social Media ~ Notice regarding privacy expectations. Example 1: “The district reserves the right to monitor district controlled social media and posts by district personnel and to restrict or remove any content that is deemed in violation of this social media policy or any applicable law. In keeping with the district’s personnel policies, district personnel have no expectation of privacy while using the Internet or district equipment.”

15. Use of Equipment or Property (cont.) Example 2: “District personnel have no expectation of privacy in communications made in furtherance of their district duties or in communications which utilize district-owned equipment, including district-issued computers, cellular phones, smart phones, tablets and personal digital assistants (PDAs). Use of district-owned equipment is subject to investigation and audit by the district at any time and without notices.”

16. Whistleblowers • Specific area of the law covered by ORS 659A.200 to 659A.224. Need to check your state law • Protects disclosures by public employees • [add NV, CA, WA]

17. Whistleblowers(cont.) • Prohibits discriminating or retaliating against an employee who in good faith • Discloses information that the employee reasonably believes is evidence of • A violation of law • Gross waste of funds • Abuse of authority

18. Whistleblowers(cont.) • Reports criminal activity • Causes a complaint to be filed against any person • Cooperates with law enforcement • Brings a civil action against an employer • Testifies in good faith at a civil or criminal trial

19. Speech ~ (Protected or Not) What is protected speech? • Speech • Pickering vs. Board of Education (U.S. Supreme Court) • Facts – Letter to editor • Criticizing superintendent and school board fired by school board – interests and its ability to make policy without employee distractions paramount

20. Speech ~ (Protected or Not)(cont.) 2. Pickering Test • Public concern first • Burden shifts to employer • Discipline and harmony • Confidentiality of department affairs

21. Speech ~ (Protected or Not)(cont.) • Employee’s ability to perform duties diminished • Need for close personal relationships • Same decision would have resulted even in the absence of protected conduct

22. Speech ~ (9th CIRCUIT)(Check your state and federal courts) • Volunteers covered (9th, 3rd, 2nd) • Recent case (Desrochers v. City of San Bernardino) • Police department – an escalating series of personal grievances • City prevailed on public concern issue so summary judgment granted

23. Speech ~ (9th CIRCUIT)(Cont.) • Judgment hinged on notion the “speech” was personal and of a private nature and only marginally related to public issues. Not about core government duties and operations • Decision based upon changes in issues as grievances moved forward – not in public – failed to convince court of altruistic motives of the complaining officers decision under review

24. Speech ~ BRIGHT LINE - NO • Specific facts are critical • Close consultation with legal counsel • Hostile Work Environment • Only in protected classes not just because you don’t think I like you or am picking on you • Generalities • Budget, staffing readiness usually protected speech

25. Speech ~ BRIGHT LINE - NO(cont.) • Fire chiefs and elected officials are “fair game.” Will look to see if actual damage to the department. Also how close the action is to a personal grievance. Courts do not like attempts to characterize personal issues as matters of public concern • Health, safety and discrimination almost always protected • Derogatory speech about protected classes not protected.

26. Speech ~ BRIGHT LINE – NO(cont.) • Morale is a tough one. Must state action had actual negative effect (i.e., disruption at office vs. emergency scene). Fact specific • As elected or appointed official – develop a tough skin. Make sure you under the FIRE before acting.

27. Discrimination & Sexual Harassment • Fast growing litigation area • Should prohibit discrimination and harassment on basis of “protected class membership” • Sex • Age • National origin • Religion

28. Discrimination & Sexual Harassment(cont.) • Race • Physical handicap • Marital status • Political affiliation • Family relationships-except if family member would be supervisor • Relationship to anyone who is a member of protected class

29. Discrimination & Sexual Harassment(cont.) • “Harassment” includes: • Unwelcome sexual advances • Slurs, jokes, pictures, and other discriminatory treatment • “Discrimination” includes any decision in which the person’s protected class membership plays a substantial deciding factor

30. Discrimination & Sexual Harassment(cont.) • Application of requirements not related to the job • Example: Requiring a secretary to be able to do heaving lifting • Example: Requiring EMT to pass firefighter skills test

31. Discrimination & Sexual Harassment(cont.) • Example: Giving job to male over equally qualified female based upon assumption that female will miss more work due to child care obligations • Advancement on the basis of sexual favors

32. Discrimination & Sexual Harassment(cont.) • Specify investigation procedure for discrimination or harassment complaints • Inadequate investigation leads to liability • For non-managerial employees, volunteers, or patrons liable if “knew or should have known” of harassment, but took inadequate steps to prevent • Require reports to board in small districts • Get training for problem personnel

33. Alcohol & Drug • If ADA applies-no discrimination due to past abuse • May only test for illegal drugs in pre-offer drug screen • Prohibit use, possession or sale of illegal drugs while on the job or on call

34. Alcohol & Drug(cont.) • Require employees and volunteers to report: • All use of legal or illegal drugs which could affect performance • All convictions for drug or alcohol use or possession • Require all drugs to be used only in accordance with directions

35. Alcohol & Drug(cont.) • Base testing on reasonable suspicion • Train supervisors of signs of abuse • Double test any positive results with appropriate tests • Keep sample for employee to test at own expense, but forward to lab yourself

36. Alcohol & Drug(cont.) • Offer employee assistance program at least to anyone who comes forward voluntarily • Do not search employees’ possession without legal advice

37. Discipline • Do not require progressive discipline in all cases • Do not try to make exhaustive list of all grounds • Provide for employment at will or due process procedure • Provide for system of review

38. Discipline(cont.) • Disciplinary options • Counseling and verbal warnings or reprimands • Probationary periods • Improvement plans • Written warnings or reprimands • Loss of seniority for vacation time preference

39. Discipline (cont.) • Suspension with pay • Suspension without pay. (May require due process hearing) • Demotion. (May require due process hearing) • Last-Chance Agreement • Termination

40. Discipline(cont.) • Traps to avoid • Basing disciplinary actions on improper grounds • Workers’ compensation claims • Reports to regulatory agencies of violations • Whistleblower’s Act • Association with others.

41. Discipline(cont.) • Delegation of disciplinary authority to volunteer’s association • Defamation • Invasion of privacy • Infringement of “liberty” interest (requires a hearing to clear name) • Stress claims

42. Policies to Consider Not Everyone is Covered by a CBA • Grievances • Citizen complaints • Check signing and expenditures

43. Policies to Consider(cont.) • Code of Ethics and Conduct • Outside employment • Requirements to stay on volunteer roll • Access to personnel files • Public records requests and charges

44. Policies to Consider(cont.) • Meetings • Compliance with public meetings laws • Notice of meeting • Location of meeting • Accessibility and interpreters • Minutes

45. Policies to Consider(cont.) • Development of agendas • Conduct of meetings—who is in charge • Public participation • Use of District property and facilities by public

46. The End…