Verifying and Documenting Excavation Marks

I (William Sheppard) was a Safety professional in heavy civil construction for over 10 years, and in that time, I investigated numerous incidents of breaking functioning underground utilities.  Not once did anyone get hurt or die.  What are the odds of dying from a utility strike, you ask?  The odds of being fatally injured are one in five, for those incidents with an injury.  Those aren’t good odds, so if you have hit a utility four times during your career, do not hit another. 

Under every city and town in the state and, yes, below our lakes and rivers, run utility lines, tunnels and other structures.  If you hit them some can kill you, and all will cost you.  You will encounter hidden hazards that kill the striker quickly: gas, propane and electricity.  In addition, you may also encounter those that may kill others: telephone and communication cables and national defense lines.  Many people are unaware of these hazards.  Some who are aware do not respect the danger of underground utilities. 

Anyone in Oklahoma can dial 811 or use the OKIE811 online service to notify utilities so they can “mark out” their underground facilities. Always remember, you must call for these utilities to get marked, whether you are constructing a new driveway, or driving posts for a new fence, etc. The OKIE811 system is free, it is easy, and it’s the law. 

• You must call regardless of where the excavation is located. Even if it’s on private property, out in the middle of a field, or on a street with no name – “You must Call.” 

• You must call if you are only excavating a few inches or just surface grading. If you move material – “You must Call.” 

Each year, approximately 700,000 underground utilities are struck during excavation work, according to the Common Ground Alliance, a group that provides training and education on underground hazards as well as coordinating the “OKIE811 – Call Before You Dig System.”  If you’re lucky and no one is fatally injured, the cost of one utility strike may result in serious financial losses. Additional costs can be fines levied by the utility that can no longer provide service to its clients. These fees can range around $10,000 per hour for loss of service. If you shut down a hospital or stop work at a factory, you will likely pay for their losses too. 

It has been my professional experience that there are two steps that can help eliminate and reduce excavating hazards - verifying and documenting utility mark out.  Here are some tips to help you, the excavator, work safely and save your municipality money: 

Upon arrival at the worksite, prior to beginning the excavation, an excavator should do the following: 

• Verify that the worksite matches the OKIE811 one-call request and is timely 

• Verify that all facilities have been marked and review the color codes if in doubt 

• Verify all service feeds from buildings and homes near the worksite 

• Check for any visible signs of underground facilities, such as pedestals, risers, meters and new trench lines 

• Check for any facilities that are not members of the one call center and contact someone to get them located 

It is important for excavators and locators to document the location of markings before excavation work begins.  The primary purpose of this best practice is to avoid unnecessary litigation and expensive legal fees for all parties involved.  Additionally, documenting marks is an excellent idea, as marks will be covered by spoils or degraded by weather and construction equipment and there could be, if not caught during the mark-out verification process, mismarked utilities.  In most situations when underground facilities are not properly marked, excavators have no way of knowing where underground utilities are located.  If located markings are adequately documented through the use of photographs, video, or sketches before excavation work begins, it is easier to resolve disputes if an underground facility is damaged as a result of improper marking, failure to mark, or markings that have been moved, removed, or covered.  Make sure to capture documentation (measurements) of marks in relation to permanent landmarks like large rocks, utility poles, pedestals, gates, fences and buildings. 

Governmental Fleets Not Covered by FMSCA Regulations? Think Again!

The Federal Motor Carrier Safety Administration (FMSCA) was established January 1, 2000, to regulate the trucking industry in the U.S.  The primary mission of the FMSCA is to improve the safety of commercial motor vehicles and truck drivers through the enactment and enforcement of safety regulations. 

One question Oklahoma cities and towns ask themselves is whether FMSCA regulations apply to governmental fleets. 

Many Oklahoma cities and towns believe they are exempt from FMSCA regulations governing truck weight limits and other safety regulations.  It is true that governmental fleets have exemptions for emergency vehicles and snow and ice control equipment.  However, government fleets are not exempt from operating a safe vehicle as defined by FMCSA regulations. 

Oklahoma municipalities may be exempt from the highway loading limits; however, they are still subject to vehicle design loading restrictions.  For example, if you plan on loading the rear axle of a flatbed or dump truck to 26,000 lbs., the axle (including springs and tires) must be rated for at least 26,000 lbs.  Otherwise, the flatbed truck used in this example would be considered an unsafe vehicle as mandated by FMVSS (Federal Motor Vehicle Safety Standards). 

The three common infractions for government fleets are driving without a CDL (Commercial Driver’s License), not conducting drug and alcohol testing when required and oversize or overweight municipal dump trucks, refuse haulers, or jet-rodders.  It is noteworthy that when municipal vehicles travel to other states, the size and weight violations for these vehicles are left entirely to the discretion of the state in which they are located.  It pays to be aware of the laws of states your fleet may be traveling into. 

