City of Weatherford: A CMOM Success Story

The Oklahoma Supreme Court has stated that “The maintenance and repair of [city] sewers is a corporate or proprietary function of a city and the city is liable for injuries sustained because of its failure to maintain and repair sewers properly.”  Oklahoma law requires municipalities “to use reasonable diligence and care to see that such sewer is not clogged ... and is liable for negligence in the performance of such duty to a property owner injured thereby after reasonable notice of the clogged condition of its sewer.”[1]

During 2004, the City of Weatherford had 48 sanitary sewer overflow claims resulting in a Consent Order from the Oklahoma Department of Environmental Quality (DEQ). Included in the Consent Order was the development of a CMOM (Capacity, Management, Operations, and Maintenance) Program to control their sanitary sewer overflows (SSOs).

The 2005 implementation of Weatherford’s CMOM program included the purchase of a trailer-mounted jetter and a dedicated crew of two full-time employees tasked with sanitary sewer collection system maintenance and record keeping for annual reports to OK-DEQ. Today their program has grown to three full-time employees, two trailer-mounted jetters, two vacuums, and a rover CCTV camera complete with a van. Weatherford has gone from having 48 SSOs in 2004 to averaging less than 2 per year from 2005 through 2018. Liability costs are greatly diminished and quality of life for the residents of Weatherford has improved.

The City of Weatherford’s sewer maintenance crew cleans over 250,000 feet of sewer line per year and video inspects about 3,400 feet per year. Their CCTV camera (OMAG has a grant for CCTV camera purchase assistance) removes the guesswork in determining what obstructs the line (roots, grease, debris, line collapse, etc.) and where exactly the problem is in the line. Then they can develop a plan to fix the problem and service the line. Weatherford uses root foam on about 7,000 feet of line per year (OMAG has a grant for Dukes Roots purchase assistance). Larry McKillip and his crew recommend using a Warthog jetting nozzle when jetting lines especially if they contain root balls. Larry says the Warthog is much more effective than mechanical cutters and saws, because the saws get stuck and are hard to dislodge, resulting in the need to dig up a line and break the pipe to retrieve the tool.

Trent Perkins, Public Works Director for Weatherford stated, “maps are critical for productivity.” That is why the city contacted their local COG (Council of Government)- SWODA for assistance in locating and mapping their water and sewer lines.  Through a grant (COG provides grant assistance for REAP and CDBG programs provided by the Oklahoma Department of Commerce,) the city has a viable computerized map showing the locations of all their water and sewer lines as well as manhole locations. OMAG can also assist member municipalities in gaining helpful information about their sewer systems using the SL-Rat (Sewer Line -Rapid Assessment Tool). This tool is loaned to cities and towns to quickly assess and map their sewer lines and determine what areas of town need maintenance, repair, or replacement, so municipal leaders can formulate a plan and budget for said infrastructural improvements. It is our belief the SL-Rat is an excellent tool for municipalities to use if they are seeking a REAP or CDBG grant.

Since sanitary sewer overflows are the most frequent liability claim filed against municipalities and authorities annually, and the cost of SSO claims continues to increase each year, OMAG recommends our cities and towns investigate utilizing resources to rehabilitate their aging sewer infrastructure.

A CMOM or any sewer line maintenance program is a costly start-up investment in time, staffing, and money, but it will quickly pay for itself by reducing sanitary sewer back-up claims. Citizens like to see capital improvements like new fire trucks, police cars, parks, and ballfields (the stuff we can see), but it’s also true they don’t like to have raw sewage running into their homes and businesses. Oklahoma leaders have been talking about our aging and disintegrating infrastructures for years. It is time to start making plans for major overhauls of these systems. Don’t wait for a consent order from OK-DEQ - take advantage of the resources available to you and start making the changes now.

According to Trent Perkins, “Personnel is the most important factor in the success of a sewer maintenance program, that and having the proper equipment, but support from the city’s mayor and council is key to our success.” Mike Brown, Mayor of Weatherford stated, “The City of Weatherford is thankful and proud that OMAG recognizes our efforts utilizing the CMOM program. Trent Perkins and his crew do an outstanding job maintaining our water and sewer lines. We appreciate the partnerships with SWODA and OMAG working with Weatherford to provide the best services available to our citizens.”

For more information about borrowing an SL-Rat from OMAG or to inquire about a CCTV camera or Duke’s Root Control grants contact William Sheppard or Kip Prichard at (800) 234-9461.

[1] Spencer v. City of Bristow, 2007 OK CIV APP 67, ¶ 12, 165 P.3d 361, 364

Accidents Involving Municipal Vehicles - Do Your Employees Know the Proper Actions to Take?

How does your municipality handle a vehicular accident when one of your employees is involved and operating a municipal vehicle? Being prepared and knowing what to do if this happens BEFORE it happens is key to promoting a successful outcome.

