ON ANY GIVEN MONDAY --- It could happen to you!

Transcription

1 ON ANY GIVEN MONDAY --- It could happen to you! A RISK MANAGEMENT SEMINAR FOR MUNICIPAL EMPLOYERS PRESENTED BY SIANA, BELLWOAR & MCANDREW, LLP ON BEHALF OF THE CHESTER COUNTY ASSOCIATION OF TOWNSHIP OFFICIALS

2 TOPICS FOR DISCUSSION I. The Roles of Elected Officials, Management and Non-Supervisory Employees and How to Ensure Accountability within your Township II. III. IV. How to Handle the Rogue Public Official! What is a Hostile Work Environment Really? The Whistleblower Law: Who is protected and how it can be abused V. How to Police the Police Department VI. VII. Municipal Government Risk Management and Loss Control Suggestions Street Smarts

3 SCENARIO #1 Trouble in Shangri-La What could go wrong did.

4 Trouble in Shangri-La Shangri-La is a Township of the Second Class, governed by a three-member Board of Supervisors. The Township does not employ a manager or police; Township Supervisor Ed, is the primary point of contact for residents. Jane, an attractive 20-year old female, is employed by the Township as the Director of Parks and Recreation. Township Supervisor, Chester, is employed by the Township as the Road Master; Chester supervises Jane.

5 One day during work hours, Chester and Jane were in the Township garage gathering supplies to clean up the Township Park. Township laborer Billy walks into the garage and observes Chester hugging Jane from behind. Jane appears to be upset. Chester lets go of Jane and walks up to Billy stating, it looks like you need a hug too and attempts to hug Billy. Billy says no thanks.

6 Jane tells Billy that Chester has been sexually harassing her for several months. Billy suggests that Jane should report Chester to the other two Board members. Billy tells no one about this. Jane does not complain to the Board for fear of losing her job. Chester continues to touch Jane on a number of occasions and also asks her about her sex life and how she likes it. Jane later tells Jill, a Township secretary about her troubles with Chester. Jill has also suffered from sex harassment at the hands of Chester --- for several months. Jill reports her complaints, as well as Jane s complaints to Supervisor Ed.

7 Ed tells Jill that he will consult with the Township Solicitor on how to handle the complaints. The Solicitor advises that the Township should tell Jill that she and Jane have two options: 1) report Chester to the state police; or 2) retain a private attorney. Ed informs Jill and Jane of the options. In the meantime, Chester continues to report for work, harassing Jane and Jill on a daily basis. Jane calls the state police.

8 The state police interview Jane and Jill who tell them about the months of harassment by Chester. A state trooper contacts Ed that a criminal investigation has commenced and directs him not to take any action --- and not to advise Chester of the investigation. The state police investigation includes placing a wire on Jane who has an audio-recorded conversation with Chester in the Township park. Chester tells Jane that he thinks she is sexy and just can t help himself from touching her and talking dirty to her.

9 The state police interview Chester who denied making any inappropriate statements (not knowing that the conversation was recorded). Chester is arrested and charged with several offenses associated with offensively touching and harassing Jane and Jill. After Chester s arrest, the Board of Supervisors place Chester on a leave of absence as Road Master and prohibit him from entering the Township building. Chester pleads no contest to the criminal charges and serves 90 days in jail. The Board terminated Chester as Road Master. Chester resigned his position as Supervisor.

10 Shangri-La Justice is served and all is well, right? (Not so fast)

11 Shangri-La Jane and Jill file a complaint with the Pennsylvania Human Relations Commission alleging that they suffered severe emotional distress as the result of several months of sex harassment at the hands of Chester. The claim is submitted to the Township s insurance carrier, which assigns defense counsel.

12 In the initial meeting with the Board, defense counsel inquires about the following: Did the Township have a published policy prohibiting sex harassment, with a procedure to handle complaints? Did the Township ensure that all employees, including Jane and Jill received and understood the policy? Did the Township take prompt action to investigate and take remedial action once it was known that the women were being harassed? Did the Township have any record of workplace training addressing harassment in the workplace?

13 The answer to All questions: NO Jill and Jane file a federal lawsuit.

14 Scenario #1 Legal Issues I. Duty to prevent sex harassment II. Duty to promptly investigate and take remedial action III. Liability of individual supervisors under PHRA and Section 1981 IV. Liability of Township under Monell

15 Scenario #1 Helpful Tips I. Ensure that the Township has a properly drafted harassment policy that is issued to all personnel. Acknowledgment forms must be signed and placed in each employee s personnel file. II. III. IV. Ensure that the Township conducts periodic workplace training Ensure that the roles and responsibilities of those involved in the investigation are made clear, and set deadlines for tasks. This should be in writing. Rule 68 Offer of Judgment

16 SCENARIO #2 Firing the Whistleblower: Beware!

17 Pleasantville Township - Firing the Whistleblower: Beware! Pleasantville Township is a Township of the Second class governed by a three-member Board of Supervisors. The Township does not employ a manager. Mary, the appointed Township Secretary/Treasurer works full-time and is the primary point of contact for residents. Mary has served as the Township s secretary/treasurer for the past 15 years and has never been reprimanded for poor performance.

18 Pleasantville Township - Firing the Whistleblower: Beware! In January of 2012, two new Supervisors were elected to the Board, Rich and Ron. Upon taking office, Rich and Ron discover that Mary smokes cigarettes in her office (in violation of state law). They direct her to stop and post several No-Smoking signs inside the building. Mary removes some of the no smoking signs.

19 Rich and Ron verbally reprimand Mary for taking down the signs. The Township Auditors --- newly elected and inexperienced in conducting a Township audit --- request the Board for access to Township records in the summer preceding the next fiscal year --- to get a jump on things to ensure a thorough audit. The Board authorizes the Auditors to enter the secretary/treasurer s office after hours while Mary is not on site. The Auditors are given keys to open all filing cabinets, including personnel files and medical records.

