Community College Risk Management Consortium 2018 · 2019-05-21 · and crafting an effective...

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© 2017 ARTHUR J. GALLAGHER & CO. | AJG.COM

Higher Education Practice

Master the Disaster Bill Mullowney, VP, Policy & General Counsel, Valencia College Gina Maisto Smith, Chair, Institutional Response Group, Cozen O’Connor

Community College Risk Management Consortium 2018

17GGB______ © 2017 ARTHUR J. GALLAGHER & CO. | AJG.COM

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Agenda • Anticipating and preparing for issues/potential crises

• Formulating your plan, identifying your team and

and crafting an effective response

• Evaluating common, yet complex legal considerations

Master the Disaster


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Master the Disaster


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Master the Disaster

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Preparation is Key Element to Mastery of Issue Response


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1. Leadership team 2. Access to information 3. Speed of response 4. Informed messaging 5. Response plan

Be Prepared


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• Unique Context of Higher Education – Mission, Values – Duty to Educate – Duty to Protect – Expectation of Transparency and Trust – Geographic Concentration of Community – Connections through Social Media

Preparation


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• Unique Context of Higher Education (cont’d) – Privacy and Reporting Laws – Variety of Audiences – Silo Structure – Board Engagement – Expanded Press Corps (campus, industry) – Access to Alternative Information Platforms – Speed and Velocity of the Information

Preparation


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Assessment and Planning

Photo by Shutterstock; Drawing by Ryder


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• Conduct a vulnerabilities assessment – Execute under direction of general counsel (to extend privilege) – Identify and prioritize areas of risk

• Faculty backgrounds, statements, publications • Staff • Institution’s policies/practices/finances • Activities/speakers • Fraternal organizations • Sex and gender-based harassment and violence • Labor unions • Community relations • Evaluate all legal requirements

– See NACUA Higher Education Compliance Alliance Matrix



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• Conduct a vulnerabilities assessment (cont’d) – Interview key stakeholders to identify concerns: “What

keeps you up at night?” • Senior leaders • Department chairs • Audit, Compliance, Risk Management personnel • Student leaders • Community leaders • Key donors/boosters

– Gather/update useful data: • Employment practices (diversity, etc.) • Safety record/reporting • Higher Education Publications • Social Media Scanning



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• Develop and vet (via Legal) approaches and messages for most likely issues – Media statements – Tough questions and credible answers – Statements to faculty and staff – Statements to campus community – Statements to key external stakeholders

(community, parents, donors, etc.) • Messages developed in advance allow for

the most rapid response during a crisis



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• Messages should: – Highlight values and commitment – Use simple, direct language

• Messages should be clear and include: – What happened? – Why it happened? (or commitment to finding out

why) – The response and prevention plan – Any compelling context to inform accurate narrative

(i.e. law, facts) – Direction and contact information for those who

have information and need support – Tone of humanity



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• Include standby statements in communications manual • Manual should include:

– Step-by-step instructions for team members – Plan to alert broader community – Clear delineation of responsibilities – Full internal and external contact list – Review and update (at least annually)

• Test readiness of leadership and communications team – Media train key spokespeople (primary and back-up) – Conduct tabletop or full drill – Evaluate team’s handling – Modify manual, as needed



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• Communicate early and often – become the preferred source of information

• Use multiple channels to disseminate information (online and offline)

• Monitor carefully – bulletin boards, daily media, trade media, social media, blogs – respond when necessary (to correct inaccurate or alarming information)

• Be sure not to get ahead of authorities – especially law enforcement/emergency responders

During A Crisis


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• Media and many others most concerned with: – What happened? – Why did it happen? – Was it avoidable? – How seriously is the institution taking this? – Does the institution care about the people affected? – What is the institution doing to investigate what

happened? – What is the institution doing to prevent a

recurrence?

During A Crisis (cont.)


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Identification and Coordination of Response Team


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• Identifying your core response team – The Response Team is responsible for all

aspects of the institutional response. – The quality and success of the response is

directly correlated to the functionality of the Response Team

• Composition – Need to know circle – Relationships – Skill sets



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• Composition: Need to know circle; may include: • President or identified other members of senior leadership • Student Affairs • Provost • Legal • Communications • Public Safety/Security • Risk Management • Human Resources • Development? • Board representative? • External Crisis Communications consultant? • Subject Matter Expert? (Internal/External)



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• Coordinating your core response team

– Designation of roles: • Information gathering, • Decision-making, • Drafting, • Spokesperson: Liaising with external press corps, • Spokesperson: Liaising with internal stakeholders • Liaising with Board • Setting agenda topics • Documenting progress and decisions • Facilitating discussion



