In This Issue


21st Century Policing Workshop

Agility Disaster Recovery

Avoiding the Pitfalls in the AIA Contract

OSHA Regulations in 2017


Tennessee Trivia

Q. How many streets in Tennessee are named after Dr. Martin Luther King, Jr.?

Click Here for the Answer

Message from the President

Dawn
Happy New Year!

I would like to thank you and express my appreciation to all who made our East Tennessee wildfire donation campaign a huge success. Your generosity in helping your municipal peers in Sevierville, Pigeon Forge and Gatlinburg is a testament to the character of Tennesseans.

Before Christmas, we were able to deliver $5,000 checks to each of the 14 municipal employees who lost their homes and belongings to the fires. It was an honor and a privilege for me to be able to present the results of your generous giving. Donations continued to come in through the end of December and additional funds will be made available soon.

I would also like to thank the many volunteers, staff, elected officials, firefighters and other public safety personnel who traveled to East Tennessee after the devastating fires to help the area begin the recovery process. Many people from across the state left their families to provide much-needed assistance. Thank you all so very much!

The new calendar year is bringing some new opportunities. Public Entity Partners, in conjunction with the Tennessee Association of Chiefs of Police (TACP) and the Municipal Technical Advisory Service (MTAS), is hosting a series of workshops across the state. Jack Ryan has 20 years’ experience as a police officer with the Providence Rhode Island Police Department and will be speaking on the topic of 21st Century Policing. Jack is a nationally recognized expert in law enforcement, as well as an attorney. Topics to be covered in the sessions include Use of Force, Implicit Bias, Confirmation Bias, Lack of Respect for Authority, Trends in Social Media, Drones and Body Cameras.

These topics can be applied to all departments of an organization, not just to law enforcement personnel. We encourage law enforcement professionals, elected officials, city administrators, risk managers and other public administrators to attend one of these unique educational opportunities. More information on the sessions can be found in this newsletter.

Best Regards,
signature
Dawn R. Crawford
President/CEO

 

21st Century Policing Workshop

21st Century Policing: Addressing the Liability and Safety Issues

Brought to you by Public Entity Partners, TACP and MTAS

logos

Dates:

Jan. 31 (Germantown), Feb. 1 (Jackson), Feb. 2 (Franklin), Feb. 21 (Chattanooga), Feb. 22 (Knoxville),
Feb. 23 (Johnson City)

Time:

9 a.m. – 2 p.m. (10 a.m. – 3 p.m. for the Franklin workshop)
Lunch is provided

All workshops qualify for 4 hours of training, including 4 continuing
education credit hours in the “Other” Category for Certified Municipal
Finance Officers (CMFO)

Continuing Education Credits:

4 hours POST credit
4 hours of CMFO credit in the “Other” category

Instructor:

Jack Ryan, Esq.
Legal & Liability Risk Management Institute

Topics Covered:

Use of Force, Implicit Bias, Confirmation Bias, Lack of Respect for Authority, Trends in Social Media, Drones, Body Cameras and more

Who Should Attend:

Law enforcement professionals, elected officials, city administrators, risk managers and other public administrators.



Date

Location

Host Agency

Tuesday, Jan. 31

Germantown Police Department
Police Training Room
1930 S. Germantown Rd.
Germantown, TN 38138

Memphis PD
Germantown PD
Bartlett PD
Collierville PD

Wednesday, Feb. 1

Jackson MTAS Office – Meeting Room A
605 Airways Blvd.
Jackson, TN 37301

Jackson PD
Dyersburg PD

Thursday, Feb. 2

Embassy Suites – Cool Springs
820 Crescent Centre Dr.
Franklin, TN 37067

This session held in conjunction with the regular February meeting of the Tennessee Association of Chiefs of Police (TACP)

Tuesday, Feb. 21

Chattanooga Midtown Central
Family Justice Center
5705 Uptain Rd.
Chattanooga, TN 37411

Chattanooga PD
Red Bank PD

Wednesday, Feb. 22

Knoxville Public Works Complex
Community Room
3131 Morris Ave.
Knoxville, TN 37909

Knoxville PD
Maryville PD
Alcoa PD
Oak Ridge PD

Thursday, Feb. 23

Holiday Inn – Johnson City (Taylor Ballroom)
101 W Springbrook Dr.
Johnson City, TN 37604

Johnson City PD
Kingsport PD
Bristol PD
ETSU PD

Our instructor, Jack Ryan, is no stranger to TACP or law enforcement in Tennessee. He is an attorney, trainer, expert witness, and retired law enforcement officer and administrator from Providence, Rhode Island. This class promises to be informative, timely and engaging.

