Crisis Handling in Municipal Cases

Kenneth E. Pitcoff and Andrea M. Alonso, New York Law Journal

November 28, 2017

Police departments, school districts and other governmental agencies are often involved in incidents which attract immediate public attention and result in high profile litigation with accompanying media coverage. They may include claims of excessive force, unlawful discharge, discrimination, sexual harassment or embezzlement that result in multimillion-dollar judgments. How these incidents are handled by the municipality and its dealings with the press and public have lasting and possibly deleterious effects on the outcome of ensuing litigation. For example: an excessive force situation by a police officer arises by a shooting or physical assault. A police department spokesperson immediately holds a press conference and issues a public statement to the press that the department’s use of force guidelines were followed. Unbeknownst to the police department’s spokesperson, this statement may create a basis for a Monell claim against the department In Monell, 436 U.S. 658 (1978), the Supreme Court found that a municipal corporation could be liable for its employees’ actions if the execution of an official government policy inflicted a constitutional violation. The result: The police spokesperson has possibly established plaintiff’s prima facie case by issuing an inappropriate, premature statement to the press.

Pre-Incident

Pre-incident preparation is the key to successfully handling these situations. All municipalities should convene a crisis planning committee or meeting. A spokesperson for the municipal entity must be pre-appointed. A mad scramble for the microphone, which often ensures after the incident, must be avoided. A list of contacts of the municipalities’ legal team, insurance broker, insurance contact, media consultant and pre-approved outside investigators must be complied for immediate contact after the incident. Emergency cell phone numbers for these contact must be gathered since these incidents often occur late in the evening not during normal office hours. Time is of the essence in these situations. All these people must be contacted immediately once the claim is made known before any contact is made with the press or the public.

Where, when and who will announce the incident to the public is crucial. Should it be a chief of police, detective, the mayor, the principal of the school? No unprepared statements should be made. All remarks should be written, reviewed and approved by a legal team member. Off the cuff remarks and question and answer sessions should be discouraged until all facts are in and verified. In determining what facts to announce to the public the rule is: do not provide information until it can be proven as accurate. Defer public statements until more facts are released through investigation. No premature positions should be taken. Typical language in a media statement should include:

“This is what we know so far. It’s too early to determine the cause, but we are investigating it and are devoting all necessary resources to it. Reasonable and proper safety precautions have been taken, and there is no continuing danger to the public. We will provide updates as we get more information.”

Compassion and sympathy should be show to all involved in the incident. Typically, press inquiries are responded to with denial and blame shifting. The key is to never panic, lie, use bad language or criticize the media. Attempt to control the narrative, accommodate the media and never, ever, speak “off the record.” As we all are aware, there are no “off the record” statements. Discretion from commencement throughout the litigation until resolution is paramount.

Staging of the press conference is important to consider. How close should the press be allowed to the scene? Should a conference be held at the scene or at a municipal office? At a podium or an outdoor setting? All of the decisions effect how the case will be initially perceived by the public. Initial perceptions will linger throughout the litigation of the case.

Prior to any incident, a municipal agency must have a written social media policy or handbook and training on social media usage. Employees must be advised that their social media presence has far reaching legal implications. It may be wise to consider an outside investigator to monitor employees’ social media presence regularly prior to any incidents. A shutdown or blackout of discussing any incident on social media should be enforced as well. Whether employees involved in the incidents should be suspended with or without pay must be decided before a case breaks. A pre-approved policy on retention of employees should be in place. A team must be assembled to respond to an investigative agency requests or subpoenas.

Immediately Post-Incident

The most vital step to be taken once an incident occurs is that all employees must be prevented from discussing details of the incident with any member of the press or in any form of social media. Second, it is important to communicate to all employees that documents, videos, electronic records and social media evidence must not be destroyed. Sanctions for spoliation of evidence have become increasingly onerous. In Congregation Rabbinical Coll. of Tratikov v. Vill. of Pomona, 188 F. Supp. 3d 333, 336 (S.D.N.Y. 2016), the Village of Pomona in Rockland County was ordered to pay $42,940 in attorney fees based on a federal judge’s finding last year that two village officials knowingly destroyed evidence in a zoning and land-use case.

The fee award followed the court’s finding that the mayor and former village trustee were guilty of spoliation of evidence for destroying Facebook pages, texts and other related materials germane to the underlying case. This represented a “rare case where bad faith, and a clear intent to deprive plaintiffs of evidence at issue, was sufficiently clear from the face of the record” for the court to grant the sanctions. The fees pertained to the plaintiffs’ cost of pursuing the sanctions for spoliation.

Oftentimes municipalities have a routine record destruction policy. This must be immediately suspended once the municipality is aware of an incident. Spoliation would be found despite the fact that the destruction was the custom and practice of the municipal entity.

Legal hold of letters should be sent from the time of the incident and throughout the litigation directing employees to preserve all documents, conduct a search for documents and identity all individuals with knowledge of the event in question. Documents include, but are not limited to, the following: letters, contracts, memoranda, spreadsheets, images, emails, voicemails, text messages and calendar entries.

The letter should make it clear that destruction of relevant documents is prohibited and the failure to comply could result in disciplinary action, such as dismissal and/or civil or criminal penalties. All documents should be preserved until further instruction. Additionally, documents should not be created or redacted or altered in any way in order to provide the sought after information.

Third, the identification and interviewing of witnesses to the incident must be done post-haste. Depending on the nature of the claim, a municipality should consider hiring an outside law firm or investigator to accomplish this. Using attorneys to interview witnesses is advisable since attorney client privilege may be applicable and, provide protection in the ensuing litigation. Similarly, a document management company should be retained to preserve, collect and manage relevant documents including electronic records. A pre-approved investigation form should be retained. This is also true in terms of a pre-approved or retained public relations firm to deal without media coverage of the incident.

Post-crisis

Once the case is resolved, the municipal entity must revise its crisis plan and conduct a post-mortem to prepare a “lesson learned” evaluation and make any needed changes to procedures. Insurance policy limits and coverage needs must be re-evaluated to determine whether an incident such as the one in question is covered by the existing policy and if the policy limits are sufficient. This will avoid lengthy and costly declaratory judgment actions to determine coverage. Additional employee training and additional legal education should be considered to prevent repeat incidents.

Crisis Prevention

In order to prevent excessive force claims, harassment claims, discrimination claims, wrongful discharge claims, embezzlement, etc., audits of “high-risk” incidents should be held. A crisis response plan and drill should be implemented before an incident occurs. Compliance programs and review of document retention procedure should be held. Constant training of proper social media usage and contact is vital to preventing spoliation of evidence and sanctions being imposed during litigation. A handbook or written policy on employee social media usage must be distributed to all employees and constantly reviewed and revised.

Municipal cases that attract the attention of the public and the press are fraught with potential problems which, if not dealt with properly, can seriously increase the value of these cases. The key to successful handling is to have the municipality prepare for the eventuality by having a crisis plan in place. That plan must include a crisis team to deal with the media, the public and employees involved including identifying witnesses, and a plan for document retention. The overall theme of comments to the media and the public must be to provide any accurate information and demonstrate compassion for all parties involved. Never permit your municipal client to try its case in the press. Any other tact may result in protracted and unnecessary litigation.

Kenneth E. Pitcoff and Andrea M. Alonso are partners in the firm of Morris Duffy Alonso & Faley. Mr. Pitcoff is the managing attorney of the firm’s civil rights division.

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