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• Consider institutional role, availability, skills, nature of the issue, and optics in selecting spokesperson

• Examples: – Media trained press officer – Chief Human Resources Officer could be right choice if

an employment-related issue – General counsel (not preferred) – Board Chair – Institution’s president should be spokesman at select

times (i.e., very serious incident, to communicate meaningful institutional lesson/change/commitment)

– Subject matter expert

Media Spokesperson


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Effective Response: Proper Anticipation, Planning, and Coordination


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• How? – Commit to understanding depth

and breadth of risks – Develop institutional buy-in – Leadership – Proactive problem solving – Coordination and Communication

Prepare…Starting Today


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INCIDENT

UNIVERSITY REPORT

Faculty

Athletics Residence Staff

Student Affairs

HR Professional

University Police

Advisor

Administrator

Central process to uniformly vet all complaints of sexual and gender-based harassment and violence

University’s Response Policies/Procedures Informed by:

University Counsel Criminal Law (Loc. Law

Enforcement)

Title IX (OCR)

Clery Act (DOE)

Negligence (Civil

Counsel)

FERPA (DOE)

HIPAA (HHS/CMS/O

CR) State Laws (AG)

VAWA (DOE) NCAA Child Protective

Services (CPS)

University Policy (Internal)

Other

Note: Lists of report recipients and relevant laws is not exhaustive.

CRIMINAL DEFENSE LAW ENFORCEMENT CIVIL/REGULATORY ACTIONS

MEDIA INQUIRIES

911 Call

Arrest on scene

Detective SVU

Interview victim

Search warrant

Investigation

Physical evidence

Photographs Other interviews

Warrant

Arrest

Preliminary Arraignment

– set bail

Formal Arraignment

Timetable set

Preliminary hearing –

witness called

Pre-trial conference

Motions Offer/plea

Trial Jury

(weeks)

Bench (days)

Pre-sentence investigation

Appeal Sentencing

Interview witnesses

Subpoena witnesses

Advise client not to

participate in disciplinary proceeding

Request deferral of

disciplinary proceeding

Victim Offender

Claims

Civil discovery process

Depositions/ Interrogatories

Document requests / Interviews

Request records

?

?

?

?

?

?

Regulatory Investigation

?

OCR

NCAA

FSA

Accreditors

Athletic Conference

DOJ Open Records

The Challenge of the Context


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INCIDENT

UNIVERSITY REPORT

Faculty

Athletics Residence Staff Student Affairs

HR Professional University Police

Advisor

Administrator

Central process to uniformly vet all complaints of sexual and gender-based harassment and violence

University’s Response Policies/Procedures Informed by:

University Counsel

Criminal Law (Loc. Law

Enforcement)

Title IX (OCR)

Clery Act (DOE)

Negligence (Civil Counsel)

FERPA (DOE)

HIPAA (HHS/CMS/OCR)

State Laws (AG)

VAWA (DOE)

NCAA

Child Protective Services

(CPS)

University Policy (Internal)

Privacy Exceptions

Investigate

Log

Report

Warn

Policy Requirements

Remedial Response

Comply with Law Enforcement

Subpoena Requests

Federal/ State Statutes

VA Reporting

Laws Victim Rights/

Services/ Procedures

Offender Rights/

Services

General

Consult Policy

Other

Confidentiality Laws

Threat Assessment

The Challenge of the Context


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Compliance and Risk Assessment Evaluate all legal requirements. See NACUA Higher Education Compliance Alliance Matrix


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• Each institution is unique in: – Institutional values – Policies and procedures – Resources – Personnel – Public vs. Private – Culture – Challenges

One Size Does Not Fit All


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• Identify all Constituencies – Students – Parents – Faculty – Employees – Alumni – Board – Public

• Identify all known facts – Documents – Interviews with personnel

Initial Considerations


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• Tone – Empathetic – Informed (subject matter expertise)

• Messaging – Consistency or Need to Pivot? – Current Public Narrative – Prior Messaging – Policies, Procedures – Web Content – Training Content

• Timing – Press Deadlines – Balancing Need to Respond Quickly vs. Need

to Gather Complete Information

Initial Considerations


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• Crisis Preparedness – Response Team in place – Documentation hygiene – Marketing/Communication Department Role – Marketing/Communication Expertise – Marketing/Communications Skillset – Prior relationships with press

(external/internal) – Response Policies and Protocols

Crisis Communications Preparation


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– Logistics: • Select regular meeting times • Frequency depends on nature of issue and needs • Create an email group for efficient communication • Identify call-in number for the group meetings (in

person meetings a priority at the outset) • Consider using BOX for quick sharing and version

control • Create spreadsheet for tracking of information and

decisions – Tasks – Issues – Timing

Response Team Coordination


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– Conduct a Brainstorming Session to identify issues, audiences, messaging, plan

