March 2021 Risk and Safety Newsletter
Executive Order No. 13929
In June President Trump issued an Executive Order requiring certain standards to be met prior to receiving federal funding through the Department of Justice (DOJ). DOJ pushed out information last week that established guidelines within the Executive Order. Within the process, DOJ has selected the Oklahoma Law Enforcement Accreditation Program (OLEAP) as the credentialing body for our state. This is the accreditation program managed by the OACP.
Many of our Chiefs recently received an announcement from the Department of Justice on President Donald J. Trump’s recent Executive Order No. 13929. The information included guidelines for all law enforcement agencies that receive Department of Justice discretionary grant funding. This action requires any state, local, tribal, and university or college law enforcement agency that has obtained (or are in the process of seeking) credentials to certify that they meet certain mandatory and discretionary standards for safe policing. The Oklahoma Law Enforcement Accreditation Program (OLEAP) operates under the authority of the Oklahoma Association of Chiefs of Police (OACP) and is recognized by the US Department of Justice as the credentialing body for Oklahoma.
This process must be completed and reported to the DOJ by January 31, 2021. Fortunately, the OLEAP has developed the credentialing process and the time to initiate this process is NOW. You can review the process and download the form from the OACP website at https://okchiefs.org/executive-order-13929
Considering Ross v. City of Owasso
Release or Not Release – That is the Question Considering Ross v. City of Owasso and its Effect on the Confidentiality of Personnel Investigations Under the Open Records Act
November 25, 2020 | Monica Coleman
What’s the point of the Open Records Act? The purpose of the ORA is to ensure and facilitate the public’s right of access to, and review of, government records so they may efficiently and intelligently exercise their inherent political power. 51 O.S. §24(A)(2). The burden is on the public agency seeking to deny access to show a record should not be made available.
Unless a record falls within a statutorily prescribed exemption in the ORA, the record must be made available for public inspection. The public body urging an exemption has the burden to establish the applicability of such exemption.
Under the ORA, there is an exemption that “A public body may keep personnel records confidential . . . [w]hich relate to internal personnel investigations including examination and selection material for employment, hiring, appointment, promotion, demotion, discipline, or resignation.” 51 O.S. §24A.7(A)(1). Section 24A.7(A)(2) provides an exemption to record production “where disclosure would constitute a clearly unwarranted invasion of personal privacy.” Finally, Section 24A.7(B) provides that “all personnel records not specifically falling within the exceptions provided in subsection A of this section shall be available for public inspection and copying.”
Note the permissive language in Section 24A.7(A)(1) where “may” is used. “May” is a permissive word indicating discretion rather than mandate. Therefore, under Section 24A.7(A)(1), a public body has the discretion to decide whether or not to keep confidential any records that relate to internal personnel investigations as delineated in the statute. Generally, it is the “public policy of the State of Oklahoma that the people are vested with the inherent right to know and be fully informed about their government.” 51 O.S. §24A.2.
In Ross v. City of Owasso, the Oklahoma Court of Civil Appeals was faced with answering the question concerning whether the City of Owasso abused its discretion when it refused to release a copy of an investigative report (the Fortney Report) concerning Owasso’s City Manager and potentially criminal acts and violations of City policy he may have committed. The City argued that if the behavior of a public official is not criminal, but, merely “unethical/questionable,” this creates a public policy interest in the City keeping any investigation of the behavior secret, and indicates the lack of a public “need to know” under the Act.
While it’s a fine distinction, it is a distinction nonetheless, that the focus of the Court wasn’t really the reported conduct of the City Manager, so much as it was the potentially inappropriate expenditure of public funds when the governing body paid him a sizable severance when they could have terminated him for cause and paid him nothing. Ross’s request was not intended for general investigative or journalism purposes. Ross ¶20. The Court determined that Ross’s request involves a central matter of good governance – the allegation that substantial public funds were improperly expended paying a severance package to the City Manager because the City Manager’s contract explicitly required the forfeiture of any right to severance pay if his employment was severed for cause. Ross ¶20. The report would have provided answers regarding the City Council’s ability to terminate the City Manager for cause as a result of the investigation.
The Court applied a “balancing test and determined that the balance in this case clearly favored disclosure.” Ross ¶21. “The records request involved a high-profile employee in an official position, not routine day-to-day personnel employment matters. It involves specific questions of why the City Manager, who was accused of misconduct, was granted a substantial severance package, paid for by the taxpayers of Owasso, instead of being fired. In short, it is a “core” Open Records matter going directly to questions of the legitimacy of the Mayor and City Council’s good governance and use of funds, and the citizen’s inherent political power to inquire into these matters.” Ross ¶21
“Because the City identified no valid privacy, state, or public interests in withholding the Report, the Court found it should be disclosed under the Open Records Act.” Ross ¶21.
