Coaches in Crisis & The College Athlete Sex Problems

From Penn State to Baylor to Louisville to Michigan State, it seems that coaches are in crisis. Are they responding well? No. They need some basic coaching in crisis management.

When you get down to it, the X’s and O’s are the same for corporate and governmental executives as it is for coaching executives. Yes, head coaches are executives. Here are some basic precepts for them.

1. You are an executive. Yes coach, you are paid the big bucks and your neck follows the program’s stumbles. Accept that fact. Quit acting like a mid-level bean counter when problems arise.

2. Your University — your employer — has rules. Follow them. Coach, you know how you get mad when a student athlete doesn’t go to class? Or, maybe he or she skips a practice? Well, if you want the students to be accountable, you need to act the same way.

3. Be honest.. If you have followed the rules, don’t tarnish your image with a dirty dance.

Now that we have the basics — you know, the kind of things they teach 7-year olds, let’s move to the good stuff.

4. The University’s reporting system is your safe-haven.. This is the most important lesson. You coaches tend to think the rules are shackles. You want to live in the dark ages — like when you protected your players from their bad conduct. Ever hear the phrase, “If you have a problem, call me first?” Well, that may still be a good thing to say to the players. But — as a coach, it is not your job to run blocker for their bad conduct. Your job — as a highly paid executive — is to follow corporate rules. As coach, you should not tie your credibility to a teenager’s conduct. The teenager’s conduct should stand on its own, and be guided by you.

Now, if those reasons are not enough, let’s visit about the safe-haven concept. There are prohibitory rules and procedural rules. Prohibitory rules say you should not mess with kids, and that kids should not assault other kids. Procedural rules prescribe the steps that must be followed in responding to an alleged violation of a prohibitory rule. Harry Truman said that “the buck stops here” — meaning at the top. Well, in the criminal conduct arena, the buck stops with the culprit. And usually the culprit is someone below the the top rung. The procedural rules are designed to tell the institutional big boys what they are to do to avoid becoming a culprit.

You see, if you don’t follow the rules, you become a culprit. And as a responsible executive coach, you deserve to be fired.

Safe-haven? If you follow the rules, your credibility and position should be safe (assuming you don’t focus-recruit on thugs). Compliance is therefore your safe-haven. Now, that said, a safe-haven is not necessarily a safe-harbor. A safe-harbor guarantees no legal liability. But I suggest the practical implications are the same. Follow the rules, you will be OK.

5. Prepare for the onslaught. Even if you have done everything right, nobody will believe you at first. Do you come out swinging? Do you sacrifice your staff or the players? Do you bite at the University executives? I think no to all of them. You are just the coach. Yet, you should prepare. Go to the film room with an advisor that knows something about crisis management. Yes, I know. If you appreciate Ezra Charles’ witty song, Hurry Up and Love Me (cause I’m getting uglier all the time), you are thinking about his bar that yodels Let’s blow this joint and go somewhere classy … like my place... So yes, I am suggesting you consider hiring someone like me. We can help you with all of the difficult decisions discussed in this post.

6. Detail your compliance.. If you duck, you look guilty. Your first statement should detail the procedural requirements and your steps to comply. That is going to take some preparation. It is, of course, dependent on Precept 3. Face it, these issues are media-fodder. They love it when you spin things. Try to avoid the spin. And again, Precept 5.

7. Manage your internal communications. Emails, letters, memos, text messages, even phone voice mails, all are subject to inspection. Keep your story straight and simple: Followed the rules, cooperate with investigations, and assure the players are learning, honest, and in compliance. More on that in Precept 8.

8. Manage your team.. This must be immediate. How you manage your players will definitely be a part of the public’s impression. Caring and yet stern. You cannot assume other players have not been infected, but you cannot indict them willy-nilly either. Your job is the same as being on field. You are to provide structure but not to perform. You should not be conducting investigations. Rather, you should be working with administration to promptly design and implement an independent investigation. Your job is to provide the structure for the players — to prepare them in an honest fashion. Your coaching team also needs to be prepared. The message must always be one of honesty. Again, you should work with administration. Injecting yourself into the investigation only taints the effort and exposes you to criticism. Again, an independent investigation is your safe-haven.

9. No off-the-record conduct, please! I heard Coach Slayback on ESPNU Radio say he was approached by another university coach who had a problem with one of his player’s involvement with a female player from another school. The coach wanted to get on a different phone to talk about it. What a great way to step into the liability club. And, now that coach has invited another coach into the fray! Must I say more?

10. Be humble, contrite, and caring. Too many coaches think that this precept is number one on the list. It is not, although it is absolutely imperative. You must have credibility, and that means Precepts 1-9. If you establish credibility, Precept 10 will be credible. Establish your credibility first, and then, in the same discussion, spend some time on these personal factors. That said, a brief introduction of concern is necessary.

The game of life only gets harder as you age.

(c) Paul M. Bohannon 2018. www.BohannonLegal.com

Advanced Planning Techniques: Going Beyond the Crisis Response Team

Once a crisis presents itself, staying ahead of anticipated consequences can mitigate the potential for CEDs. The process itself is really fairly simple. The key is having the right nose to detect the consequences in a timely fashion.

Simply stated, we conduct a few interviews regarding the industrial process involved and the suspected cause, and we secure a general understanding of the topography. Usually, we do not need to see your site, as your usual consulting engineers and lawyers handle that detail. We just rely on our experience and your information. During the process, we may identify additional information you may need in response implementation. It is an evolving process. We are at our best when we are asking questions. We encourage you to consider all aspects, and we challenge any assumptions or information upon which you are relying. As I like to say, if you can’t answer my question in a short sentence or two, then you don’t have a full grasp of the answer.

1. Is That Dog Friendly, Or Will It Bite Me? You need to consider whether your forms are adequate – has sufficient attention to real life circumstances been
given to them? Let’s talk a bit about the types of things that may be deemed deficient compliance. In this era of business-friendly regulatory policy, you may feel it safe to assume things will be handled quietly with little risk to your corporate image. Agencies seem to apply the “usual suspects” approach to enforcement. If you are big enough, you will be a target. And yet, lurking behind the regulatory enforcement screen is another dog that’s might just bite you. Many companies require its vendors, suppliers and service providers to identify any pending regulatory matters as well as resolved ones. The matter you thought was being quietly handled now arises in a way that could directly affect your business reputation.

2. A Few Examples. The SPCC provisions require containment features to be identified. If you suffer a spill into an unlined containment feature, has your problem escalated under RCRA? Is that designation actually a wise choice? By designating an official pond structure, you are assuming full responsibility for the pond in the penalty context. The simple example is that SPCC provides a
penalty based upon the reported volume of the containment facility. If, for ease of implementation, you assign an existing pond of more than one million gallon capacity, but only need 40,000 containment
capacity, you have accepted a penalty of range of not less than $50,000 daily for major noncompliance, rather than $8,000 – $20,000 per day. Simple document errors can result in penalties and
impede your good conduct history. Many times, the facility response and SPCC plans are not consistent. So, a bit of extra care to your paperwork can go a long way in minimizing the exposure and criticism in a crisis. More important, if you have these things in order, your attention can be focused where it belongs: on managing your crisis.