Each attendee will also receive a digital copy of Ryan’s “Law Enforcement & Best Practices” manual at no charge. All Tennessee police departments are invited to attend.

Registration for the event will be online at www.PEpartners.org/Workshop.

A special thank you to our host agencies who have helped make this training a success.

Space is limited, so please register early. If you have questions about registration, please contact Halie Gallik at 800.624.9698 or hgallik@PEpartners.org.

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Agility Disaster Recovery

Disaster planning and recovery is a daunting task, and it is sometimes hard to know where to start. For members with property coverage, Public Entity Partners offers access to Agility Recovery as part of your coverage.

In the event of a disaster, you need quick access to key resources to facilitate your entity’s continued operations. You might need a generator, office space or phone and Internet connectivity.

With Agility Recovery, Public Entity Partners offers priority access to four major areas of assistance:

  • Power
  • Computer systems
  • Work Space
  • Communications

This program is provided free to all members who purchase property coverage. It is important to note that because many members do not have all their properties covered, it is not always possible to identify what member costs will be covered under your property policy. We encourage you to review your policy so that you have a better understanding of what may be covered in the event of an emergency. Only costs related to locations that are covered on the property policy are eligible for payment by Public Entity Partners. Your entity’s property claims contact has the ability to make a declaration under the Agility Membership. We encourage you to stay in contact with our claims department so they can assist in evaluating coverage.

Your free Agility membership also includes access to the MyAgility Portal, where you can store your disaster recovery plan and document important information, such as the size of the generator you will need to power a critical facility. Members who purchase property coverage can designate an Agility contact. To update your Agility contact or to find out who your contact is, please speak to your Member Services Representative.

Visit https://dsi.agilityrecovery.com/agil/login.htm to log into the MyAgility Portal.

If you have additional questions, please reach out to Public Entity Partners’s Member Services Team.

Wayne Anderson
wanderson@PEpartners.org
772.473.4243

Callie Westerfield
cwesterfield@PEpartners.org
800.624.9698

Celeste Taylor
ctaylor@PEpartners.org
731.514.5994

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Avoiding the Pitfalls in the AIA Contract

Publication Date: 12/13/16
Source: AJG PEP Talk
By: Lou Greco, Arthur J. Gallagher & Co.

Beware of the “standard” forms of agreement tendered by your architect for construction projects. There are provisions contained in these agreements which work very much in favor of the architect and contractors and against the best interests of the project owner – that’s you!

I’m talking about waivers of subrogation and consequential damages.

The basic AIA agreement text provides that the parties “waive subrogation” for any property damage claims covered by insurance. This would be fine if you were a contractor rather than the owner of the property. This means if anyone’s property is damaged and covered by property insurance, the owner of that property will accept payment from their own insurance company and the claim will end right there. No one will be allowed to go after the contractor or architect who actually caused the damage!

Example

The architect does bad design work for the drainage around a building addition. During construction, water backs up and infiltrates the existing building, causing $300,000.00 of damage to equipment, including computers and furniture. In this scenario, if you signed the standard AIA documents without editing, then your school district is simply out of luck. The architect and his insurance company walk away with no payment.

The standard documents also contain provisions by which the parties waive “consequential damages.” What does this mean? In our example above, if your school district had to bring in modular classrooms on a temporary basis while your building is being repaired, there would be no recovery for those expenses, because you waived them when you signed the standard AIA agreement forms. You are stuck paying these expenses out of your current expense budget and will not be able to recover them from anyone.

Are these outcomes fair?

No. It is you, as the owner of the project, who is exposed to property and consequential losses when things go bad on a construction project. The architects’ and contractors’ exposure to property and consequential losses on your project are simply not comparable to your exposure. That’s what makes these clauses unbalanced and unfair to you.

What is the fix?