In Ross, the Court held that the City had failed to meet its burden to show that it had a valid basis under the Open Records Act to show why the records should not be made available. Ross ¶22. So, an important takeaway from Ross is that the public body must give a reason for not producing the requested record. This means that the public body must have an official ruling on any record request where records are not going to be released. If the request is made in a Council-Manager form of government where the City Manager has the authority over personnel matters, then it seems more prudent for the City Manager to make that official reason for refusing to produce records that are deemed confidential under the Act. This will avoid the governing body from being placed in a position of violating the law by encroaching into personnel matters that are not their area to be in.
In sum, what was Ross really about? It was about the public’s right to know how its governing body was spending the public’s money. It had little, if anything, to do with the fact that the City Manager was terminated and more to do with the reasons underlying his performance and the governing body’s interest in removing him. Public monies were spent when there was a contractual mechanism for paying him nothing. That was the central point of focus for the court and one that tipped the scales in favor of release of the records.
So, what are the options available to public bodies considering the ruling in Ross?
The public body could just give up the records. That ends the matter and favors the public’s right to information.
Sometimes, release could open other issues such as Constitutional rights violations. Under those situations, maybe it is best to fight to keep the records confidential. The City Attorney will have to defend in these situations in court. This means it is likely the court will want to review the records and decide for itself whether the records should be released. This means that the Court will conduct an in-camera review and privately determine whether to release the records.
If the Court determines the records should be released, or perhaps the parties decide to release cooperatively, a protective order can be put in place to protect the records from being used beyond the intended purpose of the request.
Cities with collective bargaining or other appeal/grievance procedure, may have a defense that the discipline is not final until it has run through the grievance and/or appeal procedures.
DISCLAIMER: OMAG attorneys have sought to keep updating this webpage with the most up-to-date information possible. OMAG offers this guidance to help your municipality make informed decisions. You should always consult with your City Attorney before taking any actions based on this guidance. If you have questions or concerns about the information contained in these articles, please email one of the attorneys in the OMAG Legal Department (see https://www.omag.org/legal-services for contact information).
Playground Safety Inspections
January and February are great times to have OMAG Risk Management Services come out and do a playground safety inspection at your municipality’s local parks. This is a free service. After the inspection is complete you will receive a written report with pictures and recommendations concerning any hazardous conditions found in your playground facilities. To schedule an inspection or get more information about the Playground Inspection Program, contact Kip Prichard, OMAG Risk Management Specialist.
Workplace Violence & Security: Are Your Employees Safe?
Is your office, shop, or plant prepared to deal with a workplace violence incident? Are your field workers? If you aren’t sure or think it is unlikely to occur, consider this: According to OSHA, some 2 million American workers are victims of workplace violence every year. Workplace violence can strike anywhere and anytime, and no one is immune.
Workplace violence can take place at or outside of work. It is defined as violence or the threat of violence against workers. Violence in the work environment can range from threats, verbal abuse, harassment, to physical assault and homicide.
Certain workers are at higher risk according to OSHA. These include, but are not limited to, workers who exchange money with the public, who work alone or in small groups, and who work early in the morning or late at night. Also, workers in certain industries (healthcare, social services, municipal utilities, law enforcement, retail, and in-home installations) are at increased risk.
It is important to acknowledge workplace violence as a real threat and take it seriously. The best protection employers can offer is to establish a zero-tolerance policy toward workplace violence against or by employees. OSHA advises employers to create a Workplace Violence Prevention Program (OSHA/PEOSH standards) and ensure all employees are trained on it and thoroughly understand policies and procedures concerning it.
Here are some other tips for keeping workers safe:
Provide safety education for employees so they know what behavior is and isn’t acceptable in the workplace environment.
Consider installing video surveillance, extra lighting, and alarm systems.
Minimize access by outsiders to your facilities by using ID badges, electronic keys, and if necessary, security guards.
Recommend field staff and employees working alone have cell phones and handheld alarms, requiring them to check in regularly.
Instruct workers to never enter a location that they feel may be unsafe.
Train employees on your workplace violence procedures annually and remind them frequently to keep their eyes and ears open and report anything that makes them feel awkward, uncomfortable, or unsafe. Even if they don’t experience it but saw or heard it they must report it!
Workers need to know employers have a system in place for their protection. It is critical to ensure all employees know the policy and understand that all claims of workplace violence will be investigated and dealt with promptly.