Case Study #6: Join Me at the Water Fountain …

The setting was a helicopter transport certification proceeding at an airport. The Board of Commissioners, sitting en banc, were very receptive to the application and frankly, hostile to my client. The statutory burden was very lenient on the applicant, with very few reasons to deny it. Now, my client was already a certificated carrier who was protesting the application. It constituted an unconditional bar if the applicant had held itself out to the public prior to receiving the certificate. While the client believed the applicant had violated this statutory bar, we couldn’t shake the applicant at the hearing. After nearly two full days of testimony, my head was pounding in defeat. We took a break. I went downstairs for some quiet and took a sip at the water fountain. As I backed from the fountain, I regained my focus. When the hearing resumed, I invited the Commissioners and the applicant to join me at the water fountain. They resisted, but I persisted. We trundled downstairs.

And there the commissioners stood, flushed with anger after two days of grueling hearing. Above the water fountain stood a poster ad, offering the helicopter service to the general public — from the applicant.

The lesson I learned — don’t forget to look in the most obvious locations. Application denied.

Case Study 5 Plain Sight — Case Study 7

(c) Paul M. Bohannon, www.BohannonLegal.com

Case Study #5: Truth is Sometimes Hidden in Plain Sight…

If you have ever been sued in a car wreck case, you know that it constitutes a personal crisis, causing stress. This funky case suggests that in dire times, check every stone.

I had a partner years ago – his son became Doogie Howser, MD – who was trying a tiny accident case in a small town. His client swore he did not cause the accident. But, the other fellow was suing his client, seeking damages.

After a couple of hours of testimony, my partner could not shake the plaintiff’s story. Things looked bleak in this rear-ender. It seemed to my partner the plaintiff was cocky and offensive. Out of frustration, my partner says he threw his hands in the air, turned around, and barked out to the Plaintiff, “So what were you doing? Driving in reverse?”

The Plaintiff, cocky but honest, meekly said “Yes.” Case over.

Case Study 4 – Dirty Laundry … Case Study 6 –

(c) Paul M. Bohannon

A CRITIQUE OF “IMPROVING HYDROPOWER OUTCOMES THROUGH SYSTEM – SCALE PLANNING: AN EXAMPLE FROM MYANMAR

By: Paul M. Bohannon1

The United Kingdom’s Department for International Development engaged the Nature Conservancy, World Wide Fund for Nature and The University of Manchester to prepare a report recently released, entitled “Improving Hydropower Outcomes Through System –Scale Planning: An Example from Myanmar (‘Report’).” This critique seeks to identify the positive and weaker aspects of the Report.

Introduction.

The Report should be viewed as a policy document, emphasizing the need for greater planning should Myanmar choose to continue its dam development. The authors are commended for their effort to improvise a planning system. Essentially, the authors propose a system-wide planning approach rather than a dam-by-dam review. In doing this, the Report relies upon a computer model. While some generalized modeling results are offered, the Report lacks sufficient detail regarding the modeling assumptions, time lines, territorial ranges, and variables to actually engage an analysis of the merits of the model itself. It does not appear that model has been technically peer reviewed, nor has it been tested in a judicial context. Nevertheless, the conceptual model provides a basis for hearty discussion.

The Report encourages all relevant stakeholder interests to be considered.2 However, the Report primarily addresses the commercial aspect of hydroelectricity. The emphasis is on commercial implementation, and therefore suggests a bias supporting hydro power in Myanmar. In this author’s view, there are serious governmental and citizen concerns that must stand on an equal platform with commercial concerns. These concerns will be addressed in this critique.

Policy Considerations.

Although dealt with in a rather cursory fashion,3 there are substantial and imminent national policy considerations involved in the various dam proposals. The Report indicates it is “proposing an approach that strives to design an overall system of water and energy management[.]”4 Indeed, this is a laudable goal. Yet, Myanmar is a newly elected democracy that must traverse a well-steered course to maintain its democratic ways, after almost sixty years of junta rule. During that time, the country’s infrastructure aged and the general population suffered more and more poverty. With its new-found freedom, every segment of the population presents many demands – because there are so many things that need improvement. The magnitude of these demands create an over-arching demand: the NLD must nurture the evolving democracy. Somehow, the NLD must find a balance in these competing demands to retain the general population’s confidence. The balance is further challenged by a split-governance, with the military retaining its decision-making independence and, for that matter, a substantial 25% mandated role in the Parliament.5

Fundamental to the Report’s conclusions is that the decision process should be system-scale planning-based. Underlying this recommendation is that the NLD can reopen the agreements entered into between the three military-lead nations (Myanmar, China, Thailand). Perhaps the Report authors assumed this to be accurate; there certainly are serious human rights and contractual issues with respect to the various agreements.

China and Thailand reportedly have demanded that the contracts be honored.6 A system scaling approach of multiple dams necessarily means “every dam is subject to reconsideration.”

The Report sugar-coats the reason for the dams, pointing out that “there is considerable interest in developing more hydropower.”7 The reality is that the dams are extremely controversial, causing de facto civil war strife in the most affected areas. It is not a broad leap to conclude that the general populace does not want the dams.8 Myanmar is desperately under-electrified on the grid.9 The economy is impaired for lack of reliable electricity.10 This paints a plausible justification for the dams. But, one must look beyond the golden halo. The dam contracts are shrouded in mystery,11 with the three military governments not releasing more than a fig leaf of information about them.12 What we do know is that on one or more of the dams, China and Thailand, collectively, will take 90% of the power generated. This means that Myanmar will receive only a pittance of power from the plants in exchange for the burdens created. To further compound the issue, Thailand will take the excess reservoir water, without any known consideration. Meanwhile, downstream water users will suffer climate changes due to reduced water flows, decreased fisheries, increased sedimentation, and impaired transportation. Further clouding the situation is the fact that the Myanmar private investors are related to the junta led government that executed the agreements.

The Report does not address these darkly shrouded circumstances. Rather, it proclaims there is considerable interest in developing more hydropower. Hence, the impression is that the Report is fundamentally biased, favoring dam development. One might suggest that the report is flawed in its assessment of the implications for Myanmar, as the Report suggests that Myanmar “energy planning is just for domestic demand.” 13 The truth is the Chinese and Thai will build, finance, operate, and they and Thailand will take the lion’s share of the power and excess water. It is more credible to suggest that the energy planning is for international supply, to be provided through Thailand, who wishes to become the energy center of Southeast Asia.

Care should be taken to track the long-term electrical supply consequences of these dam agreements. All acknowledge that Myanmar’s newly established democratic economy will grow sharply, with electrical demand increasing in tandem. There has been no study indicating that Myanmar’s 10% electrical share of the dam’s output will be sufficient to solve its current electrical problems. Either immediately or in the foreseeable future, Myanmar’s growth demands might exceed its electrical supply allocated from these dams. In that event, Myanmar would have to purchase electricity generated in Myanmar – at a very high social and cultural cost to its citizens – at higher prices from Thailand.

Stakeholder Considerations.

The Report does address stakeholders in a cursory fashion, providing far more analysis to commercial stakeholders than citizen stakeholders. In a subtle stroke, the Project Schedule14 reflects that about a half day was spent with local CSO consultations (some of which actually were with international NGOs). Perhaps there were citizen meetings, but they simply failed to be important enough to deserve specific mention in the Report. Enough cannot be said about the general population’s view of these dams. The Report notes that the decision process must include all stakeholders to garner confidence in the system. Yet, the report is glaringly deficient in that it does not suggest a mechanism to identify stakeholders. This deficiency could lead to a lack of transparency. The Report prefers to address performance and stakeholder metrics.

