In This Issue


Member Workshops

Excellence in Risk Management

Call for Symposium Topics

Continuity Planning

Safety Incentive Programs and OSHA

Suspension of Driver’s Licenses

Welcome, Jim Bell Hatchel


Tennessee Trivia

Q. What is Tennessee’s official state folk dance?

Click here for the answer

Message from the President

Dawn Crawford

Greetings and Happy 2019 to all!

Every January, the staff at Public Entity Partners (PE Partners) sets S.M.A.R.T. (Specific, Measurable, Achievable, Relevant and Time-Bound) goals for the year. For 2019, one of our goals is to begin the process of updating and improving our website. As a part of this process, we would like to hear what is important to you, our members, as you utilize the site.

A survey was recently sent out for your input. (Click here for the survey.) Through this survey, we hope to gain a better understanding of what is most important to you, and incorporate as much of your input as possible into our new website to enhance our service to all members. If you currently visit our website, please take a couple of minutes to review what is available on our site and respond to our survey. If you do not use our site, it is easy to obtain a password and familiarize yourself with the features that are presently offered. Click here to sign up for our secured member portal.

In addition to the survey, we will have the opportunity to speak directly with you during our annual member workshops, scheduled this year at seven locations across the state during February and March. Be sure to read the Member Workshops article included in this newsletter for more information on this year’s training and how to register. The workshops have been approved for five hours of CMFO credit in the financial category. As always, there is no charge to attend!

We look forward to seeing you soon!

Best Regards,

Dawn Crawford signature
Dawn R. Crawford
President/CEO

 

Member Workshops

“Handling Workers’ Compensation Claims from an Employer’s Perspective” will provide an in-depth look at workers’ compensation from the employer's perspective, and will address claims from the date of injury through final resolution. Topics will include proper reporting and documentation of a work injury, medical treatment, medical bills, wage statements and best practices after a work injury.

These workshops will focus on essential information for employers, including:

  • Proper reporting of a work injury;
  • Employer obligations when a work injury is reported;
  • Documentation and investigation of a workers’ compensation claim;
  • Information employers need to provide to Public Entity Partners;
  • The general process of a workers’ compensation claim;
  • The most common mistakes made in handling workers’ compensation claims;
  • Return-to-work issues; and
  • The legal process that concludes a workers’ compensation claim.

Additionally, updates will be provided on:

  • Notable workers’ compensation cases;
  • Workers’ compensation law for injuries occurring on or after July 1, 2014; and
  • Rules enacted in 2018.

The workshops will be presented by Jennifer Orr Locklin, attorney. For more than 10 years, Jennifer has handled all workers’ compensation cases for Farrar & Bates, LLP, located in Nashville. She regularly advises Public Entity Partners and clients across Tennessee on the proper handling of workers’ compensation claims.

Time:

9 a.m. – 2 p.m.

 

Dates / Locations:

Wednesday, Feb. 27

Spring Hill: Northfield Center
5000 Northfield Lane
Spring Hill, TN 37147

 

Thursday, Feb. 28

City of Gallatin: City Hall
Dining Hall 132 West Main Street
Gallatin, TN 37066

 

Wednesday, March 6

Atoka Town Hall
334 Atoka Munford Avenue
Atoka, TN 38044

 

Thursday, March 7

Jackson, MTAS Office
605 Airways Boulevard
Jackson, TN 38301

 

Tuesday, March 12

City of Kingsport
V.O. Dobbins, Sr. Complex, Douglass Room
301 Louis Street
Kingsport, TN 37660

 

Wednesday, March 13

Knoxville Public Works Complex
Community Room
3131 Morris Avenue
Knoxville, TN 37909

 

Thursday, March 14

Chattanooga Family Justice Center
5707 Uptain Road
Chattanooga, TN 37411

Registration:

Call or email Heather Hughes
HHughes@PEpartners.org
800.624.9698

 

For questions about the workshop, please contact
Heather Hughes or Callie Westerfield
HHughes@PEpartners.org   CWesterfield@PEpartners.org
800.624.9698  

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Excellence in Risk Management PRIMA Conference Scholarships

Public Entity Partners' “Excellence in Risk Management” PRIMA Conference Scholarships are designed to promote professional risk management by providing greater educational opportunities, training and peer networking opportunities to risk managers, safety directors and other public employees who have risk management responsibilities. Risk management is an important function in the daily operation of any professionally managed public entity. It affects every operation or service provided by a public entity as it seeks to minimize or prevent accidental, operational and financial losses.

