Lack of Compliance Creates Instant Liability

by | February 7, 2018

Gordon Graham here. Thanks for taking the time to read this piece. This is the fourth piece in an ongoing series to expand your knowledge and understanding on the breadth and depth of the discipline of real risk management.

In my introductory piece to this series, I commented on the bias that so many people have regarding risk management. It is more than safety. It is more than ergonomics. It is more than insurance. Everything you do involves a level of risk. What I have tried to do over the last several decades is to make risk management more understandable by taking all the risks you face and putting them into 10 Families.

In the last article, I spoke about Family One—the External Risks that every public safety agency (and employee) faces in their operations. This brief writing concerns the second of the 10 Families of Risk—Legal and Regulatory Risks.

Regardless of what type of public safety agency you work for, there are laws and regulations that control your existence as an organization. I am always amazed (and simultaneously disappointed) when I see how many public safety agencies are not in compliance with these laws and regulations. This lack of knowledge can cause you a lot of future grief. That is when you will get your lawyers involved. I am strongly recommending instead that you get in compliance today.

Let’s start at the federal level. You have heard the reference to the “alphabet soup” regulations including but not limited to ADA, FLSA, EEOC, FMLA, FCRA and HIPAA. In fact, there are many, many more—and each of these laws and regulations has numerous subsections that require or prohibit actions on behalf of your employees and people in your community.

For those of you who are clients of Lexipol, you know there are federal laws regarding dealing with people with hearing disabilities and limited English proficiency. However, when I am invited to look at policy manuals for non-Lexipol departments, I am saddened that too many agencies are not in compliance with these federal mandates, which have been in place for a long time.

If you are not in full compliance with the federal and state laws that apply to your organization and someone suffers a harm or loss, it is “instant” liability.

Similarly, I am very disappointed to still see, in law enforcement agencies, shooting policies that apply the Tennessee v. Garner standard rather than the most current case law addressing this serious issue. And I am shocked to see complex shooting policies that reference some ancient use-of-force continuum for officers to use when considering using force against a suspect. For those of you who have this continuum in place in your policy manual, you have created a document subject to discovery downstream in litigation. When a plaintiff’s lawyers see this, you have just made their day—and set yourself up for a major financial loss.

Let’s move to the state level. I have been fortunate enough to have worked with public safety agencies in every state in the nation, and I am continually amazed at the variety of laws that exist in every state. Are you in compliance with the training standards (hours and frequency) required by your state for personnel? Are you in compliance with your state’s public records act?

Please do not view this as legal advice, but if you are not in full compliance with the federal and state laws that apply to your organization and someone suffers a harm or loss, it is “instant” liability. In my home state of California, I can show you many cases involving police pursuits (a high-liability area for every police agency in the country) because a policy was not in compliance with the state law.

If the law requires your policy to say “XYZ” and the department policy only covers “X and Y” and the suspect ends up crashing and killing a third party, the lack of “Z” in your policy could be very, very expensive.

Finally, let me talk about the discipline process in public safety agencies. Many states have created a peace officer bill of rights (POBR) or firefighter bill of rights (FOBR) to protect personnel. When I was a young cop in the 1970s, California developed a POBR that was specific in terms of how many supervisors could question an officer and what time requirements applied to the investigation process. I read the new law in 1975 when I was a union representative, but apparently no one in supervision or management did—and I won a lot of cases as a defense representative simply because they did not follow the written rules. Are your policies reflective of your state’s POBR or FOBR?

The next article will address Family Three—Strategic Risks. Until then, thanks for all you do to make things better in our world.


TIMELY TAKEAWAY In this piece I mention the federal requirements regarding policies on interacting with limited English proficiency and hearing-impaired individuals. If you are a Lexipol agency, you have both of these policies in place. If you are not, please contact your local Lexipol representative and they will provide you with these mandated policies.

GORDON GRAHAM is a 33-year veteran of law enforcement and the co-founder of Lexipol, where he serves on the current board of directors. Graham is a risk management expert and a practicing attorney who has presented a commonsense risk management approach to hundreds of thousands of public safety professionals around the world. Graham holds a master’s degree in Safety and Systems Management from University of Southern California and a Juris Doctorate from Western State University.

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