Over the last decade more and more states have adopted most, or all, of the FMCSA regulations as their regulatory guidelines.  It is important to note that exceptions for governmental agencies only apply to particular chapters and/or sub-chapters of the FMCSA regulations.  If your agency leaves its municipal boundaries or crosses a state line, regulations may apply to your agency in different ways.  

On a related note, private entities doing government contract work, such as for-hire hauling, may mistakenly believe that FMSCA regulations do not apply to them when they are working for a government agency.  The municipal exemptions do not apply to these private entities, even when they are doing contract work for a municipality. 

Post-Incident-Interest 

Government vehicles are not targeted by law enforcement for FMSCA violations.  However, accidents can involve serious ramifications for vehicles with FMCSA safety violations.  If you’re involved in a serious accident, Highway Patrol has the right to impound your vehicles to investigate the incident under FMSCA guidelines.  This is the same way they would treat other carriers; they don’t have special guidelines to follow for governmental agencies.  They will ask for the vehicle’s driver’s vehicle inspection report (DVIR), maintenance and inspection records, and the driver’s file. 

It is important to know there is no exception to random annual drug/alcohol testing for all CDL drivers.  All municipal employees who operate vehicles requiring a CDL are subject to the CDL and drug testing requirements.  Only very specific, very narrow exceptions sometimes apply and most municipal fleets do not fit exemptions in these areas. 

What are the consequences of violating FMCSA regulations? They are the same for municipalities as for anybody else. The operator of the vehicle could be ticketed. The driver could be ticketed or warned.  If your vehicle is overweight, and you are in a state that enforces that, then you are going to get an overweight ticket. Oklahoma does enforce weight limits. 

What is a Bond, and Who Needs One?

What is a Bond: A bond is an obligation of the Surety (the company issuing the bond) to protect a person or entity (in this case your municipality or public entity) against financial loss caused by the acts of the principal (in this case your city official or employee).  

Municipal or Public Entity Positions to consider Bonding: There are essentially three types of municipal officials or employees serving the municipality or public entity:

First: the elected official who, although ultimately answerable in the political process for their performance, is a representative of those who have elected him or her and owes a duty to faithfully perform the functions assigned to them for the public good.

Second: public agents, or appointed officials, also share the responsibility of owing this special duty to their municipality or public entity. For the appointed official, the duty to faithfully perform emanates from the governmental powers reposed in the official. Power, authority and control would not exist absent the appointment to office.   

Third: the public employee, although serving for the public good, does not owe the same duty as the elected or appointed official. The public employee does not hold a special position of trust relative to the public, but instead owes a duty to his or her employer, in this case the municipality or public entity.

Bond Coverage vs. Your Municipal Liability Protection Plan (MLPP) Coverage:

Bonds serve a different purpose than coverage provided under your MLPP. Coverage under your MLPP protects the municipality or public entity from negligent acts of an elected or appointed official or public employee that could result in a third-party claim or suit. Bonds protect the municipality or public entity from a financial loss as a result of an improper or illegal act of an elected or appointed official or public employee.

What are the Types of Bonds Available:

There are numerous types of bonds available in the market. The most commonly used by a municipality or public entity are Fidelity Blanket Bonds, Fidelity Schedule Bonds, Public Official Individual Bonds, Public Official Schedule Bonds, and Public Official Blanket Bonds.

Fidelity Bonds: Statistics show a shocking increase in employee theft.  The only protections against this kind of loss are good internal control, regular outside audits and a Fidelity Bond. Fidelity Bonds are often referred to as “honesty insurance.” They cover loss due to any dishonest act of a bonded employee. The employee may steal alone or with others. The loss may be money, merchandise or any other property, real or personal. The Fidelity Bond is available in a group (blanket) or individual (schedule) form. These bonds are available in $5k, $10k, $25k, $50k, and $100k coverage amounts for periods of one and three years with the three-year bond provided at a reduced rate.

Public Official Bonds: For the public official entrusted with the handling of public funds, the primary purpose of the Public Official Bond is the protection of those funds from mismanagement and theft: Public Official Bonds guarantee taxpayers that the official will do what the law requires. A public official is expected to “faithfully perform” the duties of the office. Public Employee Bonds are also available for bonding the subordinates of the public official (those people who are not required by statute to be bonded). Those subordinates need to be bonded for dishonesty only.

Types of Public Employee Bonds and Coverages:

Individual Bond – Covers a single official for a specific amount.

Name Schedule Bond – Covers specific individuals for a stated amount in a schedule attached to the bond.

Position Schedule Bond – Covers specific positions for a stated amount in a schedule attached to the bond. 

Public Employee Blanket Bond – This bond covers all employees (except Treasurers, who are required to post individual qualifying public official bonds and cannot be covered by a blanket bond) unless specifically excluded.

Honesty Blanket Bond Coverage – Insures against loss sustained by the insured through any dishonest act committed by any of the employees. Recovery is limited to the bond penalty.

Honesty Blanket Position Bond Coverage – Insures against loss sustained by the insured through any dishonest act committed by any of the employees. The amount of coverage on each employee is the stated limit of liability.

