Body Worn Video and Records Retention


BODY WORN VIDEO AND RECORDS RETENTION
With the popularity and affordability of Body Worn Video (BWV) equipment, many OMAG members are purchasing devices for their police officers.  Members learn quickly that the expense of the equipment purchase doesn’t compare to the cost of storing the video or data. OMAG Legal receives regular inquiries regarding storage/retention requirements and issues when it comes to BWV. As a service to our members, OMAG’s Legal and Risk Management Departments have developed this article addressing the most frequently asked questions regarding BWV retention.  

As of this writing, there is no legal obligation to store body (or dash) camera videos for any length of time. As such, the decision to store or not store is left to the municipality subject to the requirements of State law. The municipality should consider adopting a retention policy that takes into account the legal factors outlined in the statutes discussed below. In particular, if there is video of a use of deadly force (whether it causes death or just injuries or even where no one is actually hurt), those videos should be preserved (OMAG recommendation) and should be sent to OMAG Legal for review. Videos depicting a use of force incident causing significant bodily injury should also be preserved (OMAG recommendation).  The Statute of Limitations for Civil Rights claims is 2 years and there is a 6 month grace period to serve a Civil Rights suit after it is filed. For video capturing incidents which may lead to a Civil Rights claim, a 3 year retention would be ideal and a best practice.

The following Statutes are implicated when determining whether BWV videos should be preserved.

OPEN RECORDS ACT
“In addition to other records which are kept or maintained, every public body and public official has a specific duty to keep and maintain complete records of the receipt and expenditure of any public funds reflecting all financial and business transactions relating thereto, except that such records may be disposed of as provided by law.” 51 O.S. 24A.5. “Except as may be required in Section 24A.4 of this title, this act does not impose any additional recordkeeping requirements on public bodies or public officials.” 51 O.S. §24A.18. So the Open Records Act applies to records already in existence but only requires that financial records be kept. And even financial records can be disposed of “as provided by law.” Law Enforcement records have a specific statute, Section 24A.8, which mirrors this general non-requirement “Nothing contained in this section imposes any new recordkeeping requirements. Law enforcement records shall be kept for as long as is now or may hereafter be specified by law. Absent a legal requirement for the keeping of a law enforcement record for a specific time period, law enforcement agencies shall maintain their records for so long as needed for administrative purposes.” 51 O.S. §24A.8(C); see also Oklahoma Assoc. of Broadcasters v. City of Norman, 2016 OK 119, ¶¶25-30 390 P.3d 689 (Sec. 24A.8 is part of the entire Act and any ambiguities regarding disclosure obligations will be resolved in favor of disclosure). The question is whether any other law would apply because the Act may not require retention but it does specifically limit that “this act” does not impose requirements thus opening the door for other Statutes.

RECORDS MANAGEMENT ACT
“"Local record" means a record of a county, city, town, village, township, district, authority or any public corporation or political entity whether organized and existing under charter or under general law unless the record is designated or treated as a state record under state law.” 67 O.S. §203(c). “The governing body of each county, city, town, village, township, district, authority or any public corporation or political entity whether organized and existing under charter or under general law shall promote the principles of efficient records management for local records. Such governing body shall, as far as practical, follow the program, established for the management of state records. The Administrator shall, insofar as possible, upon the request of a governing body provide advice on the establishment of a local records management program.” 67 O.S. §207

“[S]hall, as far as practical, follow the program, established for the management of state records.” The Attorney General has declined twice to say what “as far as practical” means. See 2001 OK AG 46, ¶27, 2002 OK AG 13, ¶8 (in both instances the Attorney General opines that this is beyond the scope of the his opinion authority under 74 O.S. §18b(A)(5)). There is no need to fret: the Act delegates the authority to draft records retention policies to each agency of the state. 67 O.S. §206. The guidance in drafting a policy from the administrator is “How long do I keep records? Each record has its own disposition/retention schedule, which indicates the minimum length of time the record should be kept. A record’s retention period is based on its administrative, fiscal, legal or historical value.” Link. The Act does state “Except as otherwise provided by law, no state record shall be destroyed or otherwise disposed of unless it is determined by the Archives and Records Commission that the record has no further administrative, legal, fiscal, research or historical value.” 67 O.S. §210. §206(A)(1) and (3) arguably create a Cost/Benefit Analysis approach to the adopting of policies on retention: “[Each Agency head shall] Establish and maintain an active, continuing program for the economical and efficient management of the records of the agency” and records can be submitted to destruction when the record is “not needed in the transaction of current business and that do not have sufficient administrative, legal or fiscal value to warrant their further keeping.”

OMAG recommends that each municipality adopt policies on retention that take into account whether the record is needed for current business transactions and, if not, whether the record has administrative, legal, fiscal, research and historical value of records and then provide for their retention based on those factors. 

