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Preparing Your Buildings For Winter Weather

The winter weather in Colorado is notoriously unpredictable – warm temperatures and sunshine one day, cold and snow the next. So what can be done to protect your buildings from winter weather?

Planning before the winter weather hits is important! To begin the process of “winterizing” your buildings, you should look closely at the roofs and walls, access, heating and cooling systems, fire protection systems, security and communication systems, and water supplies.

Access to Buildings:
Arrangements should be made to ensure emergency access on all roads leading to the facility. Snow removal services should be in place through the entity, county, or a private contractor.

Facility Roofs:
The largest weather-related property damage results from roof system failures. High winds and drifting snow can challenge the best roof designs. Inadequate heating of structures can cause overloading as well. To help prevent roof damage or failure, follow these steps:

  • Remove excessive snow accumulation from the roof, especially from vulnerable areas.
  • Make sure roofs that slope towards internal drains have slopes of at least 1/4 inch per foot.  If not, check routinely for ponding water during the winter months.
  • Examine the roof for any structural problems – leaks are usually the first sign of a problem.
  • Clean all drains, gutters and down spouts.

Heating Systems:
The failure of a heating system may not only cause roof problems, but it can impair fire protection systems and cause extensive water damage as pipes freeze and burst. Heating systems, including all fuel-burning equipment, should be routinely checked and tested in advance of the cold weather.

Fire Protection Systems:
Buildings protected by wet pipe sprinkler systems should have thermostats set to temperatures above 40° F, and unattended buildings need a protective signaling device to monitor low building temperatures.

Asphalt Roofing Rebate to CIRSA Members

Does this scenario sound familiar? A hail storm rolls through town causing damage to your entity’s buildings. A claim is submitted to CIRSA, the damage is estimated, and your entity goes through the process of having shingles replaced. Then, a few years after repairs have been made, another hail storm hits and the process is repeated.

These storms, and the damage they cause, place into motion a very time-consuming process for CIRSA members that is extremely expensive for both your entity and the insurance pool as a whole. In fact, over the past three years our member buildings have sustained over $19,000,000 in hail damage. To put this into perspective, this is more than the pool’s losses from the 2013 flood, which is our single largest property catastrophe on record.

Obviously, there is nothing that any of us can do about hail falling from the sky. However, when this type of loss occurs, there is an opportunity to replace the damaged asphalt shingles with a more hail resistant product.

When it comes to asphalt roofing, it is fairly common knowledge that shingles are separated into different classes (1 – 4). A Class 2 shingle is not as resistant to hail damage as a Class 3, and Class 4 is considered the most impact resistant. What is not common knowledge, is that more than one type of asphalt is used in the manufacture of shingles, and those made with polymer modified asphalt (regardless of class) have been determined to be significantly more hail resistant.

The Insurance Institute for Business & Home Safety conducted a study and concluded that polymer modified IR (impact resistant) shingles performed up to 50% better than traditional IR shingles. A copy of their report is available here (A summary of the findings is found on page 15 of the report).

We are aware of only a few manufacturers that make asphalt shingles with polymer modified asphalt. Malarkey Roofing is one of them. Because polymer modified shingles may be slightly more expensive than traditional impact resistant shingles, we approached Malarkey Roofing about offering CIRSA members a rebate when repairing hail damage. We are glad to announce that for 2018 Malarkey has agreed to a $5 per square (10” x 10” roofing area) rebate, which should be roughly 4% to 5% of the shingle cost.

This rebate is payable directly to CIRSA members. In some instances, this roofing material may be considered an upgrade to the roofing material that was damaged, so this rebate may help offset any uncovered cost.

If you would like additional information regarding the requirements to obtain the rebate from Malarkey, please give Mike Wagner or Craig Stevens a call at 800.228.7136.

Tips To Help Prevent Workplace Violence

Today’s news headlines too often announce yet another violent incident. The most recent data available from the Bureau of Labor Statistics shows that 500 workplace homicides occurred in 2016 in the U.S.

In light of this frightening reality, what can Colorado public entities do to reduce the risk? Implement security measures, educate and train, and raise situational awareness to prevent and head-off dangerous, potentially tragic incidents. CIRSA created a video addressing this issue a few years ago, titled Facility and Personnel Security: A Comprehensive Plan for a Safer Workplace, which includes a handbook with a variety of different useful checklists.

  1. Assess physical security of facilities and operations – Barrier protection, fortifying the facility with steel barriers and protective landscaping, as well as making sure areas are well-lit are important. Here are some checklists from our manual that you can have in hand as you inspect buildings to determine exposures.
  2. Follow personnel policies and procedures – Due diligence includes following hiring, management and termination best practices and policies, which includes background checks. It’s vital to establish a culture in which employees feel comfortable reporting bullying or aggressive behavior.
  3. Address threats and violence in the workplace – Frequently review policies with employees, report bullying and, if possible, establish a threat and violence assessment team.
  4. Train for potentially volatile municipal activities – Balancing public access with employee safety can be tricky. Employees need to be aware of their exposure during council meetings, in municipal court, if they are in contact with the public in the field and when handling cash. Steps include:
    • Having police presence when needed
    • Openly set and enforce time limits for comments during public meeting
    • Train employees in conflict resolution techniques
    • Conduct financial audits
  5. Encourage general communication and conduct situational training – It’s critical for everyone to report suspicious activities. Mock security drills matter. Practicing the fastest way out of a building, where to gather to be accounted for and knowing where “safe rooms” with escape access are in the facility all help to diffuse the impact of violence.

As Coloradans, the Columbine tragedy, recent police shootings, as well as recent reports of damage to property or operational shutdowns are all too recent memories that make it imperative to take action. If you have questions, contact your Loss Control Representative at 800.228.7136.

