OMAG Remembers Mike Nunneley, Board Member, Colleague, and Dear Friend

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On May 1st, 2018, OMAG Trustee and Mannford  Administrator Mike Nunneley lost his battle with cancer. All of us at OMAG wish to share our thoughts and prayers with his family, his friends, and his colleagues at the Town of Mannford, and join in their profound sadness at the loss of Mike. As much of a genuine pleasure it has been for him to be a part of OMAG, we can only imagine the hole that his passing has left with those that had the chance to work and live with him more closely.

OMAG’s membership elected Mike to the OMAG Board of Trustees in 2016. Mike served as Administrator for the Town of Mannford, Oklahoma, since 2005. Both Mannford and OMAG enjoyed the benefit of Mike’s extensive municipal experience, from serving as Mayor of Granite (and later as their first Town Administrator), and other roles in education and finance. Mike volunteered his time to assist other communities across the State as a frequent speaker at Town Board and City Council meetings on issues of governance and management. He received numerous awards, including being named as the Oklahoma City Manager of the year in 2015. Mike was inducted into the Oklahoma Hall of Fame for City & Town officials in 2017. Mike served Mannford, OMAG, and Oklahoma with distinction and skill.

OMAG and its 376 member Municipalities will feel the loss of his skill, expertise, and counsel. We already miss his warm smile, his joy, and his servant's heart that was always focused towards those he loved: his friends, family, and the people of Oklahoma.

You will be missed, Mike.

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May 2018 - Risk and Safety Newsletter

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Dealing With Poison Ivy

The grass is growing, flowers are blooming, and creepy crawly plants are beginning their annual attempt to take control of our municipal parks and grounds around buildings. Many cities and towns hire summer labor to assist in controlling this invasion. Are these employees receiving the vital training they require to protect themselves from exposure to poison ivy? Do they know what to wear? Can your staff identify the plant? Do they know how to medically treat an exposure to poison ivy?

At first glance one might not think preventing or treating exposure to poisonous plants is that important, but contact with poison ivy can cost an employee and the employer several days of lost productivity due to time off, distraction from normal daily tasks, and medical costs. The following are some basic tips which can be used to educate your summer staff about how they can prevent injury or illness due to exposure to poison ivy.

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Identification

Knowing what poison ivy looks like is key to preventing exposure. Also important is determining how to safeguard oneself from physical exposure to the sticky resin (urushiol), which causes the irritation and blistering symptoms of contact with the plant.

Remember these characteristics to help you correctly identify poison ivy:

·         Found around lakes, creeks and streams in wooded areas

·         Small trailing shrub with a hairy rope-like vine or a freestanding shrub

·         Normally has three leaflets (groups of leaves all on the same small stem coming off a larger main stem)

·         Leaves are not consistent. Some may be smooth on the edges, while others may have lobes.

·         Generally at least one of the leaves has a pronounced lobe that sticks out like a thumb. This makes the leaf look similar to a mitten.

·         Leaves are green in the summer and red in the fall. The plant also produces small yellow or green flowers and white berries.

Protection

Upon identifying the plant prepare to deal with it without exposing yourself to the urushiol. Most cities and towns want this pesky plant removed from parks and grounds around buildings so take the necessary precautions to remove or at least control it.

1)   Wear protective clothing such as a long-sleeved shirt, long pants, socks, at least ankle high boots, and gloves. If you are planning on burning the plants (make sure to contact your local fire department for burning regulations in your region of Oklahoma) take them away from populated areas and wear a facemask. The urushiol can be carried airborne in the smoke and ash and can be inhaled, causing an exposure to the mouth and airway.

2)   After working with or in the plants, immediately remove clothing with protective disposable gloves. Wash the clothes immediately and wipe down (with alcohol and water) any tools used while working in the plants, your boots, and any materials which came in contact with the contaminated clothes and tools. Placing contaminated clothes in a hamper or leaving contaminated shoes and equipment in a place where others can touch them could cause them to contract poison ivy.