The Changing Role of Law Enforcement
De-escalation is the PROCESS of using STRATEGIES and TECHNIQUES intended to decrease the intensity of an escalating situation.
Keeping communities safe and enhancing officer skills and safety is of paramount importance for law enforcement, thus there is an ever-growing emphasis on the continued need to leverage de-escalation tactics. How law enforcement officers perform this obligation and how their actions are perceived by the community sets the foundation of their legitimacy in the eyes of the public. Focusing on this need for de-escalation will help facilitate trust within the community and reduce violent physical encounters.
De-escalation is not new, and officers have used it in its many forms since policing started. De-escalation saves lives and careers every year, but with complex and ever-changing societal conditions, law enforcement must evolve, grow and adapt to do it better today than they did yesterday.
OMAG has two Law Enforcement Specialist that have been Providing De-Escalation Training since 2008 with the use of a Shooting Simulator. In 2018 they expanded De-Escalation training by adding ICAT (Integrating Communications Assessment and Tactics) training. Since 2018 after providing ICAT training we have seen a positive change in how officers react to handling subjects who may have a mental disorder or subjects in crises when using the Shooting Simulator.
If your police department is interested in hosting the ICAT De-Escalation Training or the shooting simulator at your department or in your region please contact Billy Carter at wcarter@omag.org or Kevin McCullough at kmccullough@omag.org for additional information.
Reducing Inflow and Infiltration in Wastewater Systems
Stormwater flowing into a municipality’s sewer system through low gully traps, illegal connections, broken pipes, and unsealed manholes can cause overflows, system strains, and interruptions in your sewer operations. This is known as Inflow and Infiltration; aka I&I.
Why bother to fix Inflow & Infiltration?
By identifying I&I early and reducing their levels, municipalities can benefit from:
Reduced localized overflows: Through the management of overflows from manholes during rainfall, controlled overflow points, pump stations, and treatment plants.
Improve operational efficiencies: I&I reduces the sewer system capacity, limiting the potential for growth within a specific catchment.
Reduced ongoing costs: I&I results in clear water being pumped and treated along with wastewater, contributing to increased costs.
How to identify whether you have an I&I problem
Councils and water authorities can identify whether they have existing I&I issues within their system by looking for these indicators:
Pumps run for hours and inflows increase significantly during storm events
The hydraulic loading of wastewater treatment plants increases significantly after a rain event
Localized overflows occur within a collection system during a heavy storm event
An increase in inflow during dry weather conditions compared to previous months
Steps to reduce I&I within your wastewater system
First, identify the general vicinity of the issue through flow monitoring. Then identify the exact problem, locate the area(s) where it is occurring, and introduce measures to improve the situation.
The following steps provide a simple overview of an I&I reduction plan that can assist in identifying various stages associated with reducing I&I in a wastewater system:
Targeted monitoring – monitoring wastewater flows within the system
Identifying the problem – is it inflow or infiltration?
Source detection – where is it occurring within the system?
Rehabilitation – what can be done to reduce or eliminate the problem(s)?
Source detection
A few ways to detect the sources of I&I include:
Private Inspections – after receiving and documenting permission from property owners, inspecting private properties consists of visual assessments of the stormwater and wastewater networks within a property. Illegal connections could mean that a stormwater down pipe is directly connected to a wastewater gully trap.
Manhole Inspection – Manhole inspections can identify leaks from broken pipes, and joints due to tree root intrusion or design issues. Manholes can contribute to significant I&I through leaky covers as well.
Smoke Testing – Smoke testing locates I&I sources by identifying stormwater drain cross connections, broken pipes, and laterals, or unsealed manholes.
Dye Testing – Dye testing can be used to identify leaks and confirm smoke test results. The method uses water mixed with a non-toxic dye. The colored water Is pumped through the ground and storm water system and appears in the sanitary sewer collection system where leaks and illegal connections occur.
CCTV (closed circuit television) cameras – CCTV allows authorities to visualize the inside of pipes by using a small camera that travels down the length of a pipe to produce a visual representation of its condition. CCTV inspections can reveal the need for rehabilitating leaky pipes, facilitate grease or root removal, identify improper taps into the municipal lines, or find broken lateral connections.
Rehabilitation of Wastewater systems
Rehabilitation can include, but is not limited to, the following:
Seal manholes and replace leaky covers
Use cured-in-place piping (CIPP), trenchless rehabilitation or chemical grouting to seal leaks, and open cut replacement pipes
Raise gully traps and disconnect stormwater downpipes from the gully trap and redirect into stormwater systems
Fix broken laterals (reline or replace); fix any other private connections which might be improperly or illegally tapped into the municipal system
OMAG Risk Management Services wants to assist our municipalities in providing a safer and more efficient sanitary sewer system for their constituents. We offer several grants and programs to help you get started. Contact William Sheppard (wsheppard@omag.org) for more information if you are interested in improving your sanitary sewer system by reducing Inflow and Infiltration.
