Public Entities' Growing Risks

Social media's rising popularity
As private enterprises become increasingly engaged with social media, it should be no surprise that public entities are following close behind. But whether used as their official voice or for personal use by staff, the liability issues surrounding the use of social media are only beginning to be understood.

The key points to remember when a public entity considers social media is always being mindful of the law and adhering to existing entity policies and guidelines. Entities that post false or nonpublic information via social media, whether through individual employees or the entity, can face legal liability, just as they would in other, traditional forms of communication. Any official communications should be checked and approved by the appropriate parties before being posted to social media sites to help prevent the distribution of factually incorrect information.

When considering social media and the potential risks surrounding its use, public entities should establish a documented process for publishing content and a detailed policy on behavioral expectations. Who will be the official social media spokesperson, the individual responsible for posting to relevant sites? This person should be thoroughly briefed on expectations for social media activity, what is permissible, approval process, and more. By choosing one point of contact for these efforts, there is less chance that mistakes will be made.

Fewer dollars in the budget

Challenging economic circumstances have not only adversely impacted individuals and families, but have hurt public entities across the country. According to the Center on Budget and Policy Priorities, state tax collections are 12 percent below pre-recession levels, but the need for state-funded services has not declined. State budget shortfalls for 2011 are expected to total some $130 billion, with just $59 billion available in federal aid to assist.

What kinds of risks do a tight economy present for governments and other related entities? Shortfalls can lead to a reduction in common services, including less maintenance on public property. The outcome? More potholes damaging citizens' cars, a reduction in snow removal services and a host of other hazardous conditions. Additionally, fewer budget dollars mean less funding for employee training programs, increasing the potential for worker mistakes.

Public entities need to recognize that even when budgets are tight, it is important to keep up with essential activities. For example, a public works department simply cannot stop maintaining roads; otherwise, numerous expensive claims could result.

Another area where budgets are frequently cut is in employee training. By considering shared services (i.e., a city and county can team up to provide training programs) or even affordable, online options, public entities can save money while still educating staff. Public entities must make smart, strategic decisions about reducing or cutting services, weighed against potential liability.

Distracted drivers
Distracted driving has earned the attention of state governments; there are now 30 states with laws against texting while driving. These bans are implemented with good reason: the National Safety Council estimates that about 28 percent of all vehicle crashes, or 1.6 million per year, can be attributed to mobile phone use while driving.

But too often, these laws don't consider some of the most distracted drivers of all. According to the VDC Research group, the number of police cruisers with on-board computers has doubled over the last decade, with some 75 percent of law enforcement vehicles having such technology. The group also estimates about 30 percent of ambulances use such equipment. Because vehicle collisions are a common cause of death for police officers, it's worth considering whether these new technologies create a level of distraction that contributes to such accidents.

To mitigate this risk, law enforcement and other entities should consider installing vehicle systems that are easier to operate (i.e., single-button functionality), or strict protocols on use for when a vehicle is in motion. Furthermore, public entities should train employees who operate vehicles equipped with advanced technology on the systems' proper use. By being good role models, law enforcement and emergency service workers can help set a precedent for more responsible driving in general and improve public perception.

Liability for public property misuse
The old, rundown community swimming pool in your town is rumored to be where local teenagers skateboard. Or perhaps they ride their ATVs on an ungroomed acre of land between two pieces of private property. Who is liable when one of these teens is injured while on this property?

You may be surprised to learn that it may be the public entity that owns the land. The old swimming pool and ungroomed land are known in tort law as "attractive nuisances"—potentially harmful objects or environments that are interesting to children who do not fully appreciate the risks presented.

Property owners have a duty to exercise reasonable precautions to prevent children from injuring themselves on their property, even in cases of trespassing; otherwise, the landowner can be held liable. A classic example of an attractive nuisance is a swimming pool. Without proper supervision or attempts to keep the gate locked during non-use, children can quickly drown if they enter a pool. In the case of any available immunity to the doctrine, the monetary and moral costs can still be high.

To avoid such liability, public entities must take proactive steps to ensure that attractive nuisances on their property are either eliminated or carefully protected. And putting up "No Trespassing" signs isn't always enough; property owners must exercise reasonable care to protect children from injury. Fences, locks and regular property monitoring can be more effective, and may go a long way in limiting liability.

Temporary employees with lasting impact
Park service workers, Little League coaches, community pool lifeguards—all are often considered temporary workers of public entities. Anyone who works on a short-term basis and is ineligible for benefits can be classified as such. This frequently includes seasonal workers entities hire to augment permanent staff during busy times.

Though temporary employees fill an important gap, these employees can make an organization vulnerable to significant risk. Temporary hires are often not subject to the same background checks as full-time employees. Even if they do undergo such screening initially, they may not be subject to it annually if they are hired year after year.

Temporary employees also can create a security risk. The nature of their work may require access to computer systems, facilities and confidential materials. Without proper monitoring or training, information can be misused, intentionally or not, exposing an entity to liability.

An increase in employee discrimination claims
Layoffs are often a difficult situation for employers, but can be even more so in a tough economy. Widespread workforce reductions are increasingly common for public entities and broad layoffs can make employers more vulnerable to discrimination suits on a number of grounds: arbitrary firing (or dismissals), being overlooked for a promotion or not receiving proper accommodations to complete one's work. According to the Equal Employment Opportunity Commission (EEOC), disability-related job claims are at an all-time high, with the commission handling 25,165 such claims in 2010, up 17 percent from 2009. It seems that increased layoffs and discrimination suits may be directly related.

In addition to disability claims, general accusations of workplace discrimination are on the rise. Cases in which workers file with the EEOC on unfair treatment based on race, sex, religion, age or other protected categories have reached an all-time high, at 99,992 cases last year alone. It's no surprise that recessions spark an increase in such claims—when laid-off workers can quickly find other jobs, they are less likely to bother filing such claims, even if justified. However, a tough job market increases the likelihood of former employees filing suits.

To avoid such claims, a public entity should ensure that all other alternatives for cost savings have been explored before conducting layoffs. Alternatives could include reducing the number of temporary and part-time employees, offering early retirement buy-out options or establishing an abbreviated work week. Additionally, employees should be advised as soon as possible of any coming changes, with information readily available to help ease the transition. Finally, document everything concerning decisions on staff reductions and be sure to confer with legal counsel.

Mitigation takes discipline
Tackling public sector risk is not all that different from addressing possible exposures in other industries: awareness and active involvement in risk management procedures, such as targeted training, are key. But a caveat to those involved in this space: While the underlying risk management underpinnings are the same, it is essential to be vigilant about differing laws and requirements from state to state, or even town to town. What is permissible in one city may be entirely different from one that neighbors it. For this reason, it is essential to partner with experts who understand the nuances of differing public entity practices across the country.

By continuing to be aware of current trends, implementing an effective risk management and training program and partnering with industry specialists, public entity risks can be managed and avoided, long before they create costly losses.