3)   Thoroughly wash the exposed areas using warm water and Dawn dish soap as soon as possible after a potential exposure. The urushiol (oil from the plant) will bond to the skin and cause irritation and blisters within 6 hours. Wash and rinse the exposed areas 3 times with the dish soap to greatly diminish or even prevent a rash or blisters. If this does not help, use traditional methods to treat the rash or, in extreme cases, see a physician.

Treatment

If you did not clean up quickly enough or your skin is so sensitive that cleaning didn’t help, redness and swelling will appear within 12 to 48 hours. Blisters and itching will follow. The blisters are not contagious, nor can the fluid from them further spread the rash on the affected person’s body. Further spreading is probably due to the urushiol absorbing at different rates into the skin. However, it is recommended not to scratch the blisters because your hands could have germs on them that might cause an infection. The rash and blisters will disappear in 14 to 20 days, but most people require relief from the itching and seek some form of treatment. For mild cases, wet compresses or soaking in cool water may help. Oral antihistamines can also relieve the itching. Over-the-counter topical corticosteroids or hydrocortisone such as Cortaid or Lanacort are safe and effective ways to temporarily relieve itching. For severe cases seek counsel from a dermatologist or physician as soon as possible after exposure.

One final word of caution- Poison ivy can be contracted year-round. The resin (urushiol) does not dry up in the winter. Also, dead poison ivy may still contain the resin. Cases have been reported by researchers where rashes have occurred from exposure to plants that were in specimen jars for up to five years. Remember to train your summer staff before sending them out. It can save you and them time, money, and discomfort.

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Understanding Your OMAG Cyber Liability Coverage

As personnel in municipal offices change, replacing the knowledge and experience of the person that served your municipality can be difficult.  Understanding insurance coverage when so many other things seem to demand our attention may not be a priority. Please let the following serve to provide a basic description of the cyber liability coverage OMAG provides.  Please refer to your cyber liability and data breach response supplemental declarations page to review applicable limits. 

Information Security and Privacy Liability - Covers damages and claims expenses because of a claim for:

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•    theft, loss, or unauthorized disclosure of personally identifiable non-public information or third-party information that is in the care, custody, or control of the insured organization
•    one or more of the following acts or incidents that directly result from a failure of computer security to prevent a security breach

  • the alteration, corruption, destruction, deletion, or damage to data stored on computer systems
  • the failure to prevent transmission of malicious code from computer systems to computer or network systems that are not owned, operated or controlled by an insured; or
  • the participation by the insured organization’s computer systems in a denial of service attack directed against a computer or network systems that are not owned, operated or controlled by an insured

•    failure to timely disclose an incident described above in violation of any breach notice law
•    failure to comply with that part of a privacy policy that specifically:

  • prohibits or restricts the disclosure, sharing or selling of a person’s personally identifiable non-public information;
  • requires the insured organization to provide access to personally identifiable non-public information or to correct incomplete or inaccurate personally identifiable non-public information after a request is made by a person
  • mandates procedures and requirements to prevent the loss of personally identifiable non-public information

•    failure to administer (a) an identity theft prevention program or (b) an information disposal program required by regulations and guidelines

Privacy Breach Response Services - Provides privacy breach response services because of:

•    theft, loss, or unauthorized disclosure of personally identifiable non-public information or third-party information that is in the care, custody, or control of the insured organization; or
•    one or more of the following acts or incidents that directly result from a failure of computer security to prevent a security breach

  • the alteration, corruption, destruction, deletion, or damage to data stored on computer systems
  • the failure to prevent transmission of malicious code from computer systems to computer or network systems that are not owned, operated or controlled by an insured; or
  • the participation by the insured organization’s computer systems in a denial of service attack directed against a computer or network systems that are not owned, operated or controlled by an insured.

