OFDDA Fall ConferenceNovember 7-9, 2013

Reducing Liability / Employee Relations

Presenter: Ken Jones

Local Government Law Group

Phone: 541.485.5151

Email: jkj@speerhoyt.com

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

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

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

Honesty is thebest Policy…

Why Have Policies?

A. Promotes efficiency and good practices

B. Clarifies expectations, responsibilities, lines of authority

C. Educates new employees, volunteers and board members

D. Protects from liability if followed

How to Adopt Policies

A. Establish policy on adoption of policies

B. Seek public inputC. Seek staff and volunteer inputD. Examine policies from other districts

or model policies

How to Adopt Policies(cont.)

E. Do not adopt in hasteF. Legal review before final adoptionG. Provide copies of policies to

employees, volunteers and board members

Following Policies

A. Liabilities for violating policiesB. Confusion over what the real policy isC. Honoring expectations and maintaining

credibility1. Policies sometimes create enforceable legal rights in

others, especially with employees2. Process of adopting them creates expectation they

will be followed3. Procedure for making exceptions

Reviewing Policies

A. Review at least once per yearB. Only keep ones you need and followC. Watch for inconsistencies between

new and old policiesD. Change to reflect changing laws and

practices

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.”

Use of Equipment or Property

A. Property ~ Fire equipment, fitness equipment, facilities, cars

Beware of potential ethics issues

Use of Equipment or Property (cont.)

B. 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.”

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.”

Whistleblowers

A. Specific area of the law covered by ORS 659A.200 to 659A.224. Need to check your state law

B. Protects disclosures by public employees

C. [add NV, CA, WA]

Whistleblowers(cont.)

D. Prohibits discriminating or retaliating against an employee who in good faith

1. Discloses information that the employee reasonably believes is evidence of

(i) A violation of law(ii) Gross waste of funds(iii)Abuse of authority

Whistleblowers(cont.)

E. Reports criminal activityF. Causes a complaint to be filed against any

personG. Cooperates with law enforcementH. Brings a civil action against an employerI. Testifies in good faith at a civil or criminal

trial

Speech ~ (Protected or Not)

What is protected speech?1. Speech

(i) Pickering vs. Board of Education (U.S. Supreme Court)

(ii) Facts – Letter to editor(iii)Criticizing superintendent and school

board fired by school board – interests and its ability to make policy without employee distractions paramount

Speech ~ (Protected or Not) (cont.)

2. Pickering Test(i) Public concern first

(a) Burden shifts to employer

(1) Discipline and harmony

(2) Confidentiality of department affairs

Speech ~ (Protected or Not)(cont.)

(3) Employee’s ability to perform duties diminished

(4) Need for close personal relationships

(5) Same decision would have resulted even in the absence of protected conduct

Speech ~ (9th CIRCUIT)(Check your state and federal courts)

A. Volunteers covered (9th, 3rd, 2nd)B. Recent case (Desrochers v. City of San

Bernardino)1. Police department – an escalating series of

personal grievances2. City prevailed on public concern issue so

summary judgment granted

Speech ~ (9th CIRCUIT)(Cont.)

C. 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

D. 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

Speech ~ BRIGHT LINE - NO

A. Specific facts are criticalB. Close consultation with legal counselC. Hostile Work Environment

1. Only in protected classes not just because you don’t think I like you or am picking on you

D. Generalities1. Budget, staffing readiness usually protected

speech

Speech ~ BRIGHT LINE - NO(cont.)

E. 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

F. Health, safety and discrimination almost always protected

G. Derogatory speech about protected classes not protected.

Speech ~ BRIGHT LINE – NO(cont.)

H. Morale is a tough one. Must state action had actual negative effect (i.e., disruption at office vs. emergency scene). Fact specific

I. As elected or appointed official – develop a tough skin. Make sure you under the FIRE before acting.

Discrimination & Sexual Harassment

A. Fast growing litigation areaB. Should prohibit discrimination and

harassment on basis of “protected class membership”

1. Sex2. Age3. National origin4. Religion

Discrimination & Sexual Harassment (cont.)