Do you have your employee contact their department supervisor? Police Department?  OMAG would certainly suggest a police report be filed, no matter how minor the accident. 

Do they know how to contact an ambulance service if needed?

Do they provide the information on your insurance verification card to the investigating officer?

Have they been advised to make no statement regarding fault at the scene?

Do they know how to assist the other party with the proper method to file a claim with the city?

If appropriate, do they take photos of the accident scene and all vehicles involved?

Are they advised not to make suggestions or recommendations on repair facilities? Making suggestions or recommendations on repair facilities can present uncomfortable situations if that repair facility does not meet the needs of the third party.

These things are very important to be sure that the investigation can be handled correctly. Regardless of whether the city employee feels they are at fault, a thorough investigation should take place to determine liability.  

If you have questions about how to handle a situation like this, or if you need help developing a plan, please contact Underwriting Director Chris Webb at cwebb@omag.org or Member Services Director Kyle Waid at kwaid@omag.org.

Why is a $1,000,000 Per Occurrence Policy Limit Enough?

Why does OMAG have a $1,000,000 per occurrence Policy Limit when there is no limit to civil rights liability under 42 U.S.C. §1983?

OMAG is not a commercial insurance carrier. OMAG was created by the execution of an interlocal agreement, making OMAG an extension of its member municipalities. The purpose of OMAG, as authorized expressly in the Governmental Tort Claims Act, 51 O.S. §167(C), is to allow municipalities to pool their self-insured risk with one another. Id. see also City of Choctaw v. OMAG, 2013 OK 6, 302 P.3d 1164 and Bd. of Cty. Commissioners v. ACCO-SIG, 2014 OK 87, 339 P.3d 866. The extent of the municipal exposure in tort on any given incident is $25,000 per claim property damage, $125,000 (except for the largest municipalities, all of which retain all self-insured risk) for all other claims, and a total cap of $1,000,000 for any combination of claims. 51 O.S. §154.

Obviously civil rights liability under 42 U.S.C. §1983 is not subject to the limits of the GTCA. That said, under §1983, the civil rights claim must be brought against the “person” who, while acting under color of law, violated a clearly established constitutional right. The US Supreme Court, in Monell, v. Dep’t of Soc. Servs., 436 U.S. 658, 690-91 (1978) held that a local government could be considered a “person” under §1983 but only to the extent that the Plaintiff could show that the entity caused the violation of the Plaintiff’s rights. This is what is commonly referred to as the policy, practice or custom requirement and requires a showing that the entity caused the loss by some policy, practice or custom it has adopted that caused the employee to cause the deprivation of a Constitutional right. This is an incredibly high bar to clear, especially considering the dialogue to come. But, in short, it is very difficult to successfully sue a governmental entity for civil rights violations.

The real exposure in §1983 is for the individual public employee who allegedly acts under color of law to violate a clearly established constitutional right. Unlike the entity in a Monell claim, the employee enjoys the protections of qualified immunity. Unlike the entity, however, an employee is liable for their actions if those actions violated a clearly established right (Monell would attach only after the showing of a violation if, and only if, the Plaintiff could also show that the employee acted per the direction of a policy, practice or custom). Why is this the City/Town's problem if the City/Town is not a named party?

Under the GTCA, the City/Town is obligated to defend and indemnify its employee(s) in §1983 claims so long as the employee was acting within the scope of their duties under the GTCA. 51 O.S. §162. The key provision that answers the question is found in §162(A)(2) which states that the indemnification obligation is limited to the GTCA tort cap limits in §154 – i.e. to $1,000,000.

Simply put, the City/Town is obligated to defend its employees (subject to their being in the scope of employment) in §1983 claims regardless of the cost. The City/Town is obligated to indemnify its employees in §1983 claims (subject to scope of employment) up to the tort cap of $1,000,000. OMAG fully insures this liability exposure by (1) fully defending the City and employees in all claims without the defense costs eroding the limits of our liability and (2) fully insuring the City for the GTCA per-claim caps and total aggregate cap and (3) fully insuring the City and employees up to the total liability exposure that the City is legally obligated to cover of $1,000,000. OMAG tailors its limits to the taxpayer legal liabilities – nothing more, nothing less. Many commercial carriers offer higher limits and, in doing so, expose the taxpayer to higher premiums to cover a liability risk that they are not subject to. They literally are insuring a risk that does not legally exist.

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This Loss Bulletin was written by Matt Love, Deputy General Counsel and Claims Director.  You may contact the author at (405) 657-1400.  The information in this bulletin is intended solely for general informational purposes and should not be construed as or used as a substitute for legal advice or legal opinion with respect to specific situations, since such advice requires an evaluation of precise factual circumstances by an attorney.