Privacy breach response services include the following:
•    forensic and legal assistance from a panel of experts to help determine the extent of the breach and the steps needed to comply with applicable laws
•    notification to persons who must be notified under applicable law
•    credit and identity monitoring services to affected individuals
•    public relations and crisis management expenses

Regulatory Defense and Penalties - Covers claims expenses and penalties resulting from a claim in the form of a regulatory proceeding resulting from a violation of privacy law and caused by any of the following incidents:

•    theft, loss, or unauthorized disclosure of personally identifiable non-public information or third-party information that is in the care, custody, or control of the insured organization
•    one or more of the following acts or incidents that directly result from a failure of computer security to prevent a security breach

  • the alteration, corruption, destruction, deletion, or damage to data stored on computer systems
  • the failure to prevent transmission of malicious code from computer systems to computer or network systems that are not owned, operated or controlled by an insured; or
  • the participation by the insured organization’s computer systems in a denial of service attack directed against a computer or network systems that are not owned, operated or controlled by an insured

•    failure to timely disclose an incident described above in violation of any breach notice law

Website Media Content Liability - Covers damages and claims expenses for one or more of the following acts committed during the course of the insured organization’s display of media material on its website or on social media web pages created or maintained by or on behalf of the insured organization:

•    Defamation, libel, slander, infliction of emotional distress, outrage, or other tort related to disparagement or harm to the reputation or character of any person or organization
•    Violation of the rights of privacy of an individual
•    Invasion or interference with an individual’s right of publicity
•    Plagiarism, piracy, misappropriation of ideas
•    Infringement of copyright, domain name, trademark, trade name, trade dress, logo etc
•    Improper deep-linking or framing within electronic content

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PCI Fines, Expenses and Costs - Indemnifies insured for PCI Fines, expenses and costs insured becomes legally obligated to pay because of a claim

Cyber Extortion - Indemnifies the insured for certain cyber extortion loss, subject to policy conditions, as a direct result of an extortion threat 

First Party Data Protection - Indemnifies the insured for certain data protection loss incurred as a direct result of: 

•    Alteration, corruption, destruction, deletion, or damage to a data asset
•    Inability to access a data asset
that is directly caused by a failure of computer security to prevent a security breach

First Party Network Business Interruption - Indemnifies the insured for certain business interruption loss sustained during the period of restoration as a direct result of the actual and necessary interruption of computer systems caused directly by a failure of computer security to prevent a security breach

The descriptions contained in this communication are for informational purposes only. The exact coverage afforded by the product described herein is subject to and governed by the terms and conditions of each policy issued. 

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Lexipol - Police Policy Development Tools

Are you a Police Chief, or an officer responsible for developing policies for your law enforcement agency?  If so, it’s time to spring into action and take advantage of another OMAG Value Added Service. We’ve reached the two-year mark since the Title 11 policy mandate went into effect.  As of January 1, 2016, every municipal police agency has been required to have written policies which address critical safety and liability issues which officers are confronted with on a regular basis. 

The Oklahoma Municipal Assurance Group has assisted our law enforcement agencies with policy development for over a decade now.  Two years ago, OMAG took policy development assistance to the next level by partnering with Lexipol. Have you considered Lexipol and just need assistance with getting started?  Are you stuck in the middle and just can’t find the time?  Your OMAG Law Enforcement Specialist can come alongside you and assist in the development and implementation of your new policy manual. 

If you would like to learn more about Lexipol, the country’s premier policy development tool for law enforcement, contact Kevin McCullough at 405-657-1408.  You can also email Kevin at kmccullough@omag.org.

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Caring for Oklahoma Municipal Cemeteries

For many, this will be the first year to honor their loved one on Memorial Day.  Ribbons, flowers, flags, balloons, and crosses decorate resting places and celebrate those held dear.  Although the decorations begin appearing the last weekend of May, preparation of the cemetery began months ago.  When family or friends visit, all they will notice is the condition of their loved one’s grave. You want to make sure that what they see is a clean, well-maintained site.