Edit these clauses out of your agreements before you approve them. These clauses are not required by law and are subject to negotiation between the parties.

Where are these clauses?

In the architect’s contract:
In AIA Document B104, the Standard Form of Agreement between Owner and Architect, you will find the subrogation waiver at paragraph 8.1.2. It should be deleted.

Also, in AIA Document B104, you will find the waiver of consequential damages at paragraph 8.1.3. This paragraph should also be deleted.

In the construction contracts:
In AIA Document A201, General Conditions of the Contract for Construction, you will find the subrogation waiver at Article 11, Section 11.3.7. This section should be deleted.

Furthermore, in AIA Document A201, you will find the waiver of consequential damages at Article 15, Section 15.1.6. This section should be deleted as well.

Before you sign any more of these “standard” agreements, please ask your legal counsel to do a comprehensive review of the standard forms to make certain you do not put your school district at a disadvantage when claims arise. Feel free to pass this memo along to your legal counsel as a starting point. You can anticipate that you will get resistance. That is why it is important you edit the AIA documents right from the start. Trust me, BEFORE the contract is signed is when you have more than enough leverage to get these disadvantageous provisions removed from your contract documents.

A special “thank you” to Lou Greco for sharing the above observations. lou@lgrecolaw.com

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What's in Store For OSHA Regulations in 2017

Publication Date 12/07/2016
Source: Mondaq Business Briefing
By Mr. Scott Prill, Carolyn A. Sullivan and John H. Zawadsky

OSHA: Looking Back

The bipartisan Occupational Safety and Health Act of 1970 (the "OSH Act") was signed into law on December 29, 1970, in reaction to dangerous working conditions across the nation. The Occupational Safety and Health Administration ("OSHA") was established four months later to foster safe and healthful working conditions by setting and enforcing standards and by providing training, outreach, education and assistance. Since the passage of the OSH Act, the rate of reported serious workplace injuries and illnesses has declined from 11 per 100 workers in 1972 to 3.6 per 100 workers in 2009. Approximately 14,000 workers were killed on the job in 1970. In 2014, 4,821 workers were killed on the job. Nevertheless, because thousands of workers are still killed on the job each year and because more than 3 million workers suffer work-related injuries each year, OSHA continues inspecting workplaces and issuing citations to employers.

OSHA recently released its annual list of the year's most-cited safety and health violations, which it formulates based on the results of more than 30,000 OSHA workplace inspections. Because OSHA's most-cited standards list is virtually identical from year to year, the annual compilation should serve as a roadmap of areas in which employers need to proactively improve their health and safety efforts. In fact, the top six citations were the same in 2014, 2015 and 2016.

2016 (preliminary)

2015

2014

1. Fall protection

1. Fall protection

1. Fall protection

2. Hazard communication

2. Hazard communication

2. Hazard communication

3. Scaffolding

3. Scaffolding

3. Scaffolding

4. Respiratory protection

4. Respiratory protection

4. Respiratory protection

5. Lockout/tagout

5. Lockout/tagout

5. Lockout/tagout

6. Powered industrial trucks

6. Powered industrial trucks

6. Powered industrial trucks

7. Ladders

7. Ladders

7. Electrical, wiring methods

8. Machine guarding

8. Electrical, wiring methods

8. Ladders

9. Electrical, wiring methods

9. Machine guarding

9. Machine guarding

10. Electrical, general requirements

10. Electrical, general requirements

10. Electrical, general requirements

Moreover, employers should be cognizant of areas in which incidents are on the rise. For example, OSHA recently determined that the number of workers killed in trench collapses in 2016 (23 workers) more than doubled nationwide since the previous year. Because one cubic yard of soil weighs up to 3,000 pounds, trench collapses are often fatal; however, an additional 12 workers were injured in trench collapses in 2016. In recognition of the low survival rate for trench collapses and because of its position that trench fatalities are preventable, OSHA established a national emphasis program on trenching and excavations and mandates protective systems for trenches that are deeper than five feet.

As 2017 approaches, employers should address deficiencies in all health and safety areas, placing particular emphasis on those with increasing numbers of fatalities or injuries and illnesses, OSHA national emphasis programs, and the most-cited OSHA standards.