Faithful Performance Blanket Bond Coverage – Insures against loss sustained by the insured through any dishonest act committed by any employees and failure to faithfully perform their duties or account properly for all monies to an amount not exceeding the stated limit of liability. Recovery is limited to the bond penalty.

Faithful Performance Blanket Position Bond Coverage – Insures against loss sustained by the insured through any dishonest act committed by any of the employees and failure to faithfully perform their duties.  The amount of recovery on each employee is the stated limit of liability.

Who is Required by Law to be Bonded:

Tit. 11 § 8-105. Certain officers to give bond

The municipal governing body shall require the municipal treasurer, any officer or employee designated by ordinance to sign municipal warrants or municipal checks, and any other officers or employees as the governing body may designate by ordinance, to give bond for the faithful performance of his/her duties within 10 days after his election or appointment, in such amount and form as the governing body shall prescribe. The municipality shall pay the premiums on such bonds.

Tit 11 § 1-102. Definition

“Officer or official” means any person who is elected to an office in municipal government or is appointed to fill an unexpired term to an elected office, and the clerk and the treasurer whether elected or appointed. When “officer” or “official” is modified by a term which refers to a personnel position or duty, the holder of the position or duty is not an officer or official of the municipality for any purpose.    

Tit. 11 § 27-111. Bond of clerk and judge

A.    The clerk of each municipal court shall give bond to the governing body of the municipality where the court is established. The bond shall be approved by the governing body and shall be in an amount to be fixed by the governing body. 

B.     The municipal governing body may provide that the judge, the alternate judge, and an acting judge, or any of them, shall give a bond to the governing body of the municipality where the court is established. If bond is required, it shall be in an amount to be fixed by the governing body. It shall be conditioned in the same manner as the bond that is required of the clerk of the court, and it shall be approved by the governing body.

Please contact the OMAG Underwriting Department for the appropriate application.

Americans with Disabilities Act Amendments Act - Expanding Employee Protections and Employer Obligations

As the ADAAA does not apply retroactively, and will therefore only apply to denials of reasonable accommodation where a request was made (or an earlier request was renewed) or to other alleged discriminatory acts that occurred on or after January 1, 2009. Situations in which an employer, union, or employment agency allegedly failed to hire, terminated, or denied a reasonable accommodation to someone with a disability on or before December 31, 2008 the original ADA definition of disability would be applied even if the person did not file with the EEOC until after January 1, 2009.

Introduction

President George W. Bush signed into law the Americans with Disabilities Act Amendments Act of 2008 (ADAAA), which went into effect January 1, 2009. The changes in the definition of disability in the ADAAA apply to all titles of the ADA, including Title I (employment practices of private employers with 15 or more employees, state and local governments, employment agencies, labor unions, agents of the employer and joint management labor committees); Title II (programs and activities of state and local government entities); and Title III (private entities that are considered places of public accommodation). It also directed the U.S. Equal Employment Opportunity Commission (EEOC) to amend its ADA regulations to reflect the changes made by the ADAAA. The final regulations were published in the Federal Register on March 25, 2011

The ADAAA made a number of significant changes to the definition of “disability.” In enacting the ADAAA, Congress made it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the statute. Congress overturned several Supreme Court decisions that Congress believed had interpreted the definition of “disability” too narrowly, resulting in a denial of protection for many individuals with impairments such as cancer, diabetes, and epilepsy. The ADAAA states that the definition of disability should be interpreted in favor of broad coverage of individuals. As a result, many more medical conditions will qualify as either an actual disability or a perceived disability for purposes of the Americans with Disabilities Act (ADA).

ADAAA: Expanding Employee Protections and Employer Obligations

Expansion of Definition of Actual Disability

The ADAAA does not change the ADA’s three prong definition of disability: that a “disability” is a (1) “physical or mental impairment” that “substantially limits” the “major life activities” of the individual; (2) a record of an impairment; or (3) being “regarded as” having an impairment. However, the regulations implement the significant changes that Congress made regarding how those terms should be interpreted.

Prong 1: “Physical or Mental Impairment”

The definition of “impairment” in the new regulations is almost identical to the definition in EEOC’s original ADA regulations, except that the immune and circulatory systems have been added to the list of body systems that may be affected by an impairment, because these systems are specifically mentioned in the ADAAA’s examples of major bodily functions.

The regulations define “physical or mental impairment” as any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin and endocrine. They also cover any mental or psychological disorder, such as intellectual disability (formerly termed mental retardation), organic brain syndrome, emotional or mental illness, and specific learning disabilities.

Prong 1: “Substantially Limits”: Congress’s mandate that the definition of disability be construed broadly.

The ADAAA states that the primary focus in ADA cases should be on whether covered employers have complied with their obligations and that the determination of whether an individual’s impairment is a disability under the ADA “should not demand extensive analysis.”