Risk management education is an important component to grow your safety and risk management program. Unfortunately, there are few training and continuing education opportunities for public sector risk managers. In addition, many public sector decision-makers are not able to send their risk management staff to the training and educational opportunities that are available.

The Public Risk Management Association (PRIMA) Conference is an annual training opportunity featuring close to 50 engaging educational sessions. Each session shares best practices and innovative methodology to address timely issues impacting public risk management professionals. This national conference’s educational and networking opportunities offer valuable resources for both new and seasoned public risk management professionals.

The 2019 PRIMA Conference will be held June 9-12, 2019, in Orlando, Florida. To learn more about the conference, please visit http://s6.goeshow.com/prima/annual/2019/index.cfm.

Education tracks available at the conference will include:

  • Human Resources
  • Enterprise Risk Management
  • Pools
  • Risk & Benefits Financial / Insurance / Self-Insurance
  • Risk Control / Safety
  • Risk Management Leadership / Administration
  • Schools
  • Workers’ Compensation

To assist our members with attending the PRIMA Conference, Public Entity Partners will award three (3) scholarships for qualified individuals (with each scholarship providing up to $2,000 in financial assistance). Eligibility for consideration is limited to individuals whose employing organizations are insured by Public Entity Partners.

To complete a scholarship application, please visit https://www.pepartners.org/prima/. Scholarship applications will be available starting Jan. 22, 2019. Completed applications must be received at Public Entity Partners by Feb. 22, 2019. Winning scholarship recipients will be notified beginning Feb. 27, 2019.

Since this scholarship is a reimbursement program, paid receipts, invoices or other proof of expenditures must be turned in before funds are disbursed. (Please note: Actual receipts must be submitted. Public Entity Partners does not reimburse any "per diem" or other condition of employment you may have with your entity). Only early-bird registration will be reimbursed. If you register after the early-bird rate, you will not be paid for the difference.

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Call for Symposium Topics

Public Entity Partner’s 4th annual Risk & Insurance Symposium will be held Aug. 21 - 23 at the Franklin Marriott. Last year’s symposium was attended by nearly 200 participants from across Tennessee. Numerous participants expressed their appreciation for the session topics that were presented, and spoke of the value the sessions provided them in their roles within their organizations.

Last year’s session topics included:

  • Dangerous Crossroads Ahead: The Intersection of the First and Fourth Amendments
  • Distracted Driving
  • Family Impact of Work Injuries
  • Hot Pursuit: Police Liability under Federal and State Law
  • Opioid Use in Tennessee
  • Setting up a Road and Driver Course
  • Workers’ Compensation

We would like to hear from you about potential topics for this year’s symposium sessions. If you have ideas or suggestions for topics that would be of interest to you or help you in your position at your entity, please contact Halie Gallik at hgallik@pepartners.org or 615.371.6005.

And be sure to save the date for the 2019 Risk & Insurance Symposium!

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Continuity Planning

If you didn’t already make a New Year’s resolution to improve and update your business continuity plan, you may want to consider it.

In a recent web article, Agility Recovery shared the following:

Anything is Possible

If 2018 taught us anything, it’s that anything can happen. Volcanoes can erupt, the earth can collapse in a state’s largest city, ransomware can strike a major metropolitan city (Atlanta) or a Department of Transportation (Colorado), and there’s a thing called a bomb cyclone that can shut down an entire region.

Disasters are never convenient and don’t strike when it’s easy to respond. Hurricane Florence struck North Carolina at the same time as gas leaks created explosions in Boston.