– Schedule appropriate check-ins • In immediate aftermath (twice-daily 30-minute

check-in) • Twice daily keeps you coordinated during the critical

time period and helps avoid common pitfalls – decision making without all necessary and relevant information;

• Also maintains buy-in of institutional leaders who must be informed to carry the decided message forward

• As needs subside (daily, weekly, monthly)

– Identify a Response Team Logistics Leader for this check-in

Response Team Responsibilities


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– Response Team Logistics Leader Role

• The lead is often the President’s Chief of Staff, counsel, or the most organized person of the group

• Set up group contact, schedule, send agendas • Keep check-ins focused and the sharing of

information organized • Maintain the spreadsheet capturing the result

categories/tasks of the brainstorming session • Document all updates, decisions on content,

point persons, next steps, and timing decision

Response Team Responsibilities (continued)


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– Timing Considerations

• Create a daily schedule to capture expectations about timing • Determine and document for circulation who is going to do what by

when. • Delegate a point person to keep a working chronology of the

institutional knowledge (actual and constructive) and response – this will prove critical to respond to questions down the road and will avoid the tyranny of temporal compression*

*(common phenomena, coined by Gina Maisto Smith, in the institutional setting, that external audiences judge institutional decisions based on the incorrect inference that ALL administrators knew ALL information at one time)



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– Key Decisions

• Whether to make a statement • Appear on camera? • Speaking to the media – clarify ground rules

– On record for attribution – Off record not for attribution – On background

• Content of statement • Vehicle for statement

– University website – One news outlet or publication – One statement releases to all media outlets



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Higher Education Practice – Key Tasks

• Draft Timeline of Events and Response • Draft review, edit, and approve key messages

– FAQs – Media Standby Statement – Talking Points for Board, Senior Leadership – Script for Calls – Script for Response to Calls – Script for Media Inquiries

• If criminal matter, coordinate with law enforcement authorities to ensure statements do not interfere with investigation

• Brief front office/call center team on how to properly record and route calls on this matter

• Brief key constituents and counselors to alert them to the situation



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Higher Education Practice – Recognize Natural Tension Between Legal and Communication’s

Judgments Related to Nature and Quantity of Information Released



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– Response team training and preliminary reminders:

• Attorney-Client Privilege, Work Product Protections • Ethical Considerations • Privacy Considerations

– Family Educational Rights and Privacy Act (FERPA) considerations

– HIPAA • Open Records Laws

– Open Records Act considerations – Freedom of Information Act (FOIA) considerations

• Additional Legal Considerations

Response Team: Legal Considerations


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• Contours of Attorney-Client Privilege, Work Product Protections include: – Importance of not sharing information outside of the

defined need to know circle – Legal advice and decisions – Documents created at the “direction of counsel” vs.

pre-existing institutional non-legal communications and documentation



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• Ethical Considerations

– Rule 3.6 of the Model Rules of Professional Conduct – “A lawyer who is participating or has participated in the investigation

or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.” • (1) extrajudicial statements • (2) will be disseminated by means of a “public communication” • (3) when those statements will have a “substantial likelihood” • (4) of “materially prejudicing” an adjudicative proceeding



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• Privacy Law Considerations

– Family Educational Rights and Privacy Act (FERPA): • Protects as confidential any document classified as “education

records.” • “Education records” include “information directly related to a

student” that are “maintained by an educational agency or institution or by a person acting for such agency or institution.”



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• Privacy Law Considerations

– Family Educational Rights and Privacy Act (FERPA) exceptions that allow disclosure of personally identifiable information from education records, include: – Consent – Health or Safety Emergency – Litigation – Accreditation Process – Judicial Law or Subpoena – Government Officials

– FERPA is not intended to be an obstacle in addressing emergencies and protecting the safety of students



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• Privacy Law Considerations – Family Educational Rights and Privacy Act (FERPA)

• After a college’s judicial process concludes, FERPA influences how colleges can relay the outcome to the complainant and the public.

• A postsecondary institution may disclose to anyone—not just the alleged victim—the final results of a disciplinary proceeding if it determines that the student is an alleged perpetrator of a crime of violence or a non-forcible sex offense



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• Privacy Law Considerations – Family Educational Rights and Privacy Act (FERPA) and its

intersection with the Violence Against Women Act (VAWA). VAWA requires: • simultaneous written notice to an accuser and an accused of

the outcome, the sanction and the rationale for each • The accuser, the accused, and appropriate officials are given

timely and equal access to information that will be used during informal and formal disciplinary meetings and hearings;

– Per VAWA, compliance with these provisions does not constitute a violation of section 444 of the General Education Provisions Act (20 U.S.C. 1232g), commonly known as the Family Educational Rights and Privacy Act of 1974 (FERPA).