Among other things, the ADAAA references the intent of Congress to reject recent Supreme Court decisions holding that an impairment “substantially limits” a major life activity only if an individual is “prevented or severely restricted in an activity that is of central importance to most people’s daily lives.” The ADAAA essentially tells the EEOC, which had defined “substantially limited” in its regulations to mean “significantly restricted,” to devise a more liberal definition.

The ADAAA also rejects another Supreme Court holding that mitigating measures an individual uses to counteract the effects of an impairment (for example, medication) must be taken into account in determining whether an impairment “substantially limits” a major life activity. Under the ADAAA, the only mitigating measures that may be taken into account in assessing whether an individual has a disability are ordinary eyeglasses and contact lenses. The ADAAA further provides that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity.

The regulations implement Congress’s intent to set forth predictable, consistent, and workable standards by adopting “rules of construction” to use when determining if an individual is substantially limited in performing a major life activity. These rules of construction are derived directly from the statute and legislative history and include the following:

• The term “substantially limits” requires a lower degree of functional limitation than the standard previously applied by the courts. An impairment does not need to prevent or severely or significantly restrict a major life activity to be considered “substantially limiting.” Nonetheless, not every impairment will constitute a disability.

• The term “substantially limits” is to be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA.

• The determination of whether an impairment substantially limits a major life activity requires an individualized assessment, as was true prior to the ADAAA.

• With one exception (“ordinary eyeglasses or contact lenses”), the determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures, such as medication or hearing aids.

• An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.

• In keeping with Congress’s direction that the primary focus of the ADA is on whether discrimination occurred, the determination of disability should not require extensive analysis.

Prong 1: “Major Life Activities”

Prior to the ADAAA, it was up to the courts to determine whether activities qualified as “major life activities,” using the regulations promulgated by the EEOC as guidance. The ADAAA removes much of the courts’ and the EEOC’s discretion by specifically designating a non-exhaustive list of examples of major life activities: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, blinking, communicating and working.

The ADAAA also designates the operation of “a major bodily function” as per se a major life activity and provides as examples: functions of the immune system, normal cell growth, and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions. As a result of the ADAAA’s recognition of major bodily functions as major life activities, it will be easier to find that individuals with certain types of impairments have a disability.

Prong 2: “Record of an Impairment”

An individual who does not currently have a substantially limiting impairment but who had one in the past meets this definition of “disability.” An individual also can meet the “record of” definition of disability if she was once misclassified as having a substantially limiting impairment (e.g., someone erroneously deemed to have had a learning disability but who did not).

All of the changes to the first definition of disability discussed in the questions above – including the expanded list of major life activities, the lower threshold for finding a substantial limitation, the clarification that episodic impairments or those in remission may be disabilities, and the requirement to disregard the positive effects of mitigating measures – will apply to evaluating whether an individual meets the “record of” definition of disability.

Prong 3: Expansion of Definition of “Regarded As” Disability

Under the third prong of the definition of disability, individuals are protected from discrimination based on “being regarded as having such an impairment.” Since the only subject in the definition that the word “such” can be read to refer to is “a physical or mental impairment that substantially limits one or more … major life activities of such individual,” courts have generally construed this provision as protecting only individuals whose employers perceive them as having an impairment that is an actual ADA disability, i.e., one that substantially limits an employee in the performance of one or more major life activities. The ADAAA provides that a person will be “regarded as” disabled if the person establishes that he was subjected to discrimination because of an actual or perceived physical or mental impairment – regardless of whether the actual or perceived impairment in fact limits a major life activity. The only qualification on this broadened definition of “regarded as” disability is that impairments that are both “transitory (meaning an actual or expected duration of six months or less) and minor” will not qualify for “regarded as” protection. Not surprisingly, the ADAAA makes clear that employers need not provide a reasonable accommodation to individuals who do not actually have a disability, but are “regarded as” having one.

The ADAAA specifically states that those covered under only the third prong (“regarded as”) are not entitled to reasonable accommodation. Thus, an individual must be covered under the first prong (“actual disability”) or second prong (“record of disability”) in order to qualify for a reasonable accommodation. The regulations clarify that it is generally not necessary to proceed under the first or second prong if an individual is not challenging an employer’s failure to provide a reasonable accommodation.

Other Provisions

The ADAAA bars the use of qualification standards, employment tests, and other selection criteria based on an individual’s uncorrected vision unless the standard, test or other selection criteria is shown to be job-related for the position in question and consistent with business necessity. The ADAAA also makes clear that no claim can be brought for reverse discrimination under the ADA; i.e., an individual who does not have an ADA disability cannot state a claim based on preferential treatment afforded an individual who does have an ADA disability.

Conclusion: Impact of the ADAAA

So what does this mean for employers? As the ADA prohibits discrimination based on an individual’s disability, now more employees may qualify as disabled under the ADA and may request reasonable accommodations to perform their jobs. Particularly with respect to the amendments related to mitigating measures and episodic impairments, requests may come from employees who were never previously known to have impairments. Since these issues are likely to arise in your municipality, now is a good time to become familiar with the requirements of the ADA, including the interactive process and reasonable accommodations.