No matter where you are or what industry you’re in, 2018 taught us you have to prepare for the unexpected.


Your Community Needs Your Continuity Plan

When a regional disaster strikes, the community is relying on businesses and local governments to continue normal operations. Continuity plans are not only important to your organization, but essential to the people you serve. It takes a lot of preparation to be ready to resume business under any circumstances, but the effort is worth it.

When Hurricane Michael closed 30 Waffle House restaurants in the Florida Panhandle, they activated their storm playbook and reopened 27 of the restaurants within 5 days. Pat Warner, director of PR and external affairs at Waffle House, told HR Dive:

   

We all feel that if we can get open quickly it brings the community back faster. If we're open, and the Walmart next to us is open, and the Walgreens is open, the community's coming back online. And so that's really why we do it.

Your main resource is your people. You might want to talk about your fleet of vans, or your building, or this or that, but it should be the people first. [. . .] That’s our top priority.

Having a well-thought-out continuity plan can help you recover in the event of a disaster, whether it is natural or man-made. All Public Entity Partners members with property coverage are provided a membership to Agility Disaster Recovery. The myAgility Planning Platform provides tools and templates to get you started on your continuity plan.

The Agility membership can also help you as you recover from a disaster by providing:

  • Emergency computer hardware
  • Mobile office recovery solutions
  • Backup power and generators
  • Backup communications

If you have questions about the Agility membership or getting access to the myAgility Planning Platform, please reach out to our member services team:

East Tennessee
Wayne Anderson
wanderson@pepartners.org

Middle Tennessee
Callie Westerfield
cwesterfield@pepartners.org

West Tennessee
Celeste Taylor
ctaylor@pepartners.org

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Safety Incentive Programs and OSHA

Employers have long searched for mechanisms to encourage and incentivize safety. Not only does a safe work environment allow our employees to go home to their families, it also helps to keep workers’ compensation premiums as low as possible.

One challenge to incentivizing safety has been the federal Occupational Safety and Health Administration’s (OSHA) disapproval of incentive programs. OSHA went so far as to issue a memo sharing that they felt that safety incentive programs could be viewed as retaliatory and discourage employees from notifying employers of work-related injury claims, and might be in violation of federal law.

On Oct. 11, 2018, OSHA issued a memo titled “Clarification of OSHA’s Position on Workplace Safety Incentive Programs and Post-Incident Drug Testing Under 29 C.F.R. § 1904.35(b)(1)(iv).” To read the entire memo, click here.

Here is an excerpt from the memo:

 

The Department believes that many employers who implement safety incentive programs and/or conduct post-incident drug testing do so to promote workplace safety and health. In addition, evidence that the employer consistently enforces legitimate work rules (whether or not an injury or illness is reported) would demonstrate that the employer is serious about creating a culture of safety, not just the appearance of reducing rates. Action taken under a safety incentive program or post-incident drug testing policy would only violate 29 C.F.R. § 1904.35(b)(1)(iv) if the employer took the action to penalize an employee for reporting a work-related injury or illness rather than for the legitimate purpose of promoting workplace safety and health (emphasis added).

Incentive programs can be an important tool to promote workplace safety and health. One type of incentive program rewards workers for reporting near-misses or hazards, and encourages involvement in a safety and health management system. Positive action taken under this type of program is always permissible under § 1904.35(b)(1)(iv). Another type of incentive program is rate-based and focuses on reducing the number of reported injuries and illnesses. This type of program typically rewards employees with a prize or bonus at the end of an injury-free month or evaluates managers based on their work unit’s lack of injuries. Rate-based incentive programs are also permissible under § 1904.35(b)(1)(iv) as long as they are not implemented in a manner that discourages reporting. Thus, if an employer takes a negative action against an employee under a rate-based incentive program, such as withholding a prize or bonus because of a reported injury, OSHA would not cite the employer under § 1904.35(b)(1)(iv) as long as the employer has implemented adequate precautions to ensure that employees feel free to report an injury or illness.