20 Mary complains to the Board that the Auditors should not have unrestricted access to Township records, especially confidential personnel files. The Auditors discover that Mary failed to notify the Board that the police pension was substantially underfunded. A letter from the pension plan administrator --- directed to Mary --- warned of the shortfall and contained recommendations on how to remedy the problem. The Board does not document this issue in writing and does not reprimand Mary for not advising the Board about the shortfall.

21 In December, the Township Zoning Officer issued a building permit to a developer before the Board gave final approval for the subdivision. The Zoning Officer issued the building permits before January 1st so that the developer would not be required to install fire sprinklers, which would be required by a newly enacted law in January. Mary tells the Zoning Officer that he should not issue the permits before final plan approval. The Zoning Officer tells Supervisor Rich about Mary s concern. Rich tells the Zoning Officer not to worry about Mary.

22 At the January re-organization meeting, the Board votes to appoint Tom as the new Secretary/Treasurer. Mary is not told why she was replaced. She thought that she resolved outstanding issues with the Board. At the February Board meeting, the new secretary/treasurer, with the Board s approval, issues a report containing numerous deficiencies in the manner in which Mary performed her duties. Plaintiff announces her candidacy for an open seat on the Board of Supervisors.

23 The Auditors subpoena Mary to appear to testify concerning her performance of duties as secretary/treasurer. The auditors inquire about Mary s use of vacation and personal days as well as her smoking habits inside the Township building. In March, the Board of Auditors issues a report containing a list of deficiencies found in the secretary s office including misfiled records, unpaid bills, discrepancies in accounting, her overuse of vacation days and her smoking in the building. The Auditors impose a $1, surcharge upon Mary for: 1) Township s cleaning bill incurred because Mary smoked cigarettes in the building and for 2) too many vacation and personal days.

24 Mary files a lawsuit against the Board of Supervisors, the Board of Auditors, the Zoning officer, Solicitor, and Secretary/Treasurer. She claims that she was fired in violation of the Pa Whistleblower Law. She also asserted claims of defamation arising from the public disclosures made by the Board, Secretary and Auditors. She claimed that the solicitor conspired to commit defamation on grounds that he reviewed and approved the management report issued by the new secretary. She also claims that the Auditors committed abuse of process by requiring her to appear and testify about matters that had nothing to do with a Township audit.

25 Scenario # 2 Legal Issues I. Whistleblower Law and Good Faith Report of Wrongdoing II. III. IV. First Amendment -- Free Speech Clause Defamation Abuse of Process

26 Scenario #2 Helpful Tips I. Document poor performance issues, share the documentation with the employee and have the employee acknowledge receipt of the documented action. II. III. IV. Ensure that personnel issues are handled internally and discreetly Avoid publicizing the employee s poor performance After the employee is separated, LET IT GO

27 SCENARIO #3 The Rogue Supervisor

28 The Township is governed by a five member Board. Supervisor Martina believes that the Board, the Township Secretary and a number of Township employees are corrupt. On almost a daily basis, Martina directs the Secretary to provide copies of Township records, including copies of personnel files of some of the Township employees. The secretary, who is Jewish, complains to the Board that she is being mistreated by Martina who has made anti-semitic remarks about her and harasses her with constant demands for Township records.

29 The Board addresses the complaint with Martina in executive session. Martina claims that she is entitled to all requested records and denies making anti-semitic remarks. Martina persists in her behavior. The Secretary files a complaint with the Pennsylvania Human Relations Commission alleging that Martina created a hostile work environment.

30 Defense counsel is assigned to represent the Township by the Township s insurance carrier. Defense counsel meets with the entire Township Board. Martina attended the meeting. Before the meeting began, a Township Supervisor warns defense counsel that Martina would most likely secretly record the meeting.

31 Martina placed a large purse on the conference room table. Defense counsel asked Martina whether she was recording the meeting and that she did not have permission to record the meeting. Counsel advised her that secretly recording the meeting would be a violation the PA Wiretap Act. Martina got up from her chair, grabbed her purse and stormed out of the conference room. The meeting was conducted without Martina. During the meeting, some of the Supervisors corroborated the Secretary s complaints that Martina harassed her by constantly demanding copies of records and used profane language.

32 Defense counsel issued a letter directed to all Supervisors, including Martina, advising that Martina s actions could expose the Township to liability under the Pennsylvania Human Relations Act. Defense counsel receives a call from the PHRC Investigator who advises that --- Martina gave her a copy of counsel s letter! Defense counsel immediately advises the Board that Martina had disclosed an attorney-client communication to the PHRC. Martina did not care that letter was an attorney-client communication.

33 Scenario # 3 Legal Issues I. The right of Supervisors to inspect Township records and personnel files. II. III. Liability under the PHRA. Who has authority to waive the attorney-client privilege?

34 Scenario #3 Helpful Tips I. Enact Rules of Decorum that set forth expectations of Board Members. II. III. Enact a Resolution that clarifies the rights, duties and obligations of Board members relating to communications with Township employees and access to records. Ensure that Elected officials are aware of harassment policies and document it.

35 FACTS Street Smarts Local Street and State Road Intersection Skewed Angel Construction Lack of Signage on State Road Stop Sign Controls Local Street No Overhead Lighting Nighttime Motor Vehicles Accident Sight Line Deficiencies

36 Street Smarts LEGAL ISSUES Which TCA Immunity Exceptions Apply? Streets Traffic Controls

37 LEGAL ISSUES -- SIGNS Usage Placement Assessment (Testing) Maintenance Inspection

38 SIGNAGE Record Keeping Record Management