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 opinions with respect to specific situations since such advice requires an evaluation of precise factual circumstances by an attorney. OMAG does not represent or endorse any group, site or product that may be mentioned in this article. If you have questions, please contact Suzanne Paulson, OMAG General Counsel, at spaulson@omag.org or Matt Love, Associate General Counsel & Claims Director, at mlove@omag.org.

Open Meeting and Open Records Act 2017 Amendments

A section of the Open Records Act was amended effective November 1, 2017.  The amendment provides additional guidance concerning how a public body may approach producing public records for inspection and reproduction. The amendment is found at 51 O.S. § 24.A.5 (6).  There are two new provisions of this subsection to be aware of.  The amended statutory section now reads:

6. A public body must provide prompt, reasonable access to its records but may establish reasonable procedures which protect the integrity and organization of its records and to prevent excessive disruptions of its essential functions. A delay in providing access to records shall be limited solely to the time required for preparing the requested documents and the avoidance of excessive disruptions of the public body's essential functions. In no event may production of a current request for records be unreasonably delayed until after completion of a prior records request that will take substantially longer than the current request. Any public body which makes the requested records available on the Internet shall meet the obligation of providing prompt, reasonable access to its records as required by this paragraph; and

This first added sentence underlined specifies that delay of access to records shall be permissible in only two situations: (a) preparation time necessary to respond to the request, and (b) if delay is necessary to avoid excessive disruption to the public body’s essential functions.

This second added sentence underlined specifies an impermissible reason for delay in fulfilling an Open Records request for inspection or reproduction. The effect of the provision is to negate a “first in, first out” rule in responding to Open Records requests.  In other words, if a public body had received a prior voluminous request that may take a substantial amount of time to respond to, but then receives a subsequent request for production of records for inspection or reproduction that could be fulfilled more quickly, then fulfilling the subsequent request in a timely manner should be considered, rather than simply filling each request based on the which request was filed first.    This legislation attempts to interject a requirement that Open Record requests be evaluated at the time they are filed based on how quickly the records requested can be collected and made available, rather than simply based on a “first come, first served” approach.   

Open Meetings:

The Open Meetings Act was also amended 25 O.S. § 311 effective November 1, 2017.  This amendment primarily relates to public notice for public meetings being provided through internet websites. The specific language changes to this section can be found at Oklahoma Session Laws 2017, SB 403, c. 105, § 1, eff. November 1, 2017.

Under the prior version of §311 public bodies were required to publish a schedule of regular meetings by December 15th of every year, and then display notice of a regularly scheduled meeting at least 24 hours prior to a regular meeting at the principal office of the public body or the location of the meeting.  The Amendment to this section now provides for notice of a regular meeting by posting on the website of the public body at least 24 hours prior to a regular meeting and at least 48 hours prior to a special meeting.  The requirement of the content of the notice remains unchanged. Under the modified provision public bodies now have two options for providing notice prior to regularly scheduled meetings, but the public body must choose at least one of the following methods:

a. by posting information that includes date, time, place and agenda for the meeting in prominent public view at the principal office of the public body or at the location of the meeting if no office exists, or

b. by posting on the public body's Internet website the date, time, place and agenda for the meeting in accordance with Section 3102 of Title 74 of the Oklahoma Statutes. Additionally, the public body shall offer and consistently maintain an email distribution system for distribution of such notice of a public meeting required by this subsection, and any person may request to be included without charge, and their request shall be accepted. The emailed notice of a public meeting required by this subsection shall include in the body of the email or as an attachment to the email the date, time, place and agenda for the meeting and it shall be sent no less than twenty-four (24) hours prior to the meeting. Additionally, the public body shall make the notice of a public meeting required by this subsection available to the public in the principal office of the public body or at the location of the meeting during normal business hours at least twenty-four (24) hours prior to the meeting.

The remaining language amendments reword or relocate existing requirements for notice, but do not effect substantive changes.  Those requirements include:

The required twenty-four (24) hours’ notice for Regular meetings, or the required forty-eight (48) hours’ notice for Special meetings, shall exclude Saturdays, Sundays and holidays legally declared by the State of Oklahoma. The posting or distribution of a notice of a public meeting through the website of the public body shall not preclude a public body from considering at its regularly scheduled meeting any new business. “New business,” as used herein, shall mean any matter not known about or which could not have been reasonably foreseen prior to the time of the posting.