OSHA cautions that simply telling employees or printing a statement that employees are encouraged to report accidents and injuries is not enough, because employees may not feel free to report if they think they or their co-workers may miss out on a large reward or incentive. OSHA recommends pairing any incentive programs that reward employees for not having injuries with the following:

  • An incentive program that rewards employees for identifying unsafe conditions in the workplace;
  • A training program for all employees to reinforce reporting rights and responsibilities, and emphasizes the employer’s non-retaliation policy; and
  • A mechanism for accurately evaluating employees’ willingness to report injuries and illnesses.

Regardless of how your organization works to encourage safety, it’s nice to have another option in your toolbox.

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Municipal Courts and Suspension of Driver’s Licenses for Failure to Pay Traffic Debt

By Kristin Ellis Berexa, attorney at Farrar & Bates, LLP

Does the government violate the United States Constitution when it suspends the driver’s licenses of indigent Tennessee drivers who, because they are indigent, have not paid their traffic fines/costs? In Robinson v. Purkey, a federal court in Nashville has decided that the government does, indeed, violate the Constitution if it suspends the licenses of indigent drivers for failure to pay traffic debt.1 Because municipal courts initiate the suspension process by sending failure to pay notices to the state with respect to traffic fines and costs, the opinion issued by the federal court requires an examination of, and possible change in, municipal court policy.

In Tennessee, the constitutionality of suspending driver’s licenses for failure to pay debt was first questioned in Thomas v. Haslam, a class action challenging the state’s statutory scheme for suspending licenses for failure to pay criminal court debt.2 In Thomas, the court found that it is unconstitutional to suspend driver’s licenses of individuals who fail to pay criminal court costs and fines, unless the debtor receives notice of and an opportunity for an ability-to-pay hearing, also known as an indigency hearing. Neither the state nor the criminal trial courts offer indigency hearings for fines and costs prior to license suspension. The federal court ordered the state to cease all driver’s license suspensions for non-payment of criminal court debt unless or until the state lawfully adopts a process for providing an exception to the suspension based upon a debtor’s inability to pay. The Thomas case is currently on appeal in the United States Court of Appeals for the Sixth Circuit. As a result of the Thomas case, the Department of Safety is no longer suspending driver’s licenses on the basis of an individual’s failure to pay criminal court debt.

At this point, you may be wondering why the Thomas opinion is important to cities because city courts do not handle criminal charges, but only municipal violations. The Thomas case is, in effect, a companion case to Robinson v. Purkey. In Robinson, the issue is whether driver’s licenses can be suspended for failure to pay traffic debt i.e, traffic fines, costs and taxes. As most cities have municipal courts and handle traffic violations within their city limits, this issue is extremely important to any city across the state with a municipal court that handles traffic violations.

This issue may sound familiar to some of you as it was a topic of presentation at the Risk & Insurance Symposium in August. A copy of the symposium presentation can be found here. Included with this presentation were several sample documents, including:

In June of 2018, the Robinson court held that it was unconstitutional to suspend a driver’s licenses for the non-payment of traffic debt, unless the indigent driver received notice of and an opportunity for an ability to pay or indigency hearing. In short, a constitutional violation would occur if the government suspended the license of an indigent driver for failure to pay traffic debt.

The court cited three reasons why suspending an indigent driver’s license for failure to pay traffic debt is a constitutional violation. First, the court found it is a violation of the Fundamental Fairness Doctrine under the Equal Protection and Due Process clauses of the Constitution in that you cannot treat indigent defendants differently than non-indigent defendants, or in other words, the government cannot treat someone more severely simply because of his or her economic status.3 Second, the court found that the suspension of driver’s licenses of indigent drivers without affording them an indigency hearing violated the Equal Protection clause of the Constitution. The government cannot impose harsher terms on a debtor merely because the financial obligation is to the public treasury rather than a private creditor i.e., a private creditor could not suspend someone’s driver’s license for failure to pay his or debt.4 Third, the court found that a driver’s license is a constitutionally protected right and cannot be taken away without first offering the individual an indigency hearing.5 If that individual is unable to pay, the government cannot suspend his or her driver’s license.