In maintaining the cemetery, the single most damaging lawn maintenance activity (to headstones) is mowing.  In addition, mowing is frequently the single largest cemetery expenditure.  It is critical that lawn mowing is done in a manner the protects the monuments, as well as the lawn.  The most serious issue is the routine removal of grass in the immediate vicinity of gravestones and tombs.  The best practice is to mow to within 12-inches of markers and finish the work using hand shears.  This approach, however, is almost universally cost prohibitive.  Another approach is the permanent removal of grass around the bases of stones.  The solution is usually discouraged since it creates an unnatural and unattractive landscape and its long-term maintenance creates additional costs and threats to the stone (especially since there will be an inclination to use weed killer as a simple solution).

The best workable solution is to use no power mower within 12-inches of the markers.  Weed whips (rotating nylon filament trimmers) may then be used – with extreme care – to finish the job up to the stone.  For these procedures to cause minimal damage, four precautions are absolutely critical:

1.      The maintenance crew must be carefully trained and closely supervised.  They must understand that the historic markers are very fragile and that the activities used on residential or commercial grounds are unacceptable for cemeteries.

2.      Only walk behind mowers should be used – riding mowers offer too little control and operators are too inclined to take chances in an effort to speed the mowing up and get on to another job.

3.      All mowers – even when used no closer than 23 inches – must have bumper guards installed to offer additional protection.  This can be achieved by using cable ties to attach closed cell foam, such as that used for the insulation of pipes, to the sides, front, and rear of all mowers.

4.      The nylon string in the trimmers must be the lightest gauge possible – no heavier than 0.09 inch.

Perhaps the best protection from mower damage, however, is the active involvement of the superintendent in the oversight of landscape maintenance operations – inspections by the superintendent should be made during and after mowing operations.

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Mowing Risk Management Tips

Municipalities are responsible for maintaining cemeteries, parks and recreation areas, as well as the grounds around municipal buildings. Employees are often mowing, weeding, and maintaining the properties with riding mowers, push lawn mowers, tractors, and weed trimmers. This equipment has the potential to injure operators or bystanders. In addition, objects propelled by the blades or cords of the equipment could also injure bystanders or damage property like headstones in cemeteries, or vehicles parked in a lot or driving by a city maintained median.

Injuries to equipment operators may be reduced with proper use and maintenance of the equipment, coupled with wearing the proper personal protective equipment (PPE). Some injuries associated with the operation of lawn equipment include: cuts and scratches on the lower legs, dust and debris getting into eyes, hand and forearm lacerations, foot injuries and amputations, or back and shoulder strains. Fatalities from falls or rollovers while operating riding mowers are another catastrophic consideration.

Here are some safety tips to consider while using lawn mowers and tractors. Before beginning to mow make sure the area is clear of debris (sticks, rocks, cans, etc.), look for holes or depressions, and identify and mark any large semi-buried rocks or stumps that could damage the mower or cause a rollover. Do not mow while people or animals are in the mowing area. If anyone enters the mowing area while you are mowing stop and shutdown the blade until they pass and are safely out of reach of a flying projectile (about 50 feet). Mow in dry conditions only, not only can wet grass clog the mower, but wet conditions can cause the ground to become unstable causing the mower to slip and slide. Plan to mow during the day. Never mow at night when visibility is limited. Check the weather forecast - never mow during a thunderstorm. Make sure the grass deflectors, blade covers, and other safety guards are in place. If the mower or tractor has a ROPS (rollover protective system) make sure it is in the “up” position and locked in place. Never operate mowers when sleepy or ill.

Match the slope to the mower. If slopes are too steep to mow with a riding mower, use a push mower. With riding mowers, mow up and down a slope – preferably only mowing down the slope and driving (without mowing) back up the slope. When push mowing a slope, mow horizontally across the slope. This will help prevent the operator’s feet from sliding under the blades if the mower or operator slips. Rear engine mowers are fairly unstable and are not recommended to use on slopes, even vertically, due to tip and rollover hazards.