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• Privacy Law Considerations – Family Educational Rights and Privacy Act (FERPA) and its

intersection with Free Speech considerations

– While FERPA provides that parties and institutions not disclose educational records, Colleges cannot require a party to abide by a nondisclosure agreement with respect to their experience



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• Privacy Law Considerations – Waiver of FERPA privacy protections

• “We have not found and do not believe that parents and students generally waive their privacy rights under FERPA by sharing information with the media or other members of the general public. The fact that information is a matter of general public interest does not give an educational agency or institution permission to release the name or related information from education records without consent.”

• Department of Education’s Discussion to Notice of Proposed

Rulemaking, 73 FR 74806 (December 9, 2008)



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• Privacy Law Considerations – Waiver of FERPA privacy protections

• Family Policy Compliance Office (FPCO) Letters; University of Virginia:

• Personally Identifiable Information (PII) evaluated in light of re-identification risk associated with institutional data releases and other reasonably available information

• Speaking with the media is not the basis for IMPLIED WAIVER of FERPA protections, rejecting the university need arguments (public interest, media scrutiny and fairness)



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• Centralized oversight • Multidisciplinary approach

– Legal Understanding – Subject Matter Administrator (i.e. Title IX

Coordinator, Student Affairs Professional) – Other

• Process for evaluating request – Fact-gathering – Consistency in productions – Subject matter expertise in content – Conformity with policies and procedures – Clear decision-making authority

Open Records Requests


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• The Daily Tar Heel filed a lawsuit on behalf of itself, the Capital Broadcasting Company, the Charlotte Observer Publishing Company and The Durham Herald Company against UNC to obtain access to public records. UNC denied the request.

– The Daily Tar Heel, said there is interest in the Chapel Hill community to understand who is found guilty of sexual assault and what the process is like when someone is found responsible.

• The court ruled on May 3, 2017 that UNC is not required to provide public records concerning the identification of students or employees who are responsible for rape or sexual assault through the University’s various procedures.

– The court stated that federal law overrides state law in protecting student records. The court also ruled on the State Human Resources Act, noting that employees are protected from having their information released to the public.

• In April of 2018, The NC Court of Appeals overturned the lower court decision and ordered the University to disclose student disciplinary records related to sexual offenses. See DTH Media v. Folt, April 17, 2018 North Carolina Court of Appeals decision discussing the intersection of Open Records Act requests and the FERPA “crime of violence” exception.

• In May of 2018, the University appealed to the NC Supreme Court

Open Records: Recent Cases


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• In 2016, The University of Kentucky student newspaper, the Kernel, requested the records related to allegations that a former professor sexually assaulted and harassed students.

• The university did not provide the records and argued that the documents should be considered educational records under the Family Educational Rights and Privacy Act, the federal student privacy law.

• Kentucky’s attorney general decided the university violated open-records laws in not providing redacted versions of the requested documents to the student newspaper and his office.

• The university sued the Kernel. • In January of 2017 the court ruled in favor of the University,

stating that the documents "cannot reasonably be redacted to support the privacy rights" of the students.

• The Kernel plans on appealing the decision, and the Kentucky attorney general said he will also challenge the ruling.

Open Records: Recent Cases


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• Freedom of Information Act (FOIA) Requests and State Open Records Act Requests – Maintain detailed records of all prior

productions to Federal Agencies that are subject to FOIA requests

– Identify and consider impacts of any overlap in Open Records requests

Intersectionality of Freedom of Information Act Requests and Open Records Requests


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– Response team training and preliminary reminders:

• Release of information: additional legal

considerations – Court orders, subpoenaes, search warrants – Defamation – State and local laws



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• Best crisis response is based on proper anticipation and planning

• Develop, use and test crisis communications plan and team

• Make sure spokespeople are prepared and empathetic

• Develop and vet well-crafted messages/responses in advance to have ready

• Ensure team is legally informed

Summary


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Scenarios in Crisis, Communication and Response Management: Before, During, and After the Campus Crisis


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Role:

Internal Law Enforcement

Internal Public Affairs

Campus CEO

Campus HR Director

In-House Counsel

Role:

External Law Enforcement

External Public Affairs

Faculty Leader

Millennial Student

Outside Counsel


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Role:

Internal Law Enforcement

Internal Public Affairs

Campus CEO

Campus HR Director

In-House Counsel

Role:

External Law Enforcement

External Public Affairs

Faculty Leader

Millennial Student

Outside Counsel

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Thank You!

Community College Risk Management Consortium 2018 · 2019-05-21 · and crafting an effective...

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