OSHA: Looking Forward to 2017

The 2016 presidential election results are likely to affect both OSHA rule-making and enforcement in the next four years, but how these changes manifest themselves remains to be seen. Because President-elect Donald Trump has never held public office, and because he did not focus on OSHA while on the campaign trail, it is impossible to be certain how his administration will address safety and health regulation. It is clear that President-elect Trump disfavors "wasteful and unnecessary" over regulation that "kills jobs," and he recently stated that two regulations must be withdrawn for every new federal regulation that is passed. Of course, amending or withdrawing a regulation is time consuming, and which OSHA regulations might be affected is unknown. In the meantime, speculation about OSHA's role and priorities in the Trump era continues and extends beyond repealing or revising rules. For example: compliance assistance could be emphasized; enforcement could be deemphasized; penalties could be adjusted (again); budgets could be cut; and/or, standard interpretations could be employed to effect changes. Recently finalized OSHA standards that may be impacted if OSHA shifts priorities include the updated walking-working surfaces standard, the revised recordkeeping and reporting standard, and the new silica rule.

In November 2016, OSHA announced its final rule: updating general industry walking-working surfaces standards on slip, trip, and fall hazards; and, adding a new general industry personal protective equipment standard section requiring worker training on personal fall protection systems and fall equipment. The rule takes effect January 17, 2017 and is expected to impact more than 100 million U.S. workers. Given the number of citations pertaining to fall protection, scaffolding, and ladders, it is not surprising that OSHA has taken notice of fall-related issues and updated its rules accordingly. President-elect Trump's position on these updates is not clear.

Earlier this year, OSHA issued a final rule revising its recordkeeping and reporting standard to require certain employers to electronically report specified injury and illness data, which will facilitate OSHA's posting of data on its website. The final rule also: contains anti-retaliation provisions that require employers to inform employees of their right to report work-related injuries and illnesses free from retaliation; clarifies that employees cannot be deterred or discouraged from reporting by an unreasonable reporting procedure; and, incorporates a preexisting statutory prohibition on retaliating against employees for reporting work-related injuries and illnesses. The anti-retaliation provisions took effect on August 10, 2016, but OSHA delayed their enforcement until December 1, 2016. The remainder of this rule takes effect on January 1, 2017, with a compliance schedule that will be phased in over two years. The final rule's electronic submission requirement does not change the recording criteria for injury and illness records, and it does not alter employers' obligations to complete injury and illness records. However, certain disciplinary and safety incentive programs and drug and alcohol testing policies potentially could be deemed to violate the final rule. The uncertainty regarding what constitutes a violation likely will continue until OSHA issues directives setting guidelines on these issues. Moreover, the new administration's stance on the revised reporting and recordkeeping rule is unclear. Some commentators believe that President-elect Trump may seek to withdraw or modify all or some of the final rule. Alternatively, the "new OSHA" might opt to switch course via issuance of letters of interpretation.

Finally, given industry misgivings about ability to comply and given the new administration's general stance on regulations, the future of the silica rule may be in jeopardy. Right now, enforcement of the final rule in construction is slated to begin June 23, 2017, and general industry's compliance deadline is June 23, 2018. However, until President-elect Trump states his plan for OSHA, or perhaps until he nominates a new Assistant Secretary of Labor for Occupational Safety and Health, the future of the silica rule, specifically, and the future of OSHA regulation and enforcement, in general, will continue to be mere speculation. In the meantime, employers should be careful to meet all OSHA deadlines and comply with all OSHA requirements. And, as always, employers should make the safety and health of their employees a priority regardless of the OSHA direction forged by the new administration.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Mr. Scott Prill
Reinhart Boerner Van Deuren S.C.
1000 N Water Street
P.O. Box 2965
Milwaukee
WI 53202
UNITED STATES
Tel: 4142981000
Fax: 4142988097
E-mail: JSmith@reinhartlaw.com
URL: www.reinhartlaw.com

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Tennessee Trivia

Q: How many streets in Tennessee are named after Dr. Martin Luther King, Jr.?

A. Based on research conducted by Dr. Derek Alderman with the University of Tennessee in Knoxville, 14 Tennessee cities and towns have streets that are formally named for Dr. Martin Luther King, Jr.
Many more streets are dedicated in his honor, but there is no available data that determines how many.