UNIFORM ELECTRONIC TRANSACTIONS ACT
Two defined terms that are relevant to the discussion are “"Electronic record" means a record created, generated, sent, communicated, received, or stored by electronic means” and “"Governmental agency" means an executive, legislative, or judicial agency, department, board, commission, authority, institution, or instrumentality of the federal government or of a state or of a county, municipality, or other political subdivision of a state.” 12A O.S. §15-102(9) & (11). So the act is going to apply to cities and towns, but the Act is very deferential to government to decide its retention for itself: “Each governmental agency of this state, in cooperation with the Archives and Records Commission, shall determine whether, and the extent to which, it will create and retain electronic records and convert written records to electronic records.” 12A O.S. §15-117. The Commission that is referenced was originally created by 74 O.S. §564, but it’s since been moved to 67 O.S. §305. The statutes limit the jurisdiction of the Commission to the State and its Agencies and does not define State as including political subdivisions.

OMAG’s opinion is that this Act applies to  municipalities and would apply to body cam video, but imposes no affirmative requirements on retention.

BWV CATEGORIES
Police Officers utilizing BWV devices must adhere to a department policy that not only governs the initiation and termination of recording, but also the categorizing of the recording.  At the end of recording, or end of shift, the officer must choose if the video segments are critical, non-critical, or would be considered evidence.   For the purposes of BWV categories, a few examples of critical, non-critical, and evidence are listed below:

I.    Critical
  a.    Vehicle stop where seizure and/or arrest is made
  b.    Injury to an officer or suspect
  c.    Use of force
  d.    Formal or administrative complaint/investigation
  e.    Or as determined by policy
II.    Non-critical
  a.    Warnings
  b.    Tickets
  c.    Routine interactions with public
III.    Evidence
  a.    Any images or video captured that an officer reasonably believes constitutes evidence in a criminal case

OMAG recommends a 3 year retention for a critical category and a 180 day retention for non-critical category.  Evidence should be maintained for the amount of time required by statute, until the case is adjudicated, or all appeals have been exhausted. 


Body Worn Video and Records Retention was written by Matthew Love and Kevin McCullough.  You may contact the authors at mlove@omag.org or kmccullough@omag.org .  The information in this bulletin is intended solely for general informational purposes and should not be construed as or used as a substitute for legal advice or legal opinion with respect to specific situations, since such advice requires an evaluation of precise factual circumstances by an attorney.
 

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The Probationary Period

Facts About the Probationary Period

Did you know?

  1. Probationary periods originated in union environments. Probationary periods originated to give employers the opportunity to terminate new employees within a reasonable period of time without all the paperwork and hearings contemplated by a collective bargaining agreement.
  2. Probationary periods are not required for at-will employers. The at-will doctrine states that absent a contract, either express or implied, to the contrary, an employer can terminate an employee for any reason or no reason at all. In a non-union environment, probationary periods just aren’t necessary.
  3. Probationary periods may be construed as an implied contract. A probationary period could create an implied contract.  When you tell an employee you have 90 days to show us that you can do the job, what is the employee thinking?  “I have a permanent job for at least 90 days.”  Or, maybe, “After 90 days I have a job for life.” A written agreement clearly stating that the employment relationship is at-will is the only defense in this situation.
  4. Termination during the probationary period does not disqualify employees from receiving unemployment. The probationary period has no bearing on whether an employee is awarded unemployment benefits.
  5. Probationary periods do not protect against lawsuits.  Probationary employees have the same rights as a non-probationary employee when it comes to filing lawsuits. Probationary employees can file lawsuits alleging wrongful termination, breach of contract, discrimination, harassment, failure to train, etc.  And, there are limited situations where probationary employees can sue for due process violations.  For example, if an employee is terminated in the probationary period for alleged criminal acts that were made public by the municipality, the municipality would owe this employee a name-clearing hearing in order to protect and defend his or her good name.

Tips for Implementing a  Successful Probationary Period

  1. Be clear about at-will employment status.  Make sure employees understand the employment relationship is at-will during and after the probationary period. This is vital to the defense of any claim that the municipality created an implied contract with the employee.
  2. Be clear about your expectations. Objective goals need to be expressly stated to the employee regarding expectations.  Be sure that the employee understands (a) how long the probationary period will last, (b) what needs to be accomplished during that period, (c) how often a review will occur and (d) what standards need to be met in order to successfully complete the probationary period.
  3. Give feedback regularly. Supervisors should conduct periodic reviews with the employee to provide feedback about how the employee is progressing and what needs to be improved.  If the employee is having performance issues, offer detailed guidance and provide additional training if necessary.  Be sure that the employee assigned to provide guidance to the probationary employee is knowledgeable and experienced.
  4. Encourage supervisors to ask HR for help if there is a concern.  Explain to supervisors that HR is a resource and can help ensure employees are being treated fairly and consistently between municipal departments or with prior supervisors. Give the supervisors examples of what can go wrong when they don’t ask for help.  For example, explain the problem created if they place a struggling employee on a one-month probationary period but a former supervisor gave employees three months to improve his/her performance.  Or ask, if sued, how does the supervisor want to be perceived by a jury – as the mean supervisor who did not give the employee a second chance or the supervisor who gave the employee every opportunity (within reason) to correct the problem.
  5. Document Document Document. Remember, if it’s not written down it did not happen, but if you write it down, you own it!  If an employee can’t perform the essential functions of the position, you’ll likely want to terminate the employment relationship. For the best legal defense be sure the supervisor has documented dates, times, locations, witnesses of the employee’s performance, efforts to train, coach and manage, and so on.
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Possible Carbon Monoxide Issues With Certain 2013-2017 Ford Explorer Police Interceptor Utility Vehicles