While mowing, do not allow children near the work area, since any kind of accident can occur if the operator is unaware and does not see those who might be attracted by the machine and mowing activity. Never assume children will remain where they were last seen. Keep an eye out for delivery trucks and other vehicles when crossing parking lots and driveways. Arrange the mowing path to avoid propelling objects toward people, vehicles, or buildings with windows. Keep the discharge chute opening lowered at all times and be sure the area is clear of people and pets before operating. If someone approaches your mowing area, stop the blade until they are safely passed. If they approach you on the mower, stop the blade and turn the mower off. Never carry any passengers on the mower or tractor; it is “operator only” aboard the equipment.

Push mowers are designed to be pushed forward. Pulling them backwards increases the risk of accidental contact with the blade. Occasionally, there may be a need to pull the mower backwards while maneuvering, but otherwise try not to mow pulling backwards. On riding mowers and tractors try not to mow in reverse unless absolutely necessary and look in the direction you are traveling if mowing in reverse. Never put your hands or feet into the mower to remove grass or debris. Even with the motor turned off, the blade remains engaged. Use a stick or broom handle to remove obstructions (not your hands). If using a bagger, stop the blade before emptying the bag. Stop the engine before reaching into the discharge chute. Keep movements on slopes slow and gradual. Do not make sudden changes in speed or direction, which could cause a tip or rollover. Do not mow near drop-offs, ditches, or embankments. The mower could suddenly rollover if the wheel goes over the edge or if it caves in. Tall grass can hide objects, holes, or bumps. Go slowly and use caution when mowing through areas where there may be tree stumps or semi-buried rocks hidden by tall grass. If the mower strikes an object, stop, turn off the engine and inspect the mower and blade for damage. If damaged, do not use it until it is repaired. Turn off the blade and wait for it to stop before crossing gravel paths, roads, alleys, or trails. Always stop the blade before removing the grass catcher or unclogging the discharge chute. Before refueling, always allow the engine to cool down a few minutes and never smoke while refueling. Do not run a gasoline or diesel engine indoors without proper ventilation. Shut off the engine and remove the key before leaving the mower unattended, even briefly. When working on the mower, remove the sparkplug wire to prevent an accidental startup. It is especially important while removing the blade – turning the blade bolt with a wrench can turn the blade drive shaft and crank the engine, causing the mower to start. Wear personal protective equipment including work boots, long pants, a long-sleeved shirt, hearing protection, and shatterproof safety glasses or goggles.

Taking these precautions can greatly improve your risk management during mowing season. Fewer windows will be broken, vehicles dented, headstones marred, and people injured if we just take the time to “think safe”.

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Weed Trimmer Safety Tips

Weeds have a tendency to sprout alongside walkways, buildings, and cemetery headstones on municipal grounds. Few lawn mowers can safely get into these edges and corners as needed to cut weeds and tall grass. A weed trimmer is the best way to reach these spots. Consider the following safety tips for using weed trimmers.

Prepare the site – walk the area to be trimmed prior to starting. Remove debris, sticks, stones, and other obstacles or potential hazards. Make sure there are no people or pets in the area and stay alert to anyone or anything entering your workspace while trimming. Prepare the weed trimmer by checking the safety guards and shields, making sure they are in place. Verify there is enough nylon line in the spool. Fill the fuel tank and always allow the engine to cool down before refueling.

When trimming, keep in mind that lawn trimmers can throw objects at high speeds, so avoid working near people, vehicles, and delicate building structures. Never attempt to adjust or repair a weed trimmer while the engine is running. Keep the line short so it does not extend past the guard on the head of the weed trimmer. Keep one hand on the handle and one hand on the shaft of the trimmer to provide greater control. If provided, use a shoulder strap for support to help with weight and vibration of the weed trimmer. This can help prevent back, shoulder, and arm fatigue or strains. When trimming, keep the throttle at full speed, but be able to maintain control of the trimmer. Swing the trimmer in a slow smooth arcing motion. Move the trimmer forward and step forward to cover more ground. Don’t over extend the trimmer with just your arms or bending forward, as this could cause excess fatigue.