Harassment Claims In The News: Lessons for Municipal Government

by Tami Tanoue, General Counsel/Deputy Executive Director

At 6 p.m., an employee meets with management to reveal the details of an accusation of sexual misconduct against another employee. By 6 a.m. the next day, the accused employee has been fired, and the employer makes a public announcement telling the world about the accusation and the consequences.

We’ve seen this and similar scenarios unfold in the media recently. But how “real world” is this scenario when applied to our world, municipal government, and are there any lessons to be learned from it?

At CIRSA, we frequently assist our members in dealing with accusations of harassment or related misconduct. Based on our experience, we can say that the above scenario is a pretty unlikely one in municipal government. Let’s count some of the ways.

Investigation? Most municipal employers, like their counterparts in the private sector, have policies prohibiting harassment and related misconduct on the basis of gender and other protected classes. Most municipal employers take allegations of harassment seriously. But an overnight firing seems very unlikely, because the first step in taking an allegation seriously is to investigate it. A full, fair, and credible investigation can take days, weeks, or months. So that’s the first way in which the above scenario doesn’t fit our experience: how much of an investigation could have been conducted in 12 hours or less? Unless the complaint was accompanied by irrefutable evidence, or the accused employee immediately made a full confession, the accusation is just that: an accusation. More is needed before action is taken. (Of course, what hasn’t been made public in the above scenario is the possibility that behind-the scenes investigation may have taken place for days or weeks before the meeting and firing announcement.)

Process? The speed with which the consequence was seemingly imposed in the scenario above is another difference. Personnel enactments in most municipalities would likely stand in the way of such speed. There may be charter or statutory requirements that must be followed, or personnel policies that provide a process for disciplinary actions. Although “at will” employers still exist among Colorado municipalities, internal processes may exist, even among those employers, that would make an overnight termination unlikely. And in those municipalities that have in place a “for cause” process with pre- and/or post-termination meeting or hearing rights, an overnight termination would be vulnerable to a legal challenge.

Transparency? Another difference is the public manner in which accusations play out when high-profile players are involved. For media figures in particular, there’s a logic to upholding transparency in an industry that demands it of others. But most employers are cognizant of the limits of transparency when it comes to personnel matters. Even in the public sector, open records and open meetings laws respect the need for confidentiality in some matters involving personnel issues. So it’s unlikely that a public employer would feel it necessary to make an unsolicited public announcement about a harassment allegation and its aftermath.

Timeliness? The timing of the accusations could be another difference. While we don’t know how far back the accusations extend in the scenario above, we’ve been seeing some public accusations of decades-old conduct against other high-profile figures. These old accusations may be newsworthy. They may be of public interest in situations where character assessments are pertinent. The public might find it worthwhile to gauge an accused person’s public positions or statements in light of allegations of private conduct against that person. But how would a municipal employer deal with decades-old accusations of harassment against a municipal employee? It seems unlikely that such old allegations could, by themselves, serve as grounds for serious and immediate disciplinary action today, absent some connection to more recent allegations, or highly egregious allegations.

Known? A final difference may be the degree to which allegations were known to the employer before they took the form of a formal complaint to which the employer finally responded. In at least some of the situations making the news today, it seems that the allegations were well-known to many, and perhaps had been circulating in the workplace or the larger community for years. A “whisper campaign” may have warned new employees about predatory bosses or co-workers, or a “burn book” of colleagues to avoid may have been circulating among employees. It’s hard to believe that some of these allegations didn’t reach the ears of the organization’s leaders, who would have been in a position to do something about them. Indeed, in at least one case, a complaint was made, but the leaders honored the complainant’s desire that nothing be done about it, and the complaint subsequently hit the news.

In municipal government, we know that the organization’s leaders have a responsibility to follow up appropriately even when the complainant wants nothing to be done, or refuses to put a complaint “in writing.” If there’s enough information upon which an appropriate follow-up can be done, then it should be done. Doing nothing under these circumstances, even if that’s what the complainant says he or she wants, harms the organization and everyone in it. The complainant and others may continue to experience mistreatment if the complaint would have been determined to be well-founded; or if a complaint would have been determined to be false or unsubstantiated, then the person who was wrongfully accused may be harmed. The organization and its leaders also lose credibility by not following the very policies they’ve put into place.

Conclusion. We’re hearing a lot about the “reckoning” happening now in workplaces around the country as a result of the highly public harassment accusations that have hit the news in recent months. There’s talk that the “me too movement” (which encourages people who have experienced harassment to share their stories on social media using the hashtag “#metoo”) is changing workplace culture. But these types of accusations are nothing new. In municipal government, we’ve worked diligently for decades to do the right thing when such accusations surface in our workplaces. We need to make sure that the spectacles making news in the worlds of entertainment, media, and politics don’t teach us the wrong lessons. Let’s continue to set the right example by:

  • Having in place a clear policy against harassment, setting out conduct standards and processes for addressing complaints, establishing protections against retaliation, and providing regular training on the policy;
  • Encouraging everyone in the workplace to do their part, both by meeting workplace conduct standards, and by speaking out promptly when concerns surface;
  • Carrying out a credible, fair, and thorough investigation when complaints surface;
  • Following up when there’s enough information to do so, whether or not a “formal” complaint has been made, and even if the complainant expresses a desire that nothing be done;
  • Imposing appropriate consequences following applicable procedures when it is determined that a complaint is well-founded; and
  • Exercising appropriate discretion about revealing personnel matters in public settings.

Sewer Backup Claim Prevention

By Mike Wagner, CIRSA Claims Manager

You’ve heard the saying that “crap flows downhill.” Yes, it’s true at least 99% of the time. As everyone knows, it’s that pesky 1% in life that causes the problems every time. Like when sewage decides to flow uphill.