Performance metrics address financial capital and operating costs, and engineered quantities like firm and total energy yield.15 From this, I infer the stakeholders to include financing institutions, engineering firms, modeling firms, agricultural and fishery persons, and others having a commercial interest in or around the dams. This is all good and correct, but it does not go far enough. Solely at first blush, local villages and chieftains, state and national parliamentarians, ethnic groups, and religious leaders should all be included.16 Each of these, in their own rights, likely would present fresh viewpoints. Certainly the Report does not preclude their inclusion. However, the Report fails to recommend a system to identify stakeholders. Each step of this process needs to be transparent.

While the Report addresses the dislocation issues, the concern appears to be sublimated to the commercial discussions. Dislocation is a human rights issue and must be given substantial weight in the planning process. The general Myanmar populace is poor, frequently living with little reliable electricity. They have lived in local villages for generations. They are culturally attached to these lands. Typical of developing countries, Myanmar owns the land – not those living on it. When Myanmar wants to use the land for a pipeline or a hydro dam, the citizens are essentially ejected from the land without much consultation. To well-developed countries, this is a foreign concept. While some project developers (like in the Myanmar dam projects) state they will compensate for the dislocation, in fact many have been forced to bear the cost of their relocation without receiving land compensation. They are cast out from their homes, their relatives and friends, even their churches.

The Report’s bias toward dam development further manifests itself in the definition of “stakeholder metrics.” It identified ten stakeholder metrics used to quantify various dam location performance standards.17

Stakeholder Metric

How these metrics were assessed was not detailed in the Report. Certainly all of these metrics could affect social as well as commercial interests. What is clear is that there is no reference to the loss of heritage sites, religious temples, endangered species, burial sites, ethnic and cultural and familial ties to the land.

V. Commercial Considerations.

The report addresses investor fright, suggesting that Myanmar’s suspension of the projects and conducting further review contributes to investor fright.19

“The selection process is seen as a black box, with low levels of transparency and accountability. Given this context, it is not surprising that conflicts have led to suspensions for some major investments – such as the Myitsone project on the Irrawaddy River, and other projects have been contested and delayed, resulting in major costs to developers and to power consumers. These perceptions and conflicts in Myanmar and elsewhere, erode public confidence in decision making and increase uncertainty for investors and funders.” (emp. added)

And again, the issue is addressed:

“However, after an initial wave of development interest earlier this century, relatively few projects have actually progressed because of security issues in ethnic regions, political uncertainty, and conflicts over environmental and social impacts leading to the suspension of some large-scale projects.”20

The latter references are open to blame orientation and suggestions of implicit bias against those resisting the dams. Many of the “security issues” resulted from military occupation to hold the land for the dams, to the detriment of ethnic groups and displacing the citizens.21 Democracy brings more reliable investor confidence. Democracy requires more transparency. Transparency spawns citizen enlightenment. Citizen enlightenment breeds better governmental decisions. Contracts shrouded with mystery yields distrust among citizens. Contracts in which citizens gain little but give much fosters unrest and “erode public confidence in decision making and increase uncertainty for investors and funders.” Myanmar must take a holistic approach, taking into consideration all spectrums of industrial investors and financial institutions. The NLD government’s efforts to scrutinize the merits and enforceability of these dam projects will positively reinforce international confidence.

The Report’s approach to investor fright is shallow. Indeed, the Report wholly fails to analyze the underlying investors who stand to gain from these shadowy deals with China and Thailand. The United States maintains economic sanctions regarding Burma, now mainly targeting listed individuals and entities, as well as any investment with the military. 22 The U.S. believes these “targets” obstruct political reform in Myanmar, abuse human rights, or propagate military trade with North Korea.23 The list contains a “who’s who” of the old military junta, and is relevant to the Myitsone Dam. Steve Law and his company, Asia World Company Ltd., are contracted to participate in construction of several hydro dams, including the volatile Myitsone.24 Asia World’s founder, Lo Hsing Han, (Steve Law’s father), as dubbed the “King of Opium” by U.S. drug enforcement authorities in the 1970’s. International Group of Engineers is an investor oin the Hatgyi dam, and has direct links to the junta.25

Environmental & Ecological Considerations.

The remaining and highly important substantive issues are the environmental and ecological considerations. The project promoters baldly proclaim that all approvals have been issued; yet, Myanmar citizens really do not know what was considered. The technical documentation has not been submitted for peer review. The contracts to construct and operate have not been submitted for public scrutiny. And there are credible suggestions that some documentation may have been altered. All of this, amid the backdrop of junta driven agreements, in which self-interests exists, mandates compliance with the newer, more stringent environmental review requirements. The Report seems to support Myanmar’s right to conduct such a review. The notion of an iterative process is commendable, because it allows each step of any process to be reviewed, approved or rejected. Iterative review has become the norm in river issues, as river matters are extremely complex even without the socio-cultural considerations. The Report soundly points out sediment transport and mobility, river hydraulics, basin characteristics storage models, and ecological models (among other items) are all reasonable requirements.26

UN Conventions

The Report’s authors totally ignore existing UN Conventions on this topic. This is a peculiar misstep that disregards valuable, international norms directly applicable to the dam situations. Among the relevant Conventions is the Convention on the Law of Non- Navigational Uses of International Watercourses (1997) (“Transboundary Convention), which governs a system of surface and connected groundwaters in transboundary context. The Transboundary Convention is voluntary. It calls for the equitable and reasonable use of common waters among sovereign territories. The factors relevant to equitable and reasonable utilization are listed.27 The Convention imposes an obligation to eliminate or mitigate harm caused by use, and to prevent or mitigate pollution. There are also Model Provisions on Transboundary Groundwaters. Most of the detail necessary to arrive at harm and impact assessment and mitigation in the conceptual model are provided in the Conventions. Because these Conventions establish international norms, a full analysis of the various Conventions should be a part of the process.

Summary

The Report is to be commended for its efforts to establish a conceptual framework for dam planning. The Report emphasizes the need for stakeholder input, encouraging an inclusive approach. The Report, however, starts with the assumption that dams must be built. Although encouraging full stakeholder participation, the Report subtly employs a commercial bias. It further assumes that the dams, when built, will solve Myanmar’s electrical deficiencies. This is not at all established and is a critical analysis that must be addressed before considering imposing burdens on the citizens.

Myanmar must invest time and engage experienced and ethical consultants to assist in the suggested model design. Only after deliberate, transparent consideration, will good decisions be made for the betterment of the Myanmar people.