OMAG has recently become aware of possible exhaust odor and/or carbon monoxide complaints on certain 2013-2017 Ford Explorer Police Interceptor Utility Vehicles.  The Ford Fleet publication below addresses this issue.  Click the black button to access the notice.

Please see that your city administration and police chief have an opportunity to review the notice and address any concerns.

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Noise Hazards

Public Works has many different hazards workers need to be aware of and the municipality must have procedures to ensure workers are protected.  One issue to consider is Noise Hazards.  Print the brochure below to share with your employees who may work around these hazards.

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OMAG Provides Up to $25,000 Defense-Only Coverage for FMLA and OADA Claims

As of June 22, 2017, OMAG is providing defense-only coverage for FMLA and OADA claims up to $25,000. As many of you are aware, prior to this, OMAG declined coverage altogether of FMLA and OADA claims because the only recoverable damages in those cases are wages and employee benefits.  

This new defense-only coverage will allow members to have expert legal counsel at OMAG legal counsel rates. Here are the highlights of the terms of coverage:
•    This coverage is not available when OMAG is providing coverage and defending any of the above causes of action under a reservation of rights. 
•    This Coverage does not and shall not be construed as an agreement by OMAG to indemnify, pursuant to this Coverage, the plan member for any sums the plan member becomes legally obligated to pay.
•    OMAG will not commit you or a plan member to any settlement under this Coverage without your consent unless OMAG at our sole discretion deems it to be in the best financial interests of OMAG. 
•    $25,000 Total Defense Allotment: The total cost of defense which OMAG will be responsible to pay shall not exceed twenty-five thousand dollars ($25,000.00). The $25,000 allotment cannot be used by you to offset any settlement or judgment.
•    Plan member will enter into an agreement with OMAG defense counsel prior to commencement of a defense under this Coverage to address the legal defense once the allotment under this Coverage has been exhausted. 
•    Any claim under this Coverage shall be defended in your name by the counsel selected by us.
•    If a plan member retains separate counsel, any charge made by separate counsel will be the plan member’s responsibility. Our counsel will cooperate with separate counsel. 
•    Plan member shall have authority to control the legal proceedings, including determining whether OMAG defense counsel has primary defense responsibility or merely provides assistance to your separate counsel. 

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Safety Considerations While Using Riding Mowers, Push Mowers and Weed Eaters

Workers operating riding mowers face serious safety issues. Their employers need to make sure the equipment in use is designed and maintained with safety in mind. Employers must make sure that workers are trained to avoid hazardous surroundings. Finally, the employer must ensure that mowing operations are performed safely. 

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7 Myths About Dehydration

Myth #1: Dehydration is uncomfortable, but not dangerous.
Fact: While most of us will only ever experience mild dehydration symptoms like headache, sluggishness, or decreased urine/sweat output, if can become severe and require medical attention. Serious complications include swelling of the brain, seizures, kidney failure, and even death, according to the Mayo Clinic.

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Petya Ransomware Helpful Tips

Petya Ransomware Helpful Tips

By now, you've probably seen the news that a new ransomware virus called Petya, similar to last month's WannaCry, has quickly overwhelmed several large organizations across multiple countries. Like last time (and all of the time's before that), OMAG Technology Services is actively monitoring the news and ready to assist any OMAG members or participants affected by this and other cyber attacks. It appears as though the primary way that Petya spreads is through infected email attachments or links, though there appear to be other, scarier methods that don't require user intervention, especially once an infection has taken hold on a computer network.

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Using Minors as Volunteers

The responsibility to respond to our members' coverage questions and provide coverage interpretation primary falls on OMAG’s Underwriting and Member Services Departments with support provided by OMAG’s Legal and Risk Management Departments. Providing a clear and consistent response to these inquiries is always our goal.

Our members occasionally ask “May we use minors on special municipal projects as volunteers?  

A person is an employee if they are authorized to act on the behalf of your municipality. It does not matter how old they are, whether they are compensated or a volunteer, or whether they are full or part time. The exception is when an independent contractor relationship exists. 