In 1687 Sir Issac Newton published his laws of motion and universal gravitation called Philosophiae Naturalis Principia Mathematica. Apparently, Mr. Newton was a pretty smart guy, and this book was a pretty big deal. However, I’m just an adjuster, so I don’t know about that. What I can say from observation over the past 26 years is that there is some truth to how these laws apply to sewer backup claims.

Newton’s First Law of Motion states that an object in motion stays in motion with the same speed and in the same direction unless acted upon by an unbalanced force. In the world of sanitary sewer lines we are talking about tree roots, a grease ball, or a foreign object, such as a diaper, introduced to the sewer system that stops gravity and motion from doing their job. This is never a good situation.

While Newton’s First Law of Motion is extremely important, in the world of sewer backups it is Newton’s Third Law of Motion that gets everyone’s attention. This law states that For every action, there is an equal and opposite reaction. Said another way, when sewage enters someone’s basement, the amount of yelling and frustration that occurs is proportionate to the amount of sewage that enters their basement and the response that is provided by your entity.

Quite a bit can be said about adhering to a reasonable inspection and maintenance schedules. It is also important to understand the potential liabilities your entity faces, as well as, your immunities under the Colorado Governmental Immunity Act. CIRSA’s Loss Control Department has resources that can help with your inspection and maintenance program, and our Claim Department can assist with answering questions regarding governmental immunity and liability on claims. However, what I would like to focus on is what you can do now to help with future problems, and what you/your staff should not do when responding to one of these stressful events. It is how you respond to this equal and opposite reaction that can make all the difference. Here are some thoughts…

Train your public works personnel on claim response issues. The public works crew members who respond to the site of a sewer backup are your first line of both customer service and defense. Make sure you’ve equipped them with the knowledge and training they need to respond appropriately.

Provide your employees with a checklist for sewer backup response. Rehearse with them what they should and shouldn’t say, and create a handout that they can give to the homeowner providing information on steps they can take to sanitize and mitigate their loss. There are ways in which your public works personnel can help and provide good customer service without making blunders that may unfairly raise expectations and make resolution much more difficult.

Make sure they know what they should and shouldn’t say. Any statement to the effect that “We’ll take care of everything for you” is a very big problem. It has the potential to create an enormous amount of frustration and inflated expectations, and is the promise that never ends.

CIRSA will stand behind you with respect to the payment of damages to a claimant, but only if governmental immunity does not bar the claim. So if you’ve made a promise to the property owner (such as “we’ll take care of everything for you”), this promise will have to be fulfilled and may be incongruent with your CIRSA coverage.

Don’t contract directly with a cleanup company. When it is 8:00 at night and someone is yelling at you on the phone, it is difficult to not make promises or try to resolve the problem by calling a contractor yourself. Some CIRSA members have been pressured to contract directly with a disaster recovery company to perform a cleanup at a residence after a backup. That’s a big mistake, for several reasons:

  • CIRSA’s coverage only provides indemnity in the event we determine you are liable under the law to pay damages. If you’ve contracted with a cleanup company, and we determine that governmental immunity bars the claim, then you’re on your own with respect to your contractual commitment to pay the cleanup company!
  • Your entity may appear as a deep pocket, and not every contractor is ethical. It’s not out of the realm of possibility that the cleanup company will act as though it’s hit the jackpot. There have been instances when we’ve reviewed cleanup company bills that are grossly out of line in terms of the price charged for the work done. If you’ve committed to the company to pay whatever they charge, then you’ve put us all in an untenable position.
  • If you’re the one contracting with the cleanup company, the claimant’s going to blame you in the event of any dissatisfaction with the company’s work. Keep yourself out from the middle of such a mess by insisting that the claimant take the responsibility for selecting, contracting with, and overseeing the work of, the cleanup company.

Contact CIRSA immediately in the event of a backup incident. Take yourself out of the hot seat, file a claim and give your CIRSA claim adjuster a call as soon as you find out about a backup incident. These claims can be very traumatic for property owners and can make emotions boil over. They can also make a residence uninhabitable, which will drive up the value of the loss. These claims NEVER get better by waiting, so contact us as quickly as possible.

Like I said, it’s the pesky 1% that will cause problems every time. Obviously a proactive maintenance program is essential in keeping these losses to a minimum. But even the best maintenance program can’t prevent every backup from occurring. That’s why your immediate response afterward is important. Thinking through the problem before it happens, having a planned response in place, and training your employees in that plan can make everything go much smoother when Mr. Newton’s laws of physics kick in.

Handling Citizen Conflicts at Governing Body Meetings

by Tami Tanoue, CIRSA Executive Director

A good meeting is a thing of beauty. The governing body’s running on all cylinders. All members are engaged and informed, and each member has an equal opportunity to speak. Citizens have the opportunity to participate at appropriate points in the meeting, such as during public comment and in public hearings, and arrive well-prepared with a good understanding of the norms of expected conduct. There’s give-and-take as individual perspectives are aired, but discussions remain courteous and respectful. Time is used efficiently, and at no point are proceedings unnecessarily bogged down. The decisions made are wise, well-considered, even brilliant. And it’s not even midnight when the meeting is adjourned!

A bad meeting is nothing but frustrating. It’s chaotic and inefficient, with the same issues being rehashed over and over. Public comment period becomes a flash point for flaring tempers, rather than a constructive opportunity for citizen input. Or public comment period may go on for so long that everyone’s exhausted by the time the rest of the agenda rolls around. Things may get so out of hand that law enforcement has to step in to restore order. Only the loudest members get to participate in the discussion. The end result may be ill-considered decisions or no decisions. Meetings may commonly be referred to as the “Thursday (or pick the evening of your choice) Night Fights.”

Are your governing body’s meetings good or bad? If they’re bad, read on…these suggestions may help! If they’re good, these suggestions may take you from good to great!