Paul Bohannon (c) 2017
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1 Paul M. Bohannon is a lawyer in Houston, Texas. He has spent over 40 years working with environmental agencies throughout the United States and some foreign countries. He received his B.A. in Political Science from Oklahoma State University in 1972 with honors, and his J.D. Law Degree from Southern Methodist University Dedman School of Law in 1975, graduating Order of the Coif (top 10%). His practical experience includes multiple river and harbor environmental issues, oil, gas, pipeline, and mining issues. He has successfully defended and prosecuted many environmentally-related cases in the U.S. judicial system, and has assisted in over 100 administrative rulemakings. He also is licensed before the United States Supreme Court. Mr. Bohannon worked in Mongolia resolving citizen issues regarding mining practices. He is familiar with the legal aspects of sediment mobility, contaminant transport, river hydraulics, computer modeling and best practices in water management as well as citizen participation issues.
2 See Report, p. 6.
3 See Report, p. 6. “Myanmar’s new democratic government now has to make important choices about hydropower management and development and it has indicated that it will emphasize sustainable energy.”
4 See Report, p. 17.
5 See Union of Myanmar Constitution, Chapter 20.(b) (“Constitution”). “The Defence Services has the right to independently administer and adjudicate all affairs of the armed forces.”; Constitution, Chapter 60.(b)(iii) (entitled to elect one of three Vice- Presidents); Constitution, Chapter 109.(b) (Pyithu Hluttaw shall consist of 25% nominated by the military; The Irrawaddy, “Dateline Irrawaddy: The Constitution Has Made Two Lions Live Together in a Cave,” (May 14, 2016) [Interview of Ko Ko Gyi]; Myanmar Times, “Military Protests But Parliament Passes State Counsellor Bill,” (April 5, 2016).
6 See The Irrawaddy, “China to Push Burma’s New Government Stalled Myitsone Dam,” (March 18, 2016); The Nation (Thailand), “Chinese Dam Firm Lobbies Kachin Media,” (April 24, 2014); Myanmar/Burma Forum, “Thai Govt Urges Burma to Speed Up Tasang Dam Project,” (October 9, 2013)
7 See Report, p. 31.
8 Myanmar Times, “NLD Under Pressure to Scrap Hydropower Projects,” (March 15, 2016).
9 See Report, p. 4 (“Only one-third of the population has access to electricity and lack of power constrains efforts to overcome poverty.”); Ministry of Electric Power, The Government of the Republic of the Union of Myanmar, JICA Tokyo International Center Energy Policy Training Program in Japan, “Country Presentation of Myanmar,” (June 23-July 13, 2013).
10 See World Bank Group, “Doing Business 2010, Going Beyond Efficiency – Economy Profile Myanmar,” p. 30-35.
11 See Report, p. 28.
12 See Report, p.
13 See Report, Chapter 5, p. 45.
14 See Report, p. 54.
15 See Report, p. 23.
16 Some of these stakeholders are acknowledged later in the Report, p. 34.
17 See Report, p. 7.
18 Flood control is distinguished from reservoir management. Reservoir management is designed to assure water retention, thereby preventing inundation beyond the design limits. Flood control typically means the use of standard operating procedures to minimize risk to operational equipment, industrial operations, and developments along the inflow and outflow routes under standard operating conditions.
19 See Report, p. 6.
20 See Report, p. 9, 45.
21 Karen Rivers Watch, “Thousands of Karens and KNU officials raised their concerns over the challenges that the Salween Dams pose to build a long lasting peace,” presented at the International Day of Action for Rivers and Against Dams (March 14, 2016).
22 See United States Office of Foreign Assets Control, U.S. Department of the Treasury. “Unless otherwise authorized or exempt, transactions by U.S. persons, or in or involving the United States, are prohibited if they involve transferring, paying, exporting, withdrawing, or otherwise dealing in the property or interests in property of an entity or individual listed on the SDN List. The property and interests in property of an entity that is 50 percent or more owned, whether individually or in the aggregate, directly or indirectly, by one or more blocked persons are also blocked, regardless of whether the entity itself is listed on the SDN list.” As late as May 2016, the U.S. further eased these sanctions, particularly with respect to select banking institutions. See 31 F.R. part 537 (May 18, 2016).
23 See Embassy of the United States, Rangoon – Burma, “U.S. – Burma Policy, Sanctions on Entities and Persons in Burma,” at http://burma.usembassy.gov/burma_sanctions.html.
24 Asia Times Online, Brian McCartan “On the march to Do Business in Myanmar,”(August 26, 2009).
25 Aung Thaung is the father of Nay Aung, owner of International Group of Engineers (IGE), is an investor in the Hatgyi dam – a controversial mega-dam proposal by Thailand. Aung Thaung is or was the central advisor for Myanmar’s Union Solidarity and Development Party (military).
26 See Report, p. 37-38.
27 (a) Geographic, hydrographic, hydrologic, climatic, ecological and other natural characters; (b) Social and economic needs of watercourse states involved; (c) Population dependent on watercourse; (d) Effects of uses of watercourse in one state vs. other states; (e) Existing and potential uses of watercourses; (f) Conservation, protection, development and economy of use, and costs of measures taken to that effect.

Managing the CED With Three Essential Attitudes

All executives attempt to avoid CEDs – career ending decisions. What most don’t realize is that many decisions other than the dramatic ones can result in a CED. Our solution to CED management is simple, and can be stated in three words: Integrity, Dignity, and Humility. Should you or your staff fail at implementation of any of these three words, your CED risk escalates. Read on, and as always, give us your thoughts!

People forgive those who make honest mistakes. They also forgive those who make poor decisions, provided management is forthright in addressing the situation. People don’t forgive arrogance. Institutional memories are long – as indeed they should be – when integrity is questioned. And finally, how management projects itself can affect the success of your decisions.

Whether the environment in which your crisis is presented hails in the employment, product safety, contractual, regulatory, or environmental context, the escalation of a crisis to a CED likely depends upon your implementation of our three principles: Integrity, Dignity and Humility. Those who have heard me speak know that these three tenants are so very important, both for management and for the institutional fiber of your company.

So many times management must atone for the field and middle management actions. By imbuing into your corporate fiber these three attitudes, you mitigate the risk of upflow – a crisis erupting at a lower level surfacing into management.

So, lets start with a review of these principles.

Integrity is either the glitter or the foul dust that creates your aura. We all claim the highest of integrity. Yet, in the midst of a crisis, lines tend to blur – and if they don’t blur, someone is always trying to make them look hazy to your detriment. So, the best policy is to insist on the utmost of integrity in all matters. Yes, there may be more than one legitimate approach. Some might question your decision in that regard, yet if the decision is made upon solid, articulable foundation, you can and should make those decisions.

More important is how you implement integrity. If you try to polish the apple, it will not look good. For example, companies may include in their securities documentation statements relating to the internal standards the company imposes on itself. Typically, these are self-laudatory goals. And those goals, expressed as standards, then become the benchmark for critical review.  My experience is that companies almost NEVER have a perfect compliance record with these goals. And hence, those goals become a critical part to any adverse litigation or publicity claims. I tend to ask my clients, “Would you feel more comfortable today if you had said,  “The company seeks to comply …”

Without too much analysis, suffice it to say that a company must have a strong sense of integrity, based upon company productivity goals and a solid, articulable basis. Integrity means honesty. That simple. Integrity is not bragging, nor the recitation of esteemed goals. It simply means honesty.

Dignity is Something We All Deserve. Dignity is a two- way attitude: corporate dignity and stakeholder dignity. Corporate dignity can be broken down into the corporate profile and departmental and specific employee dignity. Those who are treated with respect tend to support the corporate culture in times of crisis.

Stakeholder dignity is just as simple. You may disagree with a stakeholder’s claim, but you can and must publicly respect it. The public, including the regulatory agencies, will value your positions more if you maintain dignity for all involved.

Juries don’t seem to like arrogance, and the media feeds on it.  If you don’t want the media to publish one of those mug shot poses (and they can extract one from any video of you, guaranteed), then avoid arrogance.

Humility is an Extension of Dignity. Humility is not being apologetic. Nor does humility mean you must suffer indignant accusations. Rather, humility means responding with sincerity. If you must respond to media inquiries about data that is not yet confirmed, then explain with some detail the reason behind the need for confirmation.

So How Does My Company Assure These Principles are Implemented During a Crisis?  

In summary, your CED moments can be materially improved if you apply integrity, dignity, and humility in your dealings internally and externally. The challenge is assuring your corporate respect for these attributes throughout your ranks. And also, in times of crisis, you must have someone evaluating these attributes at all times.

Enviro-Crisis offers this service. Our years of industry experience coupled with severe crisis response and post-crisis cause investigations enables us to test integrity at all levels without creating an atmosphere of challenge. Any assessment is confidential, as management should decide how to react if we sense an issue exists. By having an independent assessment being made throughout your crisis, management secures another layer of protection against claims of foul or improper management decisions.