Watch for hidden obstacles like wires, fence posts, rocks, or bricks that could cause the trimmer to bounce backwards or entangle the line and jam the trimmer. This could cause injury to the operator or damage the equipment. Wear work boots, hearing protection, eye and face protection, long pants and long-sleeved shirts to protect your body.

Working outside, other personnel safety precautions include dealing with weather and natural conditions. Consider the following additional safety tips while using weed trimmers. If you are working near a street or roadway, wear a reflective vest. Be aware of nearby traffic and parked vehicles and position yourself so you won’t accidentally throw objects into traffic or vehicles. Don’t listen to music with headphones, as it can be a distraction and add to noise exposure. Use sun block and wear a hat to protect from sun exposure. Use an insect repellant with at least 10% DEET to protect from mosquito and tick bites. Stay hydrated, drinking about 8 ounces of water every 20 minutes. Be able to identify and avoid poisonous plants like poison ivy, poison sumac, and nettles. Watch out for venomous spiders, caterpillars, and snakes. Keep a first-aid kit handy and include EpiPens and a snakebite kit in the kit.

The key to safe operation of weed trimmers varies; select the proper type of weed trimmer for the job. Make sure operators are properly trained to use the equipment. Survey the work area and identify or remove obstacles and hazards. Don’t work around people or pets. Inspect and maintain your equipment frequently and follow the manufacturer’s maintenance and safety instructions. Wear the appropriate personal protective equipment (PPE). Compliance with these safety considerations can help better protect workers, citizens, and the municipality from injury, property damage, and tort claims.

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Preventing Trench Collapse

Trench collapse (or cave-in) and caught-in (or caught-between) incidents occur too often. In 2014, 39 workers perished in caught-in incidents. Between 2000 and 2006, an average of 54 workers per year died in trench collapse incidents. Both are scenarios we all want to avoid. Injuries are usually traumatic and permanent. Fatalities are the stuff of nightmare.

Preventing trench collapse incidents

Sonetics compiled the following trench collapse prevention tips from OSHA, the National Institute for Occupational Safety and Health (NIOSH) and Safety + Health:

•    Unless you’re carving out bedrock, any excavation deeper than 5 feet requires a protective system designed or preapproved by a professional engineer.
•    Find yourself a “competent person” — someone capable of identifying possible hazards — and have him or her inspect trench conditions daily.
•    Trenches 4 feet or deeper require safe entry and exit measures (ladder, steps, ramp, etc.) within 25 feet of workers.
•    Plan ahead to place equipment a safe distance away from the trench opening, and locate all utilities.
•    Water and soil make mud, so always be extra cautious during and after rainstorms.
•    Beware low oxygen and toxic fumes.
•    Never assume you have time to move out of the way if a collapse starts.
•    Use barricades, gates, cones, protective tape, signs or any other means necessary to ensure everyone close to the worksite knows the trench location.

Preventing caught-in incidents

With the help of Equipment World, Safety Toolbox Topics and OSHA, Sonetics gathered safety precautions to help prevent caught-in incidents:

•    Maintain a safe distance from working equipment. Be extra cautious of swing radii.
•    If you have to be near working equipment, always stay in sight of equipment operators. If you can’t maintain line of sight, then plan escape routes before work begins.
•    Respect barricades and flagging personnel.
•    Watch out for materials being moved. Forklift loads can be wider than the forklift. Crane loads are often overhead and several feet away from the crane itself.
•    Make sure machinery is properly maintained, guarded and locked out when not in use.
•    “Stay tight,” meaning tie and tuck long hair, avoid jewelry and dress appropriately.
•    Always be on the lookout for possible pinch points — not only pinch points within a machine or piece of equipment but also pinch points between equipment and stationary objects or buildings (watch swing radii again).
•    Avoid multitasking and distraction when working around machinery.

Keep your ears on and your eyes peeled

Time doesn’t stand still on the construction job site, manufacturing plant floor, or the farm. Machinery is used and trenches become longer and deeper. So even when the most steadfast preventive measures are in place, new hazards are constantly revealing themselves. Real-time communication among all workers in the work zone helps identify and fix those hazards before they endanger workers.