The Groundwork: Rules of Procedure
First and foremost, rules of procedure need to be in place, and everyone needs to understand and follow the rules. If your governing body doesn’t already have rules in place, gather some examples from other municipalities. Make sure you’re not “borrowing” from a municipality whose legal structure is not the same as yours. Colorado municipalities come in 4 basic types: statutory mayor-council cities, statutory council-manager cities, statutory towns, and home rule municipalities (and there’s one “territorial charter” municipality, Georgetown). If you “borrow” from the wrong type of municipality, you may end up with procedural requirements that aren’t applicable.

Also, make sure the rules are reviewed from time to time by your municipality’s legal counsel. Legal developments may make some rules legally questionable or risky. You don’t want to find that out only after you’ve imposed them on someone!

The rules for conducting a meeting don’t need to be overly complicated. Many governing bodies default to using some version of Robert’s Rules of Order, but there are other rule sets out there that are less complex and more specifically suited to the needs of municipal governing bodies. For example, Colorado local government attorney Robert Widner has developed “Bob’s Rules of Order.”

Facility Issues
The place where you meet, and how it’s set up, has a big impact on meeting dynamics.  Not every governing body has the luxury of a well-designed meeting room set up specifically for its meetings. But almost any space of sufficient size will work. Make sure it’s set up meeting-style, though. Ideally, the dais/desks look out on the audience, perhaps in a curve so that members can also view each other.

Make sure you have a podium for citizens and other speakers. The absence of a podium creates uncertainty as to where a speaker should go in order to speak, and whether the speaker should stand up or remain sitting. A podium creates a natural way for speakers to be called on, stand, recognized and greeted, speak facing the governing body, and finally, yield the space and make way for the next speaker. The absence of a podium creates uncertainties in all of these things, and encourages disorder. Position the podium in the center of the room, if possible.

Look around the room and think about the possible ways in which disorder could break out. If things get too heated during a meeting and a recess needs to be called, do you have a quick way out of the room, or will you have to walk through a potentially angry audience? How close is the audience seated to the dais? Having some space between the dais and the audience seating can enhance security and reinforce the message that this is the governing body’s meeting, not a general public gathering. If space is limited, consider placing staff tables in that space as a buffer.

There will be times when the presiding officer will need to wield and use a gavel, so be sure and have one handy at each meeting. While not always necessary, the loud rap of a gavel can sometimes quickly shift the focus of the attendees to the presiding officer, who can then restore order.

The Presiding Officer and Governing Body Members
The presiding officer, typically the Mayor, plays a pivotal role in maintaining order and keeping the meeting moving forward. A great presiding officer leads by example in establishing a culture of civility during meetings. He or she makes sure that discussions don’t get bogged down, that clarity is achieved, and that each member has a fair chance to speak. Difficult situations are handled with courtesy, finesse, generosity, and sometimes, humor.

Each member of the governing body likewise plays an important role in an orderly and productive meeting. Members reinforce the culture of civility, and “walk the talk” by recognizing the authority of the presiding officer, waiting to be recognized before speaking, not arguing back and forth, filibustering, or monopolizing the discussion, and staying on topic. Members can also provide timely assistance when things start to get out of hand, by, for instance, requesting a short recess to cool things off.

Setting a good example for civil discourse on the governing body’s side of the room will let everyone see and understand what the expected norms of conduct are in your council chambers or board room. On the other hand, if the behavior you model during meetings is uncivil, undisciplined, unproductively long-winded, off-topic, etc., then you can expect to see the same conduct reflected back at you from the public’s side of the room.

Public Comment Periods
Many governing bodies have at least one general public comment period during their meetings (in addition to any public hearings on specific agenda items requiring a hearing). Public comment periods provide a great opportunity for citizens to speak their minds and ask questions about issues of concern to them. Public comment periods are one of the reasons why municipal government can properly call itself the government that’s “closest to the people,” and is to be valued and treasured.

But it’s easy for public comment period to turn into “public inquisition period,” “public cross-examination period,” or “pubic argument period.” How does this dysfunction occur? Most of the time, the dynamics that turn public comment period dysfunctional are in the hands of you, the members of the governing body! If you allow yourself to argue back during public comment, or try to provide instantaneous responses to every question asked during public comment, then you’re sowing the seeds of dysfunction.

As governing body members, you will always have the last word on every issue within the province of the governing body! So it’s not necessary to argue back, or to try to have the last word during public comment. Whatever is said should simply be accepted for what it is…public comment. Don’t take the bait even when inflammatory comments are made.

Also, don’t set citizens up to expect an immediate response on every question that’s raised during public comment. If you do, a couple of adverse consequences could result. One, you could be inserting yourselves into an ongoing discussion that your administrative staff may already be having on that very topic with that very citizen. You don’t want to jump out in front of your staff in such a situation, especially if the issue is an administrative one to begin with. Second, you could end up giving a premature, incorrect, or thoughtless response.

There are times when public comment period appears to be getting out of hand. The tone may get harsh and personal. Profanity may be used. Individuals, such as staff members or even governing body members, may be singled out for harsh criticism. Objectionable topics may be raised. But keep in mind that, as the governing body, you can’t suppress the content of public comment; that would be inconsistent with First Amendment protections. Conduct is another matter. So, for example, citizen conduct that is actually disruptive of your meeting can be regulated (but make sure that it’s the citizen’s conduct that is disrupting the meeting, not your reaction to that conduct). Time limits on public comment can be enforced. Times when the public may and may not speak can be established. But make sure you have rules in place so that everyone knows what your expectations are, and enforce those rules consistently and even-handedly.