 

Paul Bohannon (c) 2016-2017
More about Enviro-Crisis Management

MSG Is Not for Chinese Food!


 

 

The newest fandangle in transparency is the use of MSG. Now, I was confused when I first saw folks using that acronym. And, I heard MSG was not good for you, so why are we required to include it in our lives? Well, it turns out that MSG in the transparency context is short for “Multi-Stakeholder Group.” A multi-stakeholder group is a group of stakeholders, meaning folks interested in the topic of concern who could be affected by the outcome.

Many programs advanced by the United Nations, World Bank and other such institutions require MSGs to participate in the planning stages of a program. The MSG serves multiple purposes. A primary purpose is to motivate support for the targeted program. Another purpose is to broadcast a new program, usually imposed by law, that might “regulate” some local industries. Underlying these purposes is the notion of transparency. Educate the citizens before regulating them. Get them to buy into the program. We in the U.S.A. have utilized stakeholder groups periodically. But developing countries  traditionally governed by juntas or dictatorships have not typically sought citizen participation. Therefore, the developing countries need help in establishing stakeholder participation. It may be surprising, but many countries don’t yet get the idea. I suppose the door began opening with internationally sponsored topical symposiums. These symposiums frequently include a workshop component in which the participants seek a consensus view on the topic of concern.

Identification of stakeholders is the initial step of the MSG process. Essentially, you are looking for interested citizens and persons that may be affected by the targeted program. In my experience, developing countries tend to have a narrow scope vision in identifying stakeholders. They need to be encouraged to broaden their views. One group I consistently find omitted is academicians. Their omission may be a result of the governments’ efforts to minimize their standing in society. Almost as frequently, I find labor representatives omitted from the groups. Those seeking to help these countries through a program development should endeavor to include all affected and knowledgeable groups. While academics may not affected by a program, they may still have valuable knowledge. When I worked in Mongolia, we were addressing mining issues, including geologic issues. To my surprise, no one bothered to include academics — until I pushed them.

A third possible stakeholder group that rarely appears is any association or body responsible for ethical considerations. In developing countries, the culture has yet to fully blossom and support well balanced ethical programs. Its not that the citizens don’t want ethical programs, but rather they have not been exposed to them and perhaps even doubt that the government would support such considerations.

I will try to visit more about stakeholder groups in the near future.

Paul Bohannon (c) 2017

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Case Study #4: Know Your Dirty Laundry!

Companies make money because they can undertake a risk. They hold their value because they manage that risk. What happens when they don’t?

A major integrated oil company held vaulted honors for environmental compliance. With a massive environmental department, pride got in the way of the facts.

No matter how centralized your compliance program is, it still depends upon the local field personnel to do what they are asked to do. In this case, the instructions were to retain environmentally related documents for a long time. Then along came a crisis – a series of releases that caused groundwater problems.

Litigation ensued.

A disgruntled independent contractor saw the matter on TV. He anonymously called the plaintiff, advising that the company had buried documents on a pipeline easement – about 69’ below earth surface.

The plaintiff – a smaller publicly traded company, decided to check it out. As they neared 69’, burlap sacks began to appear. And then, better than black gold, scores of moldy burlap sacks full of environmental documents were hauled to the surface. The defendant company expressed shock and dismay! And then the grind began. The plaintiff company began sifting through the documents. The bags and their contents were moldy in a disgusting way. Special ventilator fans were brought in. Then the lawyers and legal assistants and company personnel donned white tyvek suits with hoods, gloves, booties, and masks. Each document was laboriously inspected, some were scanned. And of course, the media attended.

The international environmentalist groups screamed with pleasure, crying that the big international oil company wasn’t so nice after all. Media stories appeared from Bulgaria to London to Gotebo, Oklahoma. The SEC launched an investigation of the defendant’s securities compliance. Environmental agencies that once knighted the company, suddenly began distancing themselves.

The question was asked: “Why did you do it?” The defendant company’s response: “We were just storing the documents (that related to the litigation) there!” More howls – this time of laughter.

So what transparency lessons do we have? First, don’t make a truly disgraceful situation worse by trying to justify it. Second, always keep a back door open on your public positions in a crisis. If you are responding to a critical crisis, the last thing you want is to admit total shock and dismay about what had happened on something you claimed you were managing.

Paul Bohannon (c) 2015

Case Study 3 – BedfellowsCase Study 5 – Plain Sight
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Crisis Team Meetings

Perhaps this is a simple discussion of group dynamics, yet improper management of the crisis team will likely cause crisis failure and possibly criminal exposures. Crisis management is an art — balancing transparency with the need for legal planning.

Nikita had a style of his own. Pounding your shoe probably won’t help your crisis.

Previously we discussed the back-door team. Recall that it included a diverse group of disciplines, such as environmental, operations, risk, personnel, legal, media and others. Yet, having a solid team can still result in failure and embarrassment to your company.

The way the team is managed ultimately drives your success. Whether you are confronting a corporate or government crisis, our organizational detail will help you. We intend these suggestions to provide transparency as a foundation for your integrity.

1. Command Central.

Your company management must designate a single individual to chair the back-door team. This leader must be present at all meetings. The leader should be from corporate executive ranks, not from the local plant management. The problem most likely happened as a result of an operational error or circumstance, so those involved in the occurrence (i.e., local plant), would not carry the level of credibility that upper management offers to potentially adverse stakeholders.

That said, the crisis management team leader is simply that: the leader is not necessarily the company’s public face in delivering the outreach messages. The outreach role should be separated from the team leader role, as this creates a stepped level of accountability. Ultimately, it is the response team’s credibility that must be protected for successful implementation. Allowing others to deal with potentially adverse positions enables a business-like ability to plan and conduct necessary what-if scenarios in confidence.

2. Keep All Team Participants Informed.

Critical company crises always become public –there are no exceptions to this rule. Too often, corporate executives attempt to manage a crisis on a “need-to-know” basis. This can result in stakeholders crying foul. Balancing this statement is that your company, to the extent possible, must control the release of information to the public. We will visit more on that in a later discussion.

It is imperative to keep all team members informed of all developments. Each team member should understand that the response measures are segmented by discipline. However, risk may wish to establish a meeting with its insurer to discuss claims, while business is still working to establish its down-time claim. Plant personnel may feel a compelling need to discuss the matter in a local plant meeting, while HR is studying employee retention issues. Many offsetting issues arise in crisis response. With full participation of all disciplines, those offsetting circumstances can be identified early, allowing a smoother approach.

The simple way to do this is for all disciplines to attend every team meeting. The leader must moderate discussions, as each discipline really handles its own problems (with the final OK from top management). The meeting purpose is to inform and to discuss obstacles. As your crisis response evolves, things settle down a bit. When this happens, very small sub-groups (2-4 persons) may be delegated very specific tasks to accomplish, resulting in limited, focused meeting without everyone participating. As that occurs, typically the frequency of the team meetings reduces.

High profile problems, in particular, evolve over time as to both cause and effect. Early position statements or press releases must be very careful not to compromise the company once facts are fully determined.

Critical failure investigations evolve. Frequently a simple problem becomes more complex when deeper investigation is conducted. Company personnel often look for cause, wrongly assuming the company was at fault. Conclusions based upon data that has not yet been validated is a necessary analytical step; however, those conclusion may change upon validation result.

Documenting preliminary views can give adversaries a false platform to assail the company. Those memos may be subject to judicial or administrative discovery. In a later discussion I will address the attorney client implications. Suffice it to say that if you need to document your thoughts, dictate it to legal counsel.