It’s important to note that a majority of trench collapse and caught-in incidents occur at smaller companies with fewer than 50 workers. That doesn’t mean that smaller companies are put in more dangerous situations than larger companies. However, the statistical fact should inspire you to take more responsibility for your own safety and that of your coworkers if you work for a smaller company.
 

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Why is a $1,000,000 Per Occurrence Policy Limit Enough?

Why does OMAG have a $1,000,000 per occurrence Policy Limit when there is no limit to civil rights liability under 42 U.S.C. §1983?

OMAG is not a commercial insurance carrier. OMAG was created by the execution of an interlocal agreement, making OMAG an extension of its member municipalities. The purpose of OMAG, as authorized expressly in the Governmental Tort Claims Act, 51 O.S. §167(C), is to allow municipalities to pool their self-insured risk with one another. Id. see also City of Choctaw v. OMAG, 2013 OK 6, 302 P.3d 1164 and Bd. of Cty. Commissioners v. ACCO-SIG, 2014 OK 87, 339 P.3d 866. The extent of the municipal exposure in tort on any given incident is $25,000 per claim property damage, $125,000 (except for the largest municipalities, all of which retain all self-insured risk) for all other claims, and a total cap of $1,000,000 for any combination of claims. 51 O.S. §154.

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Obviously civil rights liability under 42 U.S.C. §1983 is not subject to the limits of the GTCA. That said, under §1983, the civil rights claim must be brought against the “person” who, while acting under color of law, violated a clearly established constitutional right. The US Supreme Court, in Monell, v. Dep’t of Soc. Servs., 436 U.S. 658, 690-91 (1978) held that a local government could be considered a “person” under §1983 but only to the extent that the Plaintiff could show that the entity caused the violation of the Plaintiff’s rights. This is what is commonly referred to as the policy, practice or custom requirement and requires a showing that the entity caused the loss by some policy, practice or custom it has adopted that caused the employee to cause the deprivation of a Constitutional right. This is an incredibly high bar to clear, especially considering the dialogue to come. But, in short, it is very difficult to successfully sue a governmental entity for civil rights violations.

The real exposure in §1983 is for the individual public employee who allegedly acts under color of law to violate a clearly established constitutional right. Unlike the entity in a Monell claim, the employee enjoys the protections of qualified immunity. Unlike the entity, however, an employee is liable for their actions if those actions violated a clearly established right (Monell would attach only after the showing of a violation if, and only if, the Plaintiff could also show that the employee acted per the direction of a policy, practice or custom). Why is this the City/Town's problem if the City/Town is not a named party?

Under the GTCA, the City/Town is obligated to defend and indemnify its employee(s) in §1983 claims so long as the employee was acting within the scope of their duties under the GTCA. 51 O.S. §162. The key provision that answers the question is found in §162(A)(2) which states that the indemnification obligation is limited to the GTCA tort cap limits in §154 – i.e. to $1,000,000.

Simply put, the City/Town is obligated to defend its employees (subject to their being in the scope of employment) in §1983 claims regardless of the cost. The City/Town is obligated to indemnify its employees in §1983 claims (subject to scope of employment) up to the tort cap of $1,000,000. OMAG fully insures this liability exposure by (1) fully defending the City and employees in all claims without the defense costs eroding the limits of our liability and (2) fully insuring the City for the GTCA per-claim caps and total aggregate cap and (3) fully insuring the City and employees up to the total liability exposure that the City is legally obligated to cover of $1,000,000. OMAG tailors its limits to the taxpayer legal liabilities – nothing more, nothing less. Many commercial carriers offer higher limits and, in doing so, expose the taxpayer to higher premiums to cover a liability risk that they are not subject to. They literally are insuring a risk that does not legally exist.

 


This Loss Bulletin was written by Matt Love, Deputy General Counsel and Claims Director.  You may contact the author at (405) 657-1400.  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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