In October of 2018, the Robinson court issued a follow-up opinion — this time enjoining the state from suspending any licenses for failure to pay traffic citations, unless the state itself holds an indigency hearing prior to the suspension or the local government/municipal court holds an indigency hearing.6 The State of Tennessee has appealed this latest order to the United States Court of Appeals for the Sixth Circuit. While this case is on appeal, the Department of Safety is no longer accepting any failure-to-pay notices from local governments requesting that a driver’s license be suspended, unless the local government provides certification that an ability to pay hearing has been provided.

If a local government wants to request a license suspension for a failure to pay, the request and certification should be sent by U.S. mail to the attention of:

 

Frieda Cameron
Department of Safety and Homeland Security
1150 Foster Avenue
Nashville, Tennessee 37243

What is the practical effect on municipal courts of the Robinson opinion? The short answer is that cities can no longer use the suspension of a driver’s license as a debt recoupment method for those drivers who fail to pay their traffic debt, unless the city adopts an indigency hearing policy and/or indigency policy. Cities can still recoup traffic debt in the following four ways:

  1. Collect in same manner as a judgment in a civil action;7
  2. Utilize a collection agency;8
  3. Hold a debtor who willfully refuses to pay in contempt;9 and
  4. Utilize payment plans10.

The Robinson opinion only prohibits the use of suspending driver’s licenses as a debt recoupment method unless an indigency hearing is offered. Since Robinson, several local governmental entities have successfully implemented indigency hearing policies for traffic court.

Also important to note is that the Robinson opinion only addresses license suspension for failure to pay traffic fines and costs. Driver’s license suspension can still occur for a driver’s failure to appear in court, violation of financial responsibility law, and conviction for offenses indicative to public safety, such as DUI, vehicular homicide, etc.

This article addresses the current state of the law, but this issue will continue to work its way through the courts over the next couple of years. The state legislature could also tackle this issue in the next legislative session and revise the statutory scheme for driver’s license suspensions. We will continue to provide updates as the law continues to develop in this area.


1Robinson v. Purkey, 326 F.R.D. 105 (M.D. Tenn. 2018).
2Thomas v. Haslam, 329 F.Supp.3d 475 (M.D. Tenn. 2018).
3Robinson, at 326 F.R.D. at *153-59 (citing Griffin v. Illinois 351 U.S. 12 (1956)).
4Id. at *159-61 (citing James v. Strange, 407 U.S. 128 (1972)).
5Id. at *161 (citing Bell v. Burson, 402 U.S. 535 (1971)).
6Robinson v. Purkey, No. 3:17-CV-01263, 2018 WL 5023330 (M.D. Tenn. Oct. 16, 2018).
7Tenn. Code Ann. § 40-24-105(a).
8Tenn. Code Ann. § 40-24-105(e).
9Tenn. Code Ann. § 40-24-105(a).
10Tenn. Code Ann. § 55-50-502(d)(3)-(4).

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Welcome, Jim Bell Hatchel

Jim Bell Hatchel joined Public Entity Partners’ underwriting team earlier this month as an underwriter for the East Tennessee region. Jim Bell brings 10 years of experience with Liberty Mutual and Auto Owners insurance companies as a commercial lines underwriter. He has also worked as an insurance agent for ProAssurance.

“I am excited about the opportunity to work with the governmental entities served by Public Entity Partners,” Jim Bell says. “Local governments provide important and valuable services to the citizens of Tennessee. I look forward to working with the underwriting team to underwrite the property and casualty risks associated with those services.”

A graduate of the University of Tennessee at Martin, Jim Bell and his wife, Lindsay, are the parents of two-year-old James Walker. In his spare time, Jim Bell enjoys being active with his family, enjoying the great outdoors and playing golf.

Jim Bell can be reached at 800.624.9698 or jhatchel@pepartners.org.

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Tennessee Trivia

Q: What is Tennessee’s official state folk dance?

A. The square dance