5. Race6. Physical handicap7. Marital status8. Political affiliation9. Family relationships-except if family member

would be supervisor10. Relationship to anyone who is a member of

protected class

Discrimination & Sexual Harassment (cont.)

C. “Harassment” includes:1. Unwelcome sexual advances2. Slurs, jokes, pictures, and other

discriminatory treatment

D. “Discrimination” includes any decision in which the person’s protected class membership plays a substantial deciding factor

Discrimination & Sexual Harassment (cont.)

1. Application of requirements not related to the job

(i) Example: Requiring a secretary to be able to do heaving lifting

(ii) Example: Requiring EMT to pass firefighter skills test

Discrimination & Sexual Harassment (cont.)

(iii) Example: Giving job to male over equally qualified female based upon assumption that female will miss more work due to child care obligations

2. Advancement on the basis of sexual favors

Discrimination & Sexual Harassment (cont.)

E. Specify investigation procedure for discrimination or harassment complaints

1. Inadequate investigation leads to liability2. For non-managerial employees, volunteers, or

patrons liable if “knew or should have known” of harassment, but took inadequate steps to prevent

3. Require reports to board in small districts4. Get training for problem personnel

Alcohol & Drug

A. If ADA applies-no discrimination due to past abuse

B. May only test for illegal drugs in pre-offer drug screen

C. Prohibit use, possession or sale of illegal drugs while on the job or on call

Alcohol & Drug(cont.)

D. Require employees and volunteers to report:1. All use of legal or illegal drugs which could

affect performance2. All convictions for drug or alcohol use or

possession

E. Require all drugs to be used only in accordance with directions

Alcohol & Drug(cont.)

F. Base testing on reasonable suspicion1. Train supervisors of signs of abuse2. Double test any positive results with

appropriate tests3. Keep sample for employee to test at own

expense, but forward to lab yourself

Alcohol & Drug(cont.)

G. Offer employee assistance program at least to anyone who comes forward voluntarily

H. Do not search employees’ possession without legal advice

Discipline

A. Do not require progressive discipline in all cases

B. Do not try to make exhaustive list of all grounds

C. Provide for employment at will or due process procedure

D. Provide for system of review

Discipline(cont.)

E. Disciplinary options1. Counseling and verbal warnings or

reprimands2. Probationary periods3. Improvement plans4. Written warnings or reprimands5. Loss of seniority for vacation time preference

Discipline

(cont.)

6. Suspension with pay7. Suspension without pay. (May require due

process hearing)8. Demotion. (May require due process hearing)9. Last-Chance Agreement10. Termination

Discipline(cont.)

F. Traps to avoid1. Basing disciplinary actions on improper

grounds(i) Workers’ compensation claims(ii) Reports to regulatory agencies of violations(iii)Whistleblower’s Act(iv) Association with others.

Discipline(cont.)

2. Delegation of disciplinary authority to volunteer’s association

3. Defamation4. Invasion of privacy5. Infringement of “liberty” interest (requires a

hearing to clear name)6. Stress claims

Policies to Consider

Not Everyone is Covered by a CBA

A. GrievancesB. Citizen complaintsC. Check signing and expenditures

Policies to Consider(cont.)

D. Code of Ethics and ConductE. Outside employmentF. Requirements to stay on volunteer rollG. Access to personnel filesH. Public records requests and charges

Policies to Consider(cont.)

I. Meetings1. Compliance with public meetings laws

(i) Notice of meeting(ii) Location of meeting(iii)Accessibility and interpreters(iv) Minutes

Policies to Consider(cont.)

2. Development of agendas3. Conduct of meetings—who is in charge4. Public participation

J. Use of District property and facilities by public

The End…