An additional amendment to 25 O.S. §311.A.9.b was approved by the Legislature effective November 1, 2019 primarily to correct an inaccurate reference to the Statutory provision requiring use of a public body’s website for posting public meeting information as found in 74 O.S. §3106.2.  (See Oklahoma Session Laws 2019, SB 740, c. 376, § 1, eff. November 1, 2019)

With this amendment to the §311, public bodies are still required to give notice of all regularly scheduled meetings by December 15th of each year.  But the twenty-four (24) hour posting of the regularly scheduled meeting may be accomplished through the public body’s website or by posting at the principal place of business of the public body or the location of the meeting.  Similarly, the public body’s website may also be used to publicly post notice the required forty-eight (48) hours’ notice of Special meetings.  The language of the statute makes posting on the public building optional if the website posting is used, but many cities continue to post both on the website and on the public building in order to maximize notice to the public of the upcoming public meeting.    

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 opinions with respect to specific situations since such advice requires an evaluation of precise factual circumstances by an attorney. OMAG does not represent or endorse any group, site or product that may be mentioned in this article. If you have questions, please contact Jeff Bryant, Associate General Counsel @ jbryant@omag.org.

General Safety - Unsafe Acts

Most of us know that accidents are caused by only two things - unsafe acts/practices, and unsafe conditions. Some of us even know that 9 out of 10 accidents are the result of unsafe acts, or things we do when we know better. This is kind of strange if you think about it. We have more to fear from our own actions than from any other job hazards around us. Why do we deliberately expose ourselves to injury every day?

Attitude: “It Won't Happen to Me”
Basically, most of us are just thinking about getting the job done and we tend to rationalize the risk of getting injured. We think to ourselves that we have done this job many, many times this way and nothing bad has happened. Therefore, nothing bad will happen to us today. On an intellectual level, we realize there is a potential danger but decide that the risk of being injured is low. Because we have not been injured so far, we may think of ourselves as being very safety conscious. We know the right way to do it, we realize that it is hazardous to do it this way, but what we are really thinking to ourselves is "It won't happen to me."

Attitude: “It’s OK to Take Short Cuts”
Some of us are meticulous about following safe work practices, but because a job "will only take a minute" we use an unsafe method or tool. For example, not putting on our safety glasses because the job will only take a minute, or not locking out a machine because an adjustment will only take a second. Or maybe even forgetting to inform our supervisor and coworkers where we are, because we'll only be in a hazardous environment for a few seconds.

Usually we think about it just before we do something a little unsafe, or maybe quite a bit unsafe. We know better, we know the safe way to do it, but we take that little chance. In effect we are saying, "I know that this could result in an injury, but "It can't happen to me." Maybe it's human nature to think that accidents always happen to someone else, but they can happen to you too. What makes you different?

Why take a chance in the first place? Only you can decide to take the time to do your job safely and correctly the first time. And don’t forget, your injury doesn’t just affect you.  Stop and think about how it might affect your family and coworkers before you take an unsafe risk.

 

Practicing Good Safety Habits

In most everything we do, we find a "trick" to make the process easier and faster. After we develop these tricks, they become work habits in our everyday activities. Developing everyday safety habits can keep you injury free through the year. Here are some safety habits to live by:

1. Set Your Own Standards - Don't be influenced by others around you who are negative. If you fail to wear safety glasses because others don't, remember the blindness you may suffer will be yours alone to live with.

2. Operate Equipment Only if Qualified - Your supervisor may not realize you have never done the job before. You have the responsibility to let your supervisor know, so the necessary training can be provided.

3. Respect Machinery - If you put something in a machine's way, it will crush it, pinch it or cut it. Make sure all guards are in place. Never hurry beyond your ability to think and act safely. Remember to de-energize the power first before placing your hands in a point of operation.

4. Use Your Own Initiative for Safety Protection - You are in the best position to see problems when they arise. Ask for the personal protective equipment or additional guidance you need.

5. Ask Questions - If you are uncertain, ask. Do not accept answers that contain, "I think, I assume, I guess." Be sure.

6. Use Care and Caution When Lifting - Most muscle and spinal injuries are from overstrain. Know your limits. Do not attempt to exceed them. The few minutes it takes to get help will prevent weeks of being off work and in pain.

7. Practice Good Housekeeping - Disorganized work areas are a breeding ground for accidents. You may not be the only victim. Don't be a cause.

8. Wear Proper and Sensible Work Clothes - Wear sturdy and appropriate footwear. These should enclose the foot fully. Avoid loose clothing and dangling jewelry, and be sure that long hair is tied back and cannot become entangled in the machinery.

9. Practice Good Personal Cleanliness - Avoid touching eyes, face, and mouth with gloves or hands that are dirty. Wash your hands frequently and use barrier creams when necessary. Most industrial rashes are the result of poor hygiene practices.

10. Be a Positive Part of the Safety Team - Willingly accept and follow safety rules. Encourage and redirect others in a positive and caring manner regarding safety procedures. Your attitude can play a major role in the prevention of accidents and injuries.

Body Worn Video and Records Retention

BODY WORN VIDEO AND RECORDS RETENTION
With the popularity and affordability of Body Worn Video (BWV) equipment, many OMAG members are purchasing devices for their police officers.  Members learn quickly that the expense of the equipment purchase doesn’t compare to the cost of storing the video or data. OMAG Legal receives regular inquiries regarding storage/retention requirements and issues when it comes to BWV. As a service to our members, OMAG’s Legal and Risk Management Departments have developed this article addressing the most frequently asked questions regarding BWV retention.  