January 2021 Risk and Safety Newsletter
13 Warning Signs That May Lead to Workplace Violence
It is vital that administrators and supervisors have conversations with their employees about the potential for violence to occur in their workplace. We must train our employees to keep their eyes and ears open, watching for signs and behavior that can lead to a violent episode, and to report issues to supervisors, human resources, or law enforcement. What leads to workplace violence almost always starts small. It is possible for someone to be fine one day and come in the next with a firearm, but such incidents are extremely rare. Escalation to violence is typically a process. Usually there are warning signs (and often many of them) of a potential workplace violence incident about to occur. Here are thirteen suggested warning signs to keep in mind and watch out for while doing your day to day duties:
Threats – when a person makes direct, veiled, or conditional threats of harm.
Unreasonable – person constantly makes slighting references to others. They are never happy with what is going on. Consistently unreasonable and overreacts to feedback and criticism. They blow everything out of proportion. Individual tends to take comments personally and turn them into grudges.
Intimidation and control-oriented – individual feels a need to constantly force their opinion on others. Having a compulsive need to control situations. They use intimidation to get their way; can be physical or verbal. (Examples: fear tactics, verbal threats, harassment)
Paranoid – a person thinks other employees are out to get them. They think there is a conspiracy to all functions in society. They make comments of being persecuted or being a victim of injustice.
Angry, argumentative, and lacks impulse control – an individual has many hate and anger issues on and off the job with coworkers, friends, family, or the government. They are frequently involved in confrontations, are belligerent, and argue with others, including authority figures. This person demonstrates low impulse control (slamming or throwing things, cursing and threatening, physically animated with aggressive gestures.
Irresponsible – individual does not take responsibility for any of their behaviors, faults, or mistakes; it’s always someone or something else that is to blame. They make excuses and blame others, the organization, or the system for their actions.
Antisocial behaviors – this person has a fascination with violence and acceptance of violence as a way to handle situations; they applaud violent acts portrayed in the media such as racial incidents, domestic violence, active shooting sprees, or executions. They may have issues with law enforcement. May demonstrate an obsession with the killing power of weapons and their effect on people. They may demonstrate a pattern of behavior that shows a disregard for the rights of others.
Vindictive – makes statements like “he’ll get his”, “what goes around comes around” or “one of these days I’ll make them pay.” Verbalizes hope for something bad to happen to others, especially those they have a grudge against.
Bizarre and weird behavior – the person is quirky, strange, considered weird, and behaves in an unusual manner. Their presence makes others feel uneasy and uncomfortable. This behavior by itself doesn’t mean a person will become violent but coupled with other signs may be an indicator.
Desperation – a person is experiencing extreme desperation with family, finances, or personal problems; they are making comments of feeling “at the end of their rope” or “there’s no other way to deal with it.” They seem backed into a corner with no options.
Obsessive compulsive behaviors – the person has obsessive involvement with the job, they have no apparent outside interests; they eat, sleep, and live for the job. Or they have a romantic obsession with a coworker who has no interest in them. They may suffer from other forms of obsession; jealous interest in a specific topic, or perfectionist tendencies. Again, this behavior doesn’t mean they will necessarily become violent but look for a pattern of other signs coupled with obsessive compulsive behavior.
Substance abuse – persons demonstrating signs of alcohol and or drug abuse; frequent absences or tardiness, off-task and distracted on the job, disregard for safety policies and procedures; disoriented, jittery, slurred speech, frequently not where they are supposed to be or missing for stretches of time.
Chronic depression – a person displays signs of chronic depression, loss of interest and confidence in life or work, lethargic lacks energy, particularly when it is a significant change in behavior. The person was usually engaged, involved, and active but now they seem withdrawn and disengaged.
Just because a person appears to be demonstrating any of these signs doesn’t mean they are going to become violent at work, but it does mean supervisors, human resources, and administration should be aware of the signs and perhaps offer some assistance. Recommend getting some help using the Employee Assistance Program through New Directions. It is free to OMAG plan participants. Go to www.omag.org and search for “employee assistance program” for more information. We all have difficulty dealing with life at one point or another. Keep an eye out for the signs and offer help to your coworkers early in the process; doing so may save lives.
Are Mask Requirements for Employees Constitutional?
A public employer can require its employees to wear a face mask while at work without violating the employees right to free expression.