A minor who performs volunteer services for your municipality can thus create liability. As such, if your municipality is considering using minors on special projects or events or assisting with mowing, trimming or cleanup, at the very least you should be sure that all training and any certification related to the responsibilities of the task have been successfully completed. Additionally, it would be your responsibility to see that any volunteer was properly supervised in the execution of the task assigned. 

Virtually all states set the age of majority at 18, which means people 18 and older are legally considered adults and are subject to all associated rights and responsibilities. Anyone under that age exposes the city to additional risks. For minors under 16, OMAG would refer the municipality to Oklahoma State Statues, Section 72.1 of Title 40 which outlines the types of work minors under 16 may not perform and requires consent of a guardian or parent for all occupations when performed on a volunteer basis. 

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What is Wastewater?

We’ve all driven by those “wastewater treatment facilities” that are usually miles away from our city or town. You know the place even before you see it; many times in the summer you can tell where it is by following your nose. Have you ever wondered what happens at those facilities? Basically, dirty water is cleaned and returned to streams and lakes in the following methods. 

What Is Wastewater?
Many people confuse the terms wastewater and sewage. According to Wikipedia, wastewater is any water that has been corrupted by human waste, but can also include industrial pollutants, as well as surface, storm, or sewer runoff. Sewage is a specific type of wastewater from human waste.

How Is Wastewater Treated?
Municipal wastewater is treated in municipal wastewater treatment plants. Once treated, wastewater is released back into water systems. In some municipalities, storm drains run directly into moving waterways such as creeks and rivers. In other municipalities where there is a high level of chemical runoff or where the storm drains combine with sewage the wastewater is sent to sewage treatment plants.

Sewage treatment is simply the process of removing contaminants from wastewater so it can be safely released back into the environment. The solids that are removed from sewage, often referred to as sludge or slurry, often undergo further treatment before being burned or even used as fertilizer.

There are physical, chemical, and biological processes involved in wastewater treatment.

The Three Main Types of Municipal Wastewater Treatment

Physical Wastewater Treatment - Physical or mechanical treatment of municipal wastewater removes the heaviest solids from raw sewage and municipal runoff. The process includes screening, sedimentation and allowing solids to sink, and often removes as much as 50-60% of the solids.

Biological Wastewater Treatment - In this second phase, live microbes are added to consume the dissolved organic matter that escaped the physical treatment stage. Microbes consume the organic matter as food and then convert it to carbon dioxide gas, water, and other less harmful waste. Additionally, much of the remaining organic material recombines or binds together. So, an additional sedimentation and screening may occur. At this point, as much as 85% of the solid waste will be removed from the wastewater.

Chemical Wastewater Treatment - This is the final step that will ensure the removal of more than 99 percent of all the impurities from wastewater. Chlorine disinfection is the most common chemical treatment. Other processes attempt to remove levels of phosphorus and nitrogen. Additionally, carbon filtering may be used in this final stage before clean water is released back into the environment.

What About Septic Systems?
According to some estimates, as much as 20% of the United States is currently treating their own sewage using onsite septic systems. Septic systems take all the water flow out of the home including the human and household waste. The wastewater flows into a septic tank where solids sink to the bottom and oils float to the top. These solids and oils are then removed on a regular basis. The remaining water flows into a drain field where the remaining liquids dissipate into the surrounding soil.

The Importance of Good Quality Microbes in Your Treatment System and Lift Stations
There are words in our language which trigger instant, negative sensations in those that encounter them. Sometimes, these feelings are justified; other times, they are not. Words like ‘bacteria’ and ‘microbe’ fall into this latter category.

These words are often associated with disease, with decay, and with general ill-health and uncleanness, but we need bacteria and microbes to survive. Microbes help us to maintain healthy digestion, they support entire ecosystems, and they can be used to great effect in our cities and towns.

Lift stations, or pumping stations, perform vital functions in our municipalities, but they can become unpleasant and even dangerous if they are not properly maintained. Therefore, good quality microbes and bacteria are vital in a treatment system and lift stations. 

A Fresher, Cleaner Environment in the Local Community
The nature of a pumping station – and the nature of the materials such stations handle – can unfortunately render them somewhat unpleasant to the people who live and work in the surrounding area. While people understand the vital work that lift stations do in municipalities all over the world, it is still the responsibility of the public works department to safeguard the quality of life of people nearby. Using good quality bacteria can assist with this.

Bacteria and microbe products work to neutralize odors, securing a fresher and far cleaner environment for the nearby city or town. They can also be used to treat the wastewater of the lift station – usually the source of the unpleasant odor. Oil, grease, and other unclean substances are broken down by the application of bacteria, and can then be easily removed or drained from the site. A healthy balance of microbes is vital to operations of the treatment system and lift stations.

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