And finally, it’s important to accord every citizen a presumption of good faith and good intentions, and to treat each citizen with respect. You may have heard the same things over and over during public comment, and you may be sick of it. But for the citizen, this may be the first and only time that he or she has gathered the courage to come before you. That deserves respect! And if the citizen is a public comment “frequent flyer,” respect is still warranted, even if you have come to feel that his or her comments have no value. If a citizen perceives that he or she is being disrespected, disregarded, or even demonized, then you’ll be creating or worsening divisions, not bridging them.

Conclusion
When a meeting is run well, the governing body’s decisions are greater than the sum of its individual parts. There’s a collective genius that happens when all members are able to bring their individual wisdom, experience, and perspective to decision-making. But this collective genius can’t happen in a disorderly setting, and it can’t happen unless each member commits to creating an environment of mutual respect, good faith, and trust. Make sure you have in place the elements that will make your meetings a “thing of beauty.”

Preparing Your Buildings For Winter Weather

The winter weather in Colorado is notoriously unpredictable – warm temperatures and sunshine one day, cold and snow the next. So what can be done to protect your buildings from winter weather?

Planning before the winter weather hits is important! To begin the process of “winterizing” your buildings, you should look closely at the roofs and walls, access, heating and cooling systems, fire protection systems, security and communication systems, and water supplies.

Access to Buildings:
Arrangements should be made to ensure emergency access on all roads leading to the facility. Snow removal services should be in place through the entity, county, or a private contractor.

Facility Roofs:
The largest weather-related property damage results from roof system failures. High winds and drifting snow can challenge the best roof designs. Inadequate heating of structures can cause overloading as well. To help prevent roof damage or failure, follow these steps:

  • Remove excessive snow accumulation from the roof, especially from vulnerable areas.
  • Make sure roofs that slope towards internal drains have slopes of at least 1/4 inch per foot.  If not, check routinely for ponding water during the winter months.
  • Examine the roof for any structural problems – leaks are usually the first sign of a problem.
  • Clean all drains, gutters and down spouts.

Heating Systems:
The failure of a heating system may not only cause roof problems, but it can impair fire protection systems and cause extensive water damage as pipes freeze and burst. Heating systems, including all fuel-burning equipment, should be routinely checked and tested in advance of the cold weather.

Fire Protection Systems:
Buildings protected by wet pipe sprinkler systems should have thermostats set to temperatures above 40° F, and unattended buildings need a protective signaling device to monitor low building temperatures.

Do’s & Don’ts For Selecting Outside Investigators

by Tami Tanoue, CIRSA General Counsel/Claims Manager1

It’s a given that a police department depends on the skills of its investigators to solve crimes, follow up on complaints, and otherwise fulfill the department’s mission. But investigative skills are important in every department, not just the police department. This article focuses on the use of outside investigators in human resources-related internal investigations.

What’s The Role Of Investigations In My Department?

It’s likely that your personnel manual includes a process for receiving, investigating, and following up on employee complaints. Policies prohibiting sexual (and other protected category) harassment, anti-discrimination policies, anti-retaliation policies and policies prohibiting bullying and workplace violence are among those that commonly include such a complaint mechanism. These policies serve several important purposes:

  • They apprise employees of certain unacceptable behaviors;
  • They provide a way for accusations of unacceptable behaviors to be brought to management’s attention;
  • They help ensure that appropriate consequences are imposed for verified accusations; and
  • Properly implemented, they help shield the municipality from the liabilities associated with such behaviors.

Your City/Town Attorney can advise you on when an investigation is warranted under applicable laws or internal policies, and how to conduct the investigation.

Who Should Act As Investigator?

Municipalities that are fortunate enough to have a human resources (HR) department can usually rely on its HR professionals to fulfill the investigative function when a complaint is received. In other municipalities, that function may be fulfilled by a supervisor, a department head, or the Manager/Administrator.

In some circumstances, it’s possible that staff handling of an investigation may be inappropriate or inadvisable. For example, if a complaint is made against the Manager/Administrator, or one or more elected officials, then there may be no one in-house who can credibly handle the investigation. As another example, if a professional standards complaint is made by a police officer against the Chief and other high-level departmental personnel, it may be inappropriate for the complaint to be investigated using internal resources, when the investigator is supervised or reports to the accused and an assertion of bias could be made. Your City/Town Attorney can advise you about circumstances when it would be inappropriate to handle an investigation in-house.

So We Need An Outside Investigator

Let’s say you’ve received an HR complaint and, with the City/Town Attorney’s help, you’ve determined you need an outside investigator. Where do you turn?

The answer may depend in part on the nature of the complaint. A law enforcement-related complaint often requires expertise in police policies and procedures, and familiarity with the law enforcement environment. A complaint of sexual harassment may require expertise in harassment policies and applicable laws.

You may be fortunate to find free assistance. For example, a neighboring police department might be willing to lend you the services of its internal investigations unit. But free assistance can be difficult to find, and you can go to that well only so often before you wear out your welcome.

There are consultants and companies that can be engaged to fulfill the investigative function. But you need to choose very carefully. A poorly handled investigation can be worse than no investigation at all. At CIRSA, we have handled member claims where the investigation was either not helpful, or placed the member at greater risk than if no investigation had been done. Some considerations to keep in mind when engaging an outside investigator include:

  • The investigator needs to have prior experience in HR or police investigations, as the circumstances warrant. You don’t want to be the municipality providing “on the job training” in this critical function.
  • The investigator needs expertise in the subject matter of the investigation, as well as the work culture from which the complaint arose. There are unique and complex elements in the municipal environment. You may not want someone unfamiliar with the law enforcement culture, for instance, to do an investigation of a complaint within the police department.
  • The investigator must be able to follow your instructions and applicable policies on the scope of the investigation and the manner of investigating, including any procedural or notice requirements that exist. You don’t want an investigator to freelance or delve into areas that are not part of the scope of the investigation.
  • The investigator needs to be neutral and impartial, and perceived that way. Someone who’s affiliated with an organization that seems to have a partisan interest in one side or the other of the employer-employee relationship may not be perceived as neutral or impartial, even if he or she is.
  • The investigator must have the skills to draw information from possibly reluctant or hostile interviewees. Excellent interviewing skills and a sound knowledge of interviewing techniques, are critical.
  • The investigator must have excellent organizational, analytical, and writing skills, and the ability to make accurate findings of fact and pertinent conclusions. If you want recommendations in connection with the matter being investigated, the investigator needs to be willing to provide them.
  • The investigator must be willing to stand behind his or her investigation and be willing to testify at a hearing or in court about the investigation. He or she must be a credible, articulate, and truthful witness if required to testify.
  • And the investigator must be able to do all of the above without costing you an arm and a leg!

Questions To Ask Before Engaging An Outside Investigator

Will you be interviewing prospective investigators? Here are some questions you might consider asking:

  • What is your hourly rate, and what expenses are charged separately?
  • What is your experience doing HR or police-related investigations, as the circumstances warrant?
  • Are you willing to discuss your draft findings and conclusions orally before providing them in writing? Are you willing to set your findings and conclusions in writing, and provide recommendations if requested? Are you willing to make definitive findings, rather than merely stating that a particular factual circumstance may be “more likely” or “less likely” to exist?
  • What is your experience working with personnel policies and Title VII of the Civil Rights Act (concerning employment discrimination) or other Federal laws and counterpart state laws?
  • Are you willing to testify at an administrative hearing concerning your investigation? To testify in court? What is your experience testifying in hearings or in court?
  • Is your company or organization affiliated with employee or employer interests, or independent of such interests?

How Can CIRSA Help?

If you have an internal investigation situation that you think is likely to turn into a claim sooner or later, please contact us for help in assessing the situation. If it appears to us that pre-claim assistance would help ensure that the matter is handled properly, and reduce the likelihood or magnitude of a claim, the opening of a claim file may be appropriate at the pre-claim stage. By opening a claim file, you can obtain the assignment of an attorney from our defense counsel panel to provide you with intensive one-on-one assistance. If the attorney advises that an internal investigation using an outside investigator would be appropriate, the cost of the investigator will be charged to the claim. You would be responsible for the payment of the applicable deductible on the claim, but other costs would be borne by CIRSA.

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1The assistance of Andy Nathan and Marni Nathan Kloster of the firm of Nathan, Bremer, Dumm & Myers in providing suggestions and reviewing a draft of this article is acknowledged with thanks.

Nine Practices of Highly Ineffective Councils and Boards

by Tami Tanoue, CIRSA Executive Director

Recently, CIRSA management staff became acquainted with John Carver’s Policy Governance® model (Model) for boards of public and nonprofit bodies. This month’s column provides some observations about the tough job of governing body members, and some of the ways in which a council or board can allow its effectiveness to be diminished or compromised. To understand the Model, how it works, and how it is implemented, Carver’s book, Boards That Make a Difference: A New Design for Leadership in Nonprofit and Public Organizations (3rd ed. 2006), is highly recommended reading.

For those who’ve labored in local government for any length of time, Boards That Make a Difference will provide some laugh-out-loud moments of self-recognition. It describes a number of common practices that are a drain on the effectiveness of the governing body and a source of frustration for both the body’s members and the staff who serve it.

Do Any of These Practices Ring a Bell?

Spending time on the trivial. As the author describes it, “Major program issues go unresolved while boards conscientiously grapple with some small detail.”  How many times have you gotten mired in the tiniest detail of a purchasing decision, or the proposed budget?

Foreshortened time horizons. The board’s decision-making time horizons should be the most distant of anyone in the organization. Yet, as Carver says, “we find boards dealing mainly with the near term and, even more bizarre, with the past.” How many times have the pennies spent in the prior months, as reflected in the “bills for approval” portion of the agenda, received undue attention at your meeting?

Reactive rather than proactive stance. Is the idea that the board should make proactive decisions, rather than merely react to staff initiatives, completely foreign? Would, as the author says, your board “cease to function” if it were asked to create its own agenda?

Going over what the staff has already done. “Reviewing, rehashing, redoing,” is what the author calls it. Some boards spend a great deal of their time going over what the staff has already done. But as the author says, “reviewing, rehashing, and redoing staff work – no matter how well – do not constitute leadership”!

Problem-based prescriptions. If you prescribe a specific solution based on the details of a specific problem that has occurred in the past, you may wind up with a “pendulum swing” that creates unintended consequences in the future. As Carver says, “Correcting insufficiencies by looking backward at what they have been simply invites the next, perhaps opposite error. It is like trying to drive down the highway with a firm grip on the rearview mirror.”

Accountability being allowed to leak. Have you established a City/Town Manager or Administrator position? If so, great! But are you still continuing to encourage or allow council/board member interactions with subordinate staff, or subordinate staff members to bypass their supervisors and directly go to council/board members with their issues or complaints? If so, you may be keeping the Manager/Administrator from being able to do his or her job, or you may be interfering in such a manner that you can no longer credibly hold him or her accountable for performance.

Diffuse authority. When the governing body’s and staff’s respective areas of responsibility are not clearly delineated, the staff’s knee-jerk response for every issue in a gray area may be, “Let’s take it to the council.” If you allow this, you’ll continually increase your own workload without ever clarifying the appropriate boundaries between council/board governance and staff decisions.