As of this writing, there is no legal obligation to store body (or dash) camera videos for any length of time. As such, the decision to store or not store is left to the municipality subject to the requirements of State law. The municipality should consider adopting a retention policy that takes into account the legal factors outlined in the statutes discussed below. In particular, if there is video of a use of deadly force (whether it causes death or just injuries or even where no one is actually hurt), those videos should be preserved (OMAG recommendation) and should be sent to OMAG Legal for review. Videos depicting a use of force incident causing significant bodily injury should also be preserved (OMAG recommendation).  The Statute of Limitations for Civil Rights claims is 2 years and there is a 6 month grace period to serve a Civil Rights suit after it is filed. For video capturing incidents which may lead to a Civil Rights claim, a 3 year retention would be ideal and a best practice.

The following Statutes are implicated when determining whether BWV videos should be preserved.

OPEN RECORDS ACT
“In addition to other records which are kept or maintained, every public body and public official has a specific duty to keep and maintain complete records of the receipt and expenditure of any public funds reflecting all financial and business transactions relating thereto, except that such records may be disposed of as provided by law.” 51 O.S. 24A.5. “Except as may be required in Section 24A.4 of this title, this act does not impose any additional recordkeeping requirements on public bodies or public officials.” 51 O.S. §24A.18. So the Open Records Act applies to records already in existence but only requires that financial records be kept. And even financial records can be disposed of “as provided by law.” Law Enforcement records have a specific statute, Section 24A.8, which mirrors this general non-requirement “Nothing contained in this section imposes any new recordkeeping requirements. Law enforcement records shall be kept for as long as is now or may hereafter be specified by law. Absent a legal requirement for the keeping of a law enforcement record for a specific time period, law enforcement agencies shall maintain their records for so long as needed for administrative purposes.” 51 O.S. §24A.8(C); see also Oklahoma Assoc. of Broadcasters v. City of Norman, 2016 OK 119, ¶¶25-30 390 P.3d 689 (Sec. 24A.8 is part of the entire Act and any ambiguities regarding disclosure obligations will be resolved in favor of disclosure). The question is whether any other law would apply because the Act may not require retention but it does specifically limit that “this act” does not impose requirements thus opening the door for other Statutes.

RECORDS MANAGEMENT ACT
“"Local record" means a record of a county, city, town, village, township, district, authority or any public corporation or political entity whether organized and existing under charter or under general law unless the record is designated or treated as a state record under state law.” 67 O.S. §203(c). “The governing body of each county, city, town, village, township, district, authority or any public corporation or political entity whether organized and existing under charter or under general law shall promote the principles of efficient records management for local records. Such governing body shall, as far as practical, follow the program, established for the management of state records. The Administrator shall, insofar as possible, upon the request of a governing body provide advice on the establishment of a local records management program.” 67 O.S. §207. 

“[S]hall, as far as practical, follow the program, established for the management of state records.” The Attorney General has declined twice to say what “as far as practical” means. See 2001 OK AG 46, ¶27, 2002 OK AG 13, ¶8 (in both instances the Attorney General opines that this is beyond the scope of the his opinion authority under 74 O.S. §18b(A)(5)). There is no need to fret: the Act delegates the authority to draft records retention policies to each agency of the state. 67 O.S. §206. The guidance in drafting a policy from the administrator is “How long do I keep records? Each record has its own disposition/retention schedule, which indicates the minimum length of time the record should be kept. A record’s retention period is based on its administrative, fiscal, legal or historical value.” Link. The Act does state “Except as otherwise provided by law, no state record shall be destroyed or otherwise disposed of unless it is determined by the Archives and Records Commission that the record has no further administrative, legal, fiscal, research or historical value.” 67 O.S. §210. §206(A)(1) and (3) arguably create a Cost/Benefit Analysis approach to the adopting of policies on retention: “[Each Agency head shall] Establish and maintain an active, continuing program for the economical and efficient management of the records of the agency” and records can be submitted to destruction when the record is “not needed in the transaction of current business and that do not have sufficient administrative, legal or fiscal value to warrant their further keeping.”

OMAG recommends that each municipality adopt policies on retention that take into account whether the record is needed for current business transactions and, if not, whether the record has administrative, legal, fiscal, research and historical value of records and then provide for their retention based on those factors. 