As your team meetings progress, minutes must be kept, but they should be very generic in text. The minutes should reflect your procedural diligence and willingness to comply. They do not need to reflect preliminary views or interpretations.

5. Chairing the Team Meeting.

Remember, the purpose of team meetings is to inform all participants of developments so they can make wise decisions in their respective disciplines of the crisis management. Each discipline having current information should report the status. Questions should be asked, as necessary. The team meeting is not the place to solve vexing questions. Discussions should be relatively limited to identifying obstacles and advising of response progress.

Paul Bohannon (c) 2016-2017

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Related Back Door Players

Key Steps & Stumbles in Crisis Management

Major adverse events can be catastrophic to a company’s reputation and viability. These points apply equally to commercial and governmental events. This discussion focuses on actions that can either positively or negatively affect the perception of transparency – and similarly affecting your problem’s outcome – and perhaps your long term status.

People frequently pivot in reaction to these practical considerations. Without question, the best advice is to plan ahead and be prepared. Developing the habit of working cooperatively and openly with the surrounding community will help immensely in the event a difficult situation arises later.

The discussion points that follow are primarily useful in the very early stages, when a critical problem first arises. First, we offer our “Top 10 Do List.” We designed each of these steps are to preserve trust within the affected community while ultimately mitigating your potential risk.

1. Comply With All Notification And Other Legal Requirements.
Compliance with all notification and legal requirements is critical to maintaining control. Even an inadvertent stumble with legal requirements after the event can raise the specter of willful or gross neglect and deception. In the same vein, it is very important to keep any required oversight officials involved in all decisions and field efforts. Undertaking any field measures without oversight may violate legal requirements, and certainly forfeits an opportunity to validate efforts to the public. Be sure to consider all emergency response plans.

2. Establish An Open Line Of Communication With Clearly Defined Contact Persons.
Communication is essential. You should have your communication plan in place long before anything adverse happens. Identify necessary decision-makers, communicators and contact methodologies. Insist that other employees or contractors comply with the communication plan and make sure the plan is updated regularly. In dealing with local citizens, it is better to assign the initial communication task to a responsible plant-level person — someone known in the community. Save your corporate officers for critical moments.

3. Provide Immediate Environmental Response Measures, Without Regard To Fault Or Allocation.
In the early stages of response, protection of public concerns should be paramount. Immediate, measured responses should be implemented, taking into consideration legal and practical considerations. If field measures require high-profile actions, visit with the neighbors and explain the risks and why the neighbors need not be concerned. We once had a case in which the agency sent a team to sample an area that included a kids’ playground.

4. Assess The Immediate Impact On Nearby Population And Provide Interim, Substitute Services For Those Affected.
Anticipate and identify potential adverse impacts. Discuss these with the neighbors and officials. You will achieve a level of credibility that will assist you when difficult decisions have to be made.

5. Provide open access to information.
Forget about technical data validation. Citizens want and need to know information as it is develops. You can qualify the data disclosures, if necessary. Consider immediate newsletters, websites, phone hot lines and other communication methods. In our experience, citizens who feel they are informed are less likely to support others who want to litigate.

6. Notify Insurance Carriers And Review Contractual Documentation For Potential Indemnification Protections.
Older indemnities frequently have more strict procedural requirements. Assign someone to review these arrangements and perform these tasks, which will continue perhaps until litigation is completed.

7. Be Realistic.
The goal is to mitigate risks. Providing frank and truthful information will build trust with the affected citizens. If citizens feel misled, they will be more inclined to litigate or rebel.

8. Segregate Your Strategic Consultants From Your Expert Witnesses.
Even though the paramount concern is the human health and the public, protecting the company or government from inevitable litigation or adverse publicity is still a legitimate concern. The response team should consist of field implementation consultants and a separate set of strategic consultants. Use the strategic consultants to vet response measures and even communication efforts.

9. Preserve Evidence In A Judicially Acceptable Way And Place Litigation Holds Early.
Be sure the field efforts are conducted with proper quality control protocols. You may only have one chance to evaluate the technical or root causational conditions. Place early litigation holds (remember, hiding documents in the government context is a CED). This is not a simple task, with so many employees, consultants and contractors involved.

10. If Immediate, Emergency Compensation Is Appropriate, Offer It On An Unconditional, “You Can Sue Me Later” Basis.
This one is for corporations. Many companies have a hard time with this advice. Let’s face it. If you want any type of release, it looks like you are trying to sneak out of town on the cheap. Make your proposal as compensation for a specific purpose (i.e., out-of-pocket living expenses).
Next, we provide our “Top 10 Don’t List.” Our experience indicates that tripping up on this list usually impairs our client’s credibility with the affected community, and perhaps, the regulatory agencies.
1. Don’t Put Lawyers In The Forefront.
This is perhaps the most frequent and worst mistake. Putting your lawyer in the forefront creates the public perception that the company has something to hide.

2. Don’t Deny Liability.
The best thing your public spokeperson or company representative can say is that the company is cooperating with the authorities to investigate the cause, and that in the meantime, the paramount concern is for the protection of human health and the public interest. If you deny liability too soon, it creates the impression of being too quick to judgment.

3. Don’t Blame Other People.
Let the facts do the talking. Administrative agencies and even the public (i.e., press) are not hesitant to point the finger if they have sufficient facts. Placing blame too early can jeopardize your own credibility.

4. Don’t Offer Compensation Or Other Benefits To Anyone Not Actually Affected.
While you are encouraged to provide interim compensation benefits, specify the criteria required to receive the benefit. Paying everyone simply invites litigation claims.

5. Don’t Use Your Corporate President or Lead Government Official Too Early.
The usual plaintiff ploy is to trap the corporate president into saying something that can be attacked. Due to developing investigations, early statements may need to be modified or outright changed. Save the high-level representative until the facts become more clear, or until a message needs to be delivered that requires a high-level presence.

6. Don’t Penny-Pinch.
Budgeting is a necessary step in many response efforts. Evidencing a concern over a few hundred dollars can really pale when a jury is asked, for example, “Would you let your daughter drink this stuff?”

7. Don’t Let People Go Home At 5 O’clock.
Somebody is worried, and while they may be at home, they probably aren’t going to bed. Do not change direct contact, responsible employees. The affected people are there all the time, so your employee or response contact should be there as well. As the project matures, these demands will lessen.

8. Don’t Provide Factual Information Without Sufficient Basis.
It is important to provide information as quickly as possible to affected citizens and the agencies. Both should receive information at or about the same time. Because these investigations will develop over time, information will sometimes be incorrect. Do your best to minimize incorrect information while expediting information flow. Remember, you can always qualify your information with something like, “While still under investigation, we believe …”

9. Don’t Discount The Importance Of Persons, Critters Or Location.
It is a given in today’s society that all people deserve equal treatment. However, it is easy to disregard critters in evaluating a field situation. Comments or actions evidencing a lack of respect for the affected land are dangerous. People identify with their property and feel slighted when you conclude their property does not warrant as much attention as other property.

10. Don’t Assume The Matter Ends With Remediation And Liability Litigation.
If the matter is of national or regional concern, it is possible that there would be criminal enforcement. If there are documents necessary for your ongoing business operations involved in the causal conditions, you may wish to copy them so that you have them as a reference in the event the originals are taken by the authorities. When the FBI arrives, it will take files and leave you nothing.