The “Approval Syndrome.” Does your agenda call for the governing body’s approval of documents containing a multitude of paralyzing details (line item budgets, detailed personnel and administrative policies, job descriptions, etc.)? How does this make you feel? The document has already been created, and you’re just reacting to it. Then, to avoid feeling like “rubber stamps,” board members may start nitpicking.  But as the author says, “no matter how much intelligence goes into playing this reactive role, it is clearly not leadership.”  Moreover, by its approval, the board has been co-opted into assuming ownership of the document, and staff is let off the hook in terms of accountability for the results expected from the document!

The “seductive intrigue of organizational activity.” You know how, when you’re faced with a huge project, sometimes the easiest way to procrastinate is to divert your attention to desk-cleaning or some other trivial task? That’s the “seductive intrigue” that can pull you into involvement in the organization’s internal minutiae.  It can be a heck of a lot easier to divert your attention to those details than to grapple with the big issues involved in governing your entity. But governance shouldn’t be about bringing the council/board more knowledgeably into the process of administration. A governing body need not and should not tag along behind management, or try to become “superstaff” in a “conscientious attempt to tag along more professionally.”  You’ve got grander things to do as the governing body!

So What’s The Answer?

Well, no doubt John Carver would say, “Adopt and implement my Model!” Of course, that will require time and effort, an unswerving commitment, and probably the help of a Policy Governance® consultant. In the meantime, here are a few suggestions from Boards That Make a Difference to ponder.

  • View yourselves as an extension downward from ownership, rather than an extension upward from management. As mentioned, your job is not to be “superstaff,” much less “supermanagement.” As the representative body for the citizens – the true “owners” of the community – your job is to exercise ethical and trusteeship responsibilities on behalf of the ownership.  Viewed in that light, it becomes apparent that neither the championing of management decisions, nor substituting your judgment for that of staff, are part of those responsibilities.  To be true leaders, you need to “develop a taste for the grand expanse of the larger context,” as Carver says.
  • You determine the “ends.” Leave the “means” to the staff.  It’s important to read Boards That Make a Difference in order to understand fully what Carver means by “ends.”  Briefly, “ends” are the results or outcome to be obtained or the impact to be made, for whom, and at what cost or relative worth. You could call the “ends” the “what and the why.”  Everything else falls into “means,” or the “how.” Once you determine the “ends,” give staff the latitude to determine the “means.” After all, they were hired for their skill and expertise in means, weren’t they? Aren’t they in the best position to determine the means? If the governing body becomes involved in means, you may be simultaneously impairing your staff’s ability to exercise their best judgment, and crippling your ability to hold them accountable for the achievement of the ends. Who’s to blame if you dictated the “how” and the result was a shortfall in achieving the “what”?
  • Set appropriate boundaries on the “means.”Leaving the means to staff doesn’t mean unbridled discretion. We all know that there’s a limit to the idea that “the ends justify the means.” Carver maintains that the governing body’s legitimate involvement in means is to prohibit any means that are imprudent or unethical. But the way to do that is not with a set of prescriptions – what must be done. Rather, the right way to do that is with proscriptions – what must not be done. Why? Well, there aren’t enough hours in the day or enough specialized knowledge on the board to define all the things that must be done. But the board certainly has a legal, moral, and ethical compass. That’s why defining what’s prohibited as imprudent or unethical is a more effective and efficient means of putting a boundary past which means cannot go.
  • Govern yourself before governing others. Carver recommends that the governing body take the time to design and codify its own processes, including a board member code of conduct. One of the many helpful examples in Boards That Make a Difference is a sample code of conduct.  Anyone who’s experienced dysfunctional behavior within a governing body knows that negative interpersonal dynamics can destroy the governing body’s effectiveness as well as its credibility with its constituents. But how can a board deal with inappropriate behavior among its own if it hasn’t first determined what constitutes appropriate behavior? With a sound and mutually agreed process, personality need not become the dominant force in shaping issues and dealing with disagreements and confrontations.

What’s This Have to do with Liability Anyway?

Since this is a CIRSA Coverage Line article, you may be wondering what linkage to liability issues justifies its existence on these pages.  Well, it’s easy to see that the problems identified by Carver as obstacles to good governance are also problems that can lead to increased liability for elected officials.  For instance, if your role in relation to staff’s is unclear, how are you or staff going to know what is within the scope of your authority and what is within the scope of theirs?  Falling outside the scope of your lawful authority is one of the sure ways to lose your liability protections.  And it follows that Carver’s approach to good governance also provides excellent risk management suggestions.  Both board and staff can flourish within their respective spheres of authority without stepping on one another, maintain appropriate accountability, and ensure that the work of the public entity will be carried out within the boundaries of prudence and ethics.

Conclusion

This article has pulled out bits, albeit helpful bits, of Boards That Make a Difference for you to consider. Reading the book is highly recommended, because the Model really makes the most sense when viewed in its entirety.

Finland Study Says Bad Bosses Cause Heart Attacks!!!

by Tami Tanoue, CIRSA General Counsel/Claims Manager

You probably saw or heard recently the sensational headline that begins this article. While this study received wide media coverage, few of the reports actually provided any details. It turns out to have been a scholarly examination of the effect on employee health of injustice or perceived injustice at work. The study provides some insights on the management and supervisory environment that can lead to unhealthy stressors in the workplace.

The Study Results

The study, published in the October 24, 2005 issue of the Archives of Internal Medicine, surveyed 6442 male British civil servants aged 35 to 55 years without prevalent coronary heart disease (CHD). The researchers found a clear association between employees’ perception of a just and fair workplace and a decreased incidence of coronary heart disease. In men who perceived a high level of justice, the risk of CHD was 30% lower than among those who perceived a low or an intermediate level of justice.

According to the researchers, this finding was not accounted for by baseline factors such as age, ethnicity, marital status, educational attainment, socioeconomic position, cholesterol level, obesity, hypertension, smoking, alcohol consumption, and physical activity. The association between the level of justice and CHD was also independent of other psychosocial factors at work.

