Governmental Fleets Not Covered by FMSCA Regulations? Think Again!

The Federal Motor Carrier Safety Administration (FMSCA) was established January 1, 2000, to regulate the trucking industry in the U.S.  The primary mission of the FMSCA is to improve the safety of commercial motor vehicles and truck drivers through the enactment and enforcement of safety regulations.

One question Oklahoma cities and towns ask themselves is whether FMSCA regulations apply to governmental fleets.

Many Oklahoma cities and towns believe they are exempt from FMSCA regulations governing truck weight limits and other safety regulations.  It is true that governmental fleets have exemptions for emergency vehicles and snow and ice control equipment.  However, government fleets are not exempt from operating a safe vehicle as defined by FMCSA regulations.

Oklahoma municipalities may be exempt from the highway loading limits; however, they are still subject to vehicle design loading restrictions.  For example, if you plan on loading the rear axle of a flatbed or dump truck to 26,000 lbs., the axle (including springs and tires) must be rated for at least 26,000 lbs.  Otherwise, the flatbed truck used in this example would be considered an unsafe vehicle as mandated by FMVSS (Federal Motor Vehicle Safety Standards).

The three common infractions for government fleets are driving without a CDL (Commercial Driver’s License), not conducting drug and alcohol testing when required and oversize or overweight municipal dump trucks, refuse haulers, or jet-rodders.  It is noteworthy that when municipal vehicles travel to other states, the size and weight violations for these vehicles are left entirely to the discretion of the state in which they are located.  It pays to be aware of the laws of states your fleet may be traveling into.

Over the last decade more and more states have adopted most, or all, of the FMCSA regulations as their regulatory guidelines.  It is important to note that exceptions for governmental agencies only apply to particular chapters and/or sub-chapters of the FMCSA regulations.  If your agency leaves its municipal boundaries or crosses a state line, regulations may apply to your agency in different ways. 

On a related note, private entities doing government contract work, such as for-hire hauling, may  mistakenly believe that FMSCA regulations do not apply to them when they are working for a government agency.  The municipal exemptions do not apply to these private entities, even when they are doing contract work for a municipality.

Post-Incident-Interest

Government vehicles are not targeted by law enforcement for FMSCA violations.  However, accidents can involve serious ramifications for vehicles with FMCSA safety violations.  If you’re involved in a serious accident, Highway Patrol has the right to impound your vehicles to investigate the incident under FMSCA guidelines.  This is the same way they would treat other carriers; they don’t have special guidelines to follow for governmental agencies.  They will ask for the vehicle’s driver’s vehicle inspection report (DVIR), maintenance and inspection records, and the driver’s file.

It is important to know there is no exception to random annual drug/alcohol testing for all CDL drivers.  All municipal employees who operate vehicles requiring a CDL are subject to the CDL and drug testing requirements.  Only very specific, very narrow exceptions sometimes apply and most municipal fleets do not fit exemptions in these areas.

What are the consequences of violating FMCSA regulations? They are the same for municipalities as for anybody else. The operator of the vehicle could be ticketed. The driver could be ticketed or warned.  If your vehicle is overweight, and you are in a state that enforces that, then you are going to get an overweight ticket. Oklahoma does enforce weight limits.

For more information on CDL drug testing, driver files and FMCSA regulations, contact William Sheppard, OMAG Risk Management Analyst, at wsheppard@omag.org or (800) 234-9461.

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.
 

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.

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.

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.

Put an End to Backing Accidents

According to the National Safety Council, one out of four vehicle accidents can be blamed on poor backing techniques.  Backing accidents cause 500 deaths and 15,000 injuries per year in the United States.  The use of safe vehicle backing techniques by municipal personnel can help reduced accidents while on the job.

• Blind Spots:  Know where they are.  In a medium-sized truck, blind spots can extend up to 16 ft in front and 160 ft behind a vehicle. Drivers need to remember that mirrors can never give the whole picture while backing. In the photo below, the blind spot to the rear of the fire truck is 247 ft.

• Think in advance: Don’t back your vehicle unless you must.  Plan before you park.  If possible park along a curb, in an alley, at the gas pump or pull through a park spot.

• Back Slowly:  Back your vehicle at less than 1 mph.  If you do strike an object, driving slowly will limit damages.

• Park Defensively:  Don’t park near high traffic areas, for example at the entries of businesses; these areas are where you are most likely to be involved in an accident.

• First-Pull-Forward:  Back into your parking spot upon arrival.  If you have parked forward in a parking space, at the time of departure by the time you shut the door and click your seat belt a car or group of people could now be in your backing path.

• Use Correct Backing Path:  Only back up if you must.  If you do back up, use the correct backing path: (listed from least hazardous to most hazardous) straight backing, backing using the driver's mirror (swinging to the left), backing using the passenger mirror (swinging to the right).

• When backing, be cautious of front end swing:  When driving forward the rear wheels follow the steering axle; when backing, the front of the vehicle will swing wider than the rear axle.  This swinging could result in the vehicle striking vehicles or other objects.

In the photos above, if the sanitation truck driver were to back up and swing right, the truck would strike the silver Camaro sitting next to it.  You can see in the third photo that the car is not visible to the driver in the side-view mirror.

• Use backing aides:  At a minimum most vehicles have a rear-view mirror and side mirrors.  Some vehicles have additional mirrors, backing sensors and/or backing cameras.  Don’t focus on just mirrors or a backing camera, use all of the tools at your disposal to back safely. 

• Do a walk around:  Walking around a vehicle gives a driver a firsthand view of the backing area and any limitations.  They can check for children, soft or muddy areas, potholes and other dangers.  In addition, they can also check for obstructions, low-hanging trees and wires, and other potential clearance-related hazards.

• Every backing situation is new and different:  Sometimes a driver visits the same location several times a day and should be watchful each visit for changes and any new obstacles.

• Use a spotter:  Drivers should use another person to help them when backing.  The driver and spotter should use hand signals instead of verbal ones.  Before using a spotter, agree on the hand signals to be used prior to backing.  If you get a signal you don’t understand, stop and don’t continue until you understand the information the spotter is giving you.  In addition, don’t have spotters walking backward while giving signals and don't place them in a caught-in-between hazardous situation (i.e. a backing sanitation truck and dumpster, or backing truck and a wall).

Long-Term Solutions to Safe Backing

• Implementing backing policies/procedures can help reduce accidents and injuries. These are some considerations for backing policies:

  • Limit backing to a specified distance: Do not back more than 200 ft. If you must back further, pull forward to get in a better position to shorten your backing path.

  • First-Movement-Forward: Require all vehicles to back into parking spots upon arrival.

  • Require spotters for vehicles with poor driver visibility, such as sanitation, fire and dump trucks.

  • Shorten backing path and improve visibility in areas of constant backing, such as at sanitation transfer stations.

• Installation of backing sensors and rear-vision camera systems in vehicles assists in limiting rear blind spots. Investing in rear-view camera systems for vehicles can put drivers in better visual control of the rear of a vehicle.

• No amount of forward-driving experience can help a driver with backing a truck or other vehicle. All drivers need to practice safe backing techniques and limit backing to only when absolutely necessary.

• Creation and support of a municipal-wide training program: The program should include a driver’s course to teach and review backing techniques, and also cover equipment usage, hand signals, dangers to avoid, and other risk-lowering topics.

*Special thanks to Albert Pierce (Solid Waste Director, City of Durant) & Stephen Coy (Fire Chief, City of Warr Acres) for their contributions to this article.

For additional information on driver training or other value-added services from OMAG contact William Sheppard or Billy Carter at (800) 234-9461.