UNIFORM ELECTRONIC TRANSACTIONS ACT
Two defined terms that are relevant to the discussion are “"Electronic record" means a record created, generated, sent, communicated, received, or stored by electronic means” and “"Governmental agency" means an executive, legislative, or judicial agency, department, board, commission, authority, institution, or instrumentality of the federal government or of a state or of a county, municipality, or other political subdivision of a state.” 12A O.S. §15-102(9) & (11). So the act is going to apply to cities and towns, but the Act is very deferential to government to decide its retention for itself: “Each governmental agency of this state, in cooperation with the Archives and Records Commission, shall determine whether, and the extent to which, it will create and retain electronic records and convert written records to electronic records.” 12A O.S. §15-117. The Commission that is referenced was originally created by 74 O.S. §564, but it’s since been moved to 67 O.S. §305. The statutes limit the jurisdiction of the Commission to the State and its Agencies and does not define State as including political subdivisions.

OMAG’s opinion is that this Act applies to  municipalities and would apply to body cam video, but imposes no affirmative requirements on retention.

BWV CATEGORIES
Police Officers utilizing BWV devices must adhere to a department policy that not only governs the initiation and termination of recording, but also the categorizing of the recording.  At the end of recording, or end of shift, the officer must choose if the video segments are critical, non-critical, or would be considered evidence.   For the purposes of BWV categories, a few examples of critical, non-critical, and evidence are listed below:

I.    Critical
  a.    Vehicle stop where seizure and/or arrest is made
  b.    Injury to an officer or suspect
  c.    Use of force
  d.    Formal or administrative complaint/investigation
  e.    Or as determined by policy
II.    Non-critical
  a.    Warnings
  b.    Tickets
  c.    Routine interactions with public
III.    Evidence
  a.    Any images or video captured that an officer reasonably believes constitutes evidence in a criminal case

OMAG recommends a 3 year retention for a critical category and a 180 day retention for non-critical category.  Evidence should be maintained for the amount of time required by statute, until the case is adjudicated, or all appeals have been exhausted. 

Body Worn Video and Records Retention was written by Matthew Love and Kevin McCullough.  You may contact the authors at mlove@omag.org or kmccullough@omag.org .  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.
 

The Probationary Period

Facts About the Probationary Period

Did you know?

1. Probationary periods originated in union environments. Probationary periods originated to give employers the opportunity to terminate new employees within a reasonable period of time without all the paperwork and hearings contemplated by a collective bargaining agreement.

2. Probationary periods are not required for at-will employers. The at-will doctrine states that absent a contract, either express or implied, to the contrary, an employer can terminate an employee for any reason or no reason at all. In a non-union environment, probationary periods just aren’t necessary.

3. Probationary periods may be construed as an implied contract. A probationary period could create an implied contract. When you tell an employee you have 90 days to show us that you can do the job, what is the employee thinking? “I have a permanent job for at least 90 days.” Or, maybe, “After 90 days I have a job for life.” A written agreement clearly stating that the employment relationship is at-will is the only defense in this situation.

4. Termination during the probationary period does not disqualify employees from receiving unemployment. The probationary period has no bearing on whether an employee is awarded unemployment benefits.

5. Probationary periods do not protect against lawsuits. Probationary employees have the same rights as a non-probationary employee when it comes to filing lawsuits. Probationary employees can file lawsuits alleging wrongful termination, breach of contract, discrimination, harassment, failure to train, etc. And, there are limited situations where probationary employees can sue for due process violations. For example, if an employee is terminated in the probationary period for alleged criminal acts that were made public by the municipality, the municipality would owe this employee a name-clearing hearing in order to protect and defend his or her good name.

Tips for Implementing a  Successful Probationary Period

1. Be clear about at-will employment status. Make sure employees understand the employment relationship is at-will during and after the probationary period. This is vital to the defense of any claim that the municipality created an implied contract with the employee.

2. Be clear about your expectations. Objective goals need to be expressly stated to the employee regarding expectations. Be sure that the employee understands (a) how long the probationary period will last, (b) what needs to be accomplished during that period, (c) how often a review will occur and (d) what standards need to be met in order to successfully complete the probationary period.

3. Give feedback regularly. Supervisors should conduct periodic reviews with the employee to provide feedback about how the employee is progressing and what needs to be improved. If the employee is having performance issues, offer detailed guidance and provide additional training if necessary. Be sure that the employee assigned to provide guidance to the probationary employee is knowledgeable and experienced.

4. Encourage supervisors to ask HR for help if there is a concern. Explain to supervisors that HR is a resource and can help ensure employees are being treated fairly and consistently between municipal departments or with prior supervisors. Give the supervisors examples of what can go wrong when they don’t ask for help. For example, explain the problem created if they place a struggling employee on a one-month probationary period but a former supervisor gave employees three months to improve his/her performance. Or ask, if sued, how does the supervisor want to be perceived by a jury – as the mean supervisor who did not give the employee a second chance or the supervisor who gave the employee every opportunity (within reason) to correct the problem.

5. Document Document Document. Remember, if it’s not written down it did not happen, but if you write it down, you own it! If an employee can’t perform the essential functions of the position, you’ll likely want to terminate the employment relationship. For the best legal defense be sure the supervisor has documented dates, times, locations, witnesses of the employee’s performance, efforts to train, coach and manage, and so on.