The Study Questions

While this result is certainly interesting, and filled with implications from the standpoint of employee wellness, equally interesting were the questions that were used to measure employee perceptions of a just workplace. The key survey questions were:

  • Do you ever get criticized unfairly?
  • Do you get consistent information from line management (your superior)?
  • Do you get sufficient information from line management (your superior)?
  • How often is your superior willing to listen to your problems?
  • Do you ever get praised for your work?

These study questions provide some insights into the management and supervisory behaviors that can lead to employee perceptions that the workplace is a just or unjust one.  Of course, some employees perceptions just can’t be altered despite reality, but doing all you can to provide both the perception and reality of a just workplace is a worth.

Providing a Fair and Just Workplace

Here are some issues to consider in gauging and increasing the level of “justice” in your workplace.

  • Are your employee evaluations fair and consistent? Do you resist the urge to “inflate” the evaluation out of a mistaken belief that you might be providing positive motivation? If you downgrade an evaluation in relation to a prior one, do you make certain that you can identify the factors that justify the downgrade?
  • Are you aware of these factors that might tend to influence an evaluation improperly:
    • The “recency” effect, where a significant event that occurs just before you do the evaluation influences the entire evaluation?
    • The “primacy” effect, where a significant event that occurred early in the evaluation period colors the entire evaluation period?
    • The “halo/pitchfork” effect, where a single very positive or very negative factor being evaluated influences your view of every other factor?
    • The “contrast” effect, where the person being evaluated suffers by comparison, because the previous person you evaluated is a “superstar” (or vice versa)?
  • Do you give employees a fair opportunity to participate and provide input during performance evaluations? Are you compassionate in any criticism? Do you set specific goals and measurements for those goals? Do you discuss problems that may be hampering performance, with a focus on listening with an open mind and achieving mutual “buy-in” to solutions?
  • Managers and supervisors hate “surprises” from those they supervise, but do you treat those you supervise as you would like to be treated with respect to “surprises”? Do you give adequate time for employees to do quality work and meet deadlines, or are you prone to dropping last-minute “rush” projects on them? Do you think through your instructions so that they’re clear and complete, or do employees waste time or have to re-do work because your instructions weren’t well thought out?
  • If you need to terminate someone’s employment for poor performance, is the termination something that the employee will understand and perhaps even have expected? This is another area where avoiding surprises will work to everyone’s benefit. If you’ve made your expectations clear, set achievable performance standards, and provided the tools and time to meet those standards, then you’ve been just. By doing so, you’ve supported the employee and provided the employee every fair opportunity to succeed. If the employee fails, a termination will likely be justified and defensible, and will not come as a surprise to the employee.
  • Do you make sure that employees learn about workplace developments directly from the source, rather than from the rumor mill? Rumor management is particularly important when the developments are or might be perceived as negative, but even neutral or positive developments can become the subject of corrosive rumors. Rumor-spreading can cause morale destruction throughout a workplace, without supervisors or management ever knowing what’s going on. Are changes in benefits being considered? Are wage freezes or layoffs a possibility? Anytime the organization has plans in the works that may affect employees, make sure those plans include ways to provide information to employees early and often:
    • Implement a comprehensive communication campaign, be truthful, and allow opportunities for questions to be asked and answered. Make sure all levels of managers and supervisors are well-versed in the issues and well-trained in their communications roles.
    • Confront tough questions honestly and accurately. Don’t try to put an unrealistic positive “spin” on something that’s going to be bad. Make sure you don’t take a defensive or punitive approach towards critics or tough questioners.
    • To achieve better “buy-in,” make sure employees understand the reasoning behind the plans. Why are the plans being pursued? What are the goals sought to be achieved? What alternatives were reviewed? What would happen if the plans weren’t implemented?
    • Identify the key “rumor-mongers” in the organization, and focus on neutralizing their negativity or, if possible, making them your allies in communicating accurate information. Those who are able to make a negative impact on co-workers often have leadership and communications skills that might be redirected for positive purposes.
    • Keep in mind that “venting” isn’t necessarily a bad thing. If the entity’s plans may negatively impact the workforce, look for ways to acknowledge and address the anger and unhappiness that are likely to surface, and provide coping mechanisms. Don’t just ignore an anxious or unhappy workforce – the situation’s not going to get better or go away by itself.
    • Even during “quiet” periods, keep the rumor mill down to a dull roar by having regular staff meetings and using other opportunities for regular communication. Share information even if you think it would be of little or no interest. You may be surprised at the interest people have in what you think are boring, routine details, especially if they’re not involved in them day-to-day.
  • Do all supervisors and managers understand that maintaining and living by an “open door policy” is a key job responsibility? You may want to close your door or put your phone on “do not disturb” to get done what you think of as your “own” work. But if you do that too frequently as a supervisor or manager, think about the messages you’re sending: “Stop bothering me. Your problems are not important to me.” Don’t think of employee phone calls or drop-bys as “interruptions” in your “own” work, but as an integral aspect of supervising, managing, mentoring, and problem-solving. Listening to your employees is indeed part of your “own” work!
  • And finally, is your workplace praise-deficient? Don’t take your good performers for granted. They may be self-confident and self-motivated, but who doesn’t appreciate praise? One study found that “limited praise and recognition” was a primary reason why employees leave their jobs – ahead of compensation, limited authority, and personality conflicts! A praise-deficient employee is an employee who doesn’t feel valued and respected, who doesn’t feel that he or she is making a contribution to the organization, and who’s going to run out of motivation sooner or later. And don’t overlook your “weakest links,” either. Praise is a powerful learning tool. Reinforce any signs of improvement, no matter how slight, with praise. Be specific, so they understand which behaviors have earned your praise and should be repeated.