In summary, advance preparation for emergencies and efforts toward being a good neighbor and a solid corporate citizen are important y. Compliance with legal requirements at all points in the spectrum is critical to a successful outcome in the event that an emergency occurs. Practical considerations can equally affect the outcome of your efforts.

Paul Bohannon © 2014-2017

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The NGO Roads Are Littered With Failures Along the Path to Democracy

Emerging democracies are full of potential leaders and issues. Even so, the road to success in these countries are littered with failures. The lack of available economic resources to support these grass-roots efforts is restrictive, making the failures even more significant.

An “NGO” is a non-governmental organization. It is kind of like the American version of the Junior League – a group of interested citizens that come together to accomplish some defined goals. Typically, the members are educated. Their funding comes from foundations, grants, and even governmental sources. And, the membership usually have a friendship bonding them in social circles as well. In the developing nations arena, international NGOs provide a large piece of the economic and leadership support for the local NGOs. The international NGOs may sponsor schools, shelters, and almost always provide educational events for community leaders. Those community leaders frequently are members and leader of the NGOs. Typically, the international NGOs are well-heeled, with paid staff.

Why, then, are the roadways littered with local NGO failures? It all comes back to the way the NGO troops attack their goals. “Emerging democracies” is pivotal here. Those countries are loaded with uncertainties, conflicting interests and goals, with plenty of folks waving the flag of democracy.

About those flag-wavers. They are the fount of the democracies. They are the troops that made the democracy possible. And, they tend to trip over each other along the roads to success.
In most cases, the flag wavers are achievers – frequently over-achievers (the kind you like to hire). They are united by a single vision – establishing a democracy, a free society.

Let’s think back to the 1776 era for a moment. In those days, “democracy” was not a favored form of government even in the Colonies. Back then, a democracy meant everyone had a voice and everyone had a vote – an equal vote. The Colonists shuddered at such an approach, because they rightly felt that equal citizen votes would be laborious and chaotic. Instead, the Colonists opted for a modified form of democratic government – a republic. The republic consisted of representative governments. The democratic voting was at the local level and the elected representatives then voted on a democratic basis. This, then, is where our American Colonists succeeded while today’s emerging democracies are frequently failing their goals.

I suppose it comes down to group dynamics. The fervent vision overwhelms the practical needs. The local NGOs find they have little swat in their governments, even though they may have very specific ears that listen to each one. So, they join hands, forming coalitions of local NGOs. This strengthens their voices and in fact typically elevates their issues to the government’s forefronts. Their ardent belief in democracy leads them to require unanimity in votes and purposes.

And then, they stumble.

You see, when you join as many as 30 or 40 local NGOs together, they each have leaders and achievers. They also have to earn a living. So, critical decisions take time – too much time. Too many questions are asked. The unanimity just doesn’t happen, or it happens after the door has closed.

Paul Bohannon © 2017

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Case Study #3: Strange Bedfellows!

Environmental crises can cause parties that have been historical adversaries to become co-advocates. The lesson here is never close your eyes to opportunities.

EPA was pressing very hard for an incineration remedy in an upland site cleanup, adjacent to a large river. Before EPA could get to that point, it had to comply with the NCP requirements. The RIFS was not even completed. Suddenly, EPA declared it was going to use a novel approach (which happened to avoid the due process steps protected by the NCP). EPA’s announced intention was to locate an incinerator somewhere in the host community, but not on the problem site since it was not large enough.

While the company initially contemplated litigation maneuvers, it reluctantly reached out to the influential river advocates. Much to the company’s surprise, even though the river advocates wanted aggressive response measures, they did not trust an incinerator in their midst. A bond developed between these two strange bedfellows. EPA ultimately relented after receiving the combined pressure from the strange bedfellows.

And, this tentative trust evolved into a longer-term relationship that benefited the company as well as the advocates.

Paul Bohannon (c) 2016

Case Study 2 – FBICase Study 4 – Dirty Laundry

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Case Study #2: Here Comes the FBI!

Chemical manufacturer in the mid-Atlantic region manufactured product under a regulatory exemption. Absent the exemption, the company would have been recycling hazardous wastes. The company’s home office was in another geographic region of the country. The company received an inquiry from US EPA regarding an unrelated facility — one neither owned nor operated by the company. The response was left to local management with virtually no home-office oversight.

A while later, EPA swooped in on the plant unannounced, with FBI helicopters overhead. EPA and FBI entered the plant operations office, sealed all computers and file cabinets. EPA gave the company four hours to identify all documents necessary for continued plant operations. Upon expiration of that time, EPA removed the file cabinets and computers to the Atlanta Regional Office — which was not the regional office assigned to the enforcement matter. Of course, EPA did not disclose immediately that the materials were removed to Atlanta. EPA then advised company management that it was under investigation for criminal violations of the RCRA recycling provisions.

Corporate management initiated immediate crisis management steps.

1. First, the company hired an independent environmental crisis manager.

2. Next, the company immediately sent an audit team to investigate the documented source of its feedstock. Because the records had vaporized into EPA’s possession, this was a daunting task. The audit team commenced with personnel interviews, then proceeded to contact transport vendors, seeking manifests and bills of ladings.

3. At the same time, the company retained local criminal counsel, who reported to the independent environmental crisis manager. Criminal counsel met with local employees — all of them, explaining the risks of deceit in responding to the company investigation. After that, the criminal counsel and the independent environmental crisis manager collectively visited with various employees to identify important players.

4. All of the above took place within hours after EPA’s departure.

5. Meanwhile, the Company began making computer backups and copying all materials in file cabinets at the home office, as well as at any other facilities owned by the Company.

6. Interviews of home office management were conducted to determine whether there was any knowledge of criminal exposure. After confirming a lack of information of illegal conduct, the management were asked to provide a sworn statement to that effect.

7. Fairly quickly, the company auditors identified improper deliveries of feedstock materials. Specifically, the exemption was based upon the source of the material, so materials coming from unapproved sources were deemed hazardous waste regulated materials. Once the auditors identified this issue, then they developed information identifying the internal culprit: the plant manager.

8. Apparently, the plant manager had been receiving illegal feedstock materials, authorizing company payments on standard prices, and receiving monetary kickbacks from the “vendor.”

9. The independent, environmental crisis manager re-verified lack of information on management’s behalf.

10. A discussion then ensued over company defense strategy. Independent criminal counsel were engaged for the plant manager and for any employee who had any relevant information related to the activity. Further communications with these employees were directed through the newly engaged criminal counsel.

11. Having now established that criminal activity had taken place, the company focused on protecting its shareholders. EPA knew only that things didn’t look right, but did not know the actor’s identity, within the company. Thus, at that moment the company was the prime target for criminal enforcement.

12. After further inquiry, the company concluded that the principal target was the sending company, as it apparently had been engaged in this weave of criminal activity with other companies as well.

13. The company determined that it had to honestly present the information it had developed to EPA and the FBI. A confidential presentation was developed and presented to them. This document identified the plant manager, and provided evidence of the deliveries and kickbacks. The presentation also explained in detail the control procedures and how they had been circumvented.

14. At the very time the document was being presented to the EPA and FBI, they also notified employee criminal counsel.

15. After deliberation, EPA concluded that corporate management and the company were not players. They were not indicted. The plant manager went to jail on an extended basis, as well as the sending company and its management.

All of these activities were directed by the independent, environmental crisis manager. The lessons included (i) honesty is the best policy, (ii) immediate response is imperative, (iii) shareholder protection is primary.

Paul Bohannon (c) 2016-2017

Case Study 1 – CigaretteCase Study 3 – Bedfellows

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Lawyers & Engineers: Watching the Purse-Strings …

Consultants can make the difference in confronting a difficult challenge. Yet, the recent adage that “everyone wants to be a millionaire” extends to lawyers and engineers alike. In a crisis, your task includes crisis response and managing your costs in doing so. Understanding their respective roles will help you chart the course through your crisis. Read on, and as always, we welcome your thoughts.

Technical matters, whether in litigation or simply before a regulatory body, can be complex and costly. Unfortunately, consulting lawyers and engineers alike are anxious for the billable hours that these matters represent.

It is very important for engineers and lawyers to work together for the client’s benefit. Should either stumble in this regard, the representation could similarly falter to the client’s great detriment. In this article, I will provide some insight on how the two professional disciplines should interact. The dominant message is that engineers must be careful to allow the lawyers to do the lawyering. Too frequently I have seen engineers who usurp much of the work, only to later discover they missed critical legal issues.

The Nature of the Engagement.

Technical engagements typically fall into one of four categories, frequently with overlap: (1) routine processing, such as permit applications, (2) litigation and supporting testimony, (3) non-testifying services in relation to litigation, and (4) transactional due diligence.

1. Routine processing typically sees the engineer taking the lead, coordinating closely with in-house personnel. In these matters, the role of the lawyer is to spot potential issues, and to double-check the engineer on regulatory requirements. When the engineer cannot resolve an issue through direct negotiations with the agency, the lawyer will take over the task. In this representation, the lawyer should carefully review the applicable regulations, require a summary of operations and environmentally affected operations, and prepare a detailed checklist of regulatory requirements. After receiving the summary, the lawyer should host a meeting with the engineer and the client to identify potential issues — both legal and pragmatic issues. Prior to processing the regulatory request, the lawyer should meet with the engineer and the client to confirm compliance with the checklist.

2. Litigation and Supporting Testimony. This type of engagement presents the most difficult working conditions. The specifics of how the engineer should maintain files and document work will be addressed in another paper. This paper is designed to provide the mile-high view. There are four segments to this particular representation.

3. Initial Engagement. Most lawyers and engineers do not spend adequate time on this stage, resulting in potential loss of privileges, confusion in the implementation of response plans, and strained relations due to improper charges. The client should provide a detailed scope of work (SOW) which has first been vetted by legal counsel. Counsel needs to assure that the SOW is properly parsed. Tasks should be in segments to assure tighter management. Counsel needs to assure that the client — not the counsel — oversee SOW implementation. By doing so, counsel will see that proper business personnel are approving all tasks, and hence all expenditures. Neither the lawyer nor the engineer needs client backlash when bills are submitted. Once the SOW is negotiated, counsel needs to verify that a client project manager is supervising all tasks. This insulates counsel from any mis-management claims.

4. Emergency Response. The client should host regular meetings of the engineering and legal firms. At the onset of the problem, these meetings should be daily. Because many plant problems involve maintenance and even business interruption, these meetings should continue daily throughout the declaration of emergency by the agency. Counsel should sit in with administrative agencies. The engineer should support the client’s lead with in house personnel. At this stage, the lawyer should be in a listening mode unless issues arise unforeseen by management. Most “lawyering” during preliminary emergency response should be conducted outside the presence of the agency. It is not well advised for the lawyer to be the company’s voice. Remember, any lawyer participating in the meetings could very well become a witness and hence, possibly disqualified from litigation representation. The engineering consultant should similarly be in a listening mode, while being prepared to offer views on response measures if asked by the in house personnel. The lawyer, client, and engineer should have conducted a vetting meeting before any administrative meetings. Under no circumstances should the lawyer or the consulting engineer speak to the media.

All media relations must be conducted through client representatives, usually the company PR person in the first instance. Also, the client’s upper level management should be kept out of the meetings, media presentations, and agency negotiations. Because environmental matters scientifically evolve and viewpoints change over time, management must not appear until the issues are defined. I will provide another posting on this aspect of emergency crisis control.

5. Litigation and Response Strategy. Litigation involves many tasks and demanding strategies. The lawyer should, obviously, take the lead here, but should allow the consultant substantial input on strategy. However, the consultant must not interfere with the litigation strategy. A competent environmental litigation lawyer will have a good sense of what needs to be accomplished. The engineer should prepare necessary base documentation, from tabular sampling control to charts and photos. The lawyer should give specific direction on what is needed. Also, the lawyer — not the engineer — should control any document control set, including sampling datasets. The lawyer should assure continuity in all field data, meaning, consistent well numbering, sampling codes, sampling depths by way of example.

6. Testimony. Again, this is complex issue deserving of another specific discussion. The engineer should understand that the lawyer cannot tell the engineer what to say or conclude. To do so would invalidate his testimony. The lawyer should explore with the engineer various avenues of testimony and counsel the engineer on the proposed direction of inquiry once the engineer has presented his views. The lawyer should also analyze the proposed exhibits and testimony for improvements. Finally, the lawyer should subject the engineer to vigorous testimony preparation.

Consulting Expert. A consulting expert is one who will not testify. Sometimes a shadow consultant is used to perform preliminary analysis, or to design strategy in the field and court room. The consulting expert will work directly with counsel, and will not communicate in any way with the testifying expert.

Perhaps this has provided some guidance. Speak up if you have other views or questions!

Paul Bohannon (c) 2016-2017

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Peer Review Pitfalls

Peer review in the consultant/legal context simply is a verification of present strategies and legal positions. In complex or high-risk decisions, peer review can serve an important role. Yet, the term is one that consultants/lawyers avoid. They are afraid of peer review. Why? I submit that it is in the implementation, not the act, of peer review that causes even the most esteemed of firms to quiver. I always find it curious that consultants and lawyers promote root cause investigations, as they are a form of peer review, while not engaging their own peer review at times.

Proper Implementation. I will embellish on this discussion in a future issue. House counsel and house consultants provide an obvious method of peer review – provided House has sufficient experience in the arena. Typically, House or its insurance company engages separate peer review. In doing so, the review usually involves coordination of lead and peer review provider. This is the first error. Peer review should have enough experience to perform confidentially, without upsetting lead counsel/consultants. The second, and grievous error, is that peer reviewers try to “earn a piece of the file.” They view peer review as marketing, which is wrong. Indeed, an unwritten code of performance exists for peer review services that disaffirms these economic grabs.

Paul Bohannon (c) 2015-2017

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The Role of Objective, Independent Crisis Management

Crisis management is intended to provide independent oversight of a coordinated team to accomplish a goal while mitigating any loss or expense to the company.

As we explore the role of independent, crisis management, it is important to distinguish between those who seek to provide full service advice from those who simply seek to provide oversight of those servicing your various crisis needs.

A crisis typically is an unexpected event that adversely affects human or corporate health in a way that involves substantial potential expense or public exposure to the company. When a crisis happens, most companies have good response steps and procedures in place. Some companies seek to handle the response measures in-house, others go to outside consulting firms, while others use a blend. Each has it own benefits and risks. Let’s spend a few minutes analyzing these.

1. Responding with In-House Personnel Only. Large, national or multi-national firms generally are the companies that implement exclusively with in-house personnel. In-house response personnel can provide measures at less cost while being subject to better budget control by the company itself. The company using in-house personnel operate with a measure of confidence that company guidelines and standards are consistently attained. Within companies, there are variations on this theme. Some use local plant personnel, trained either locally or by central, home-office personnel. Others have central swat teams. Central swat teams are better in that the response personnel are a bit more independent, at least from the local plant management. They also tend to be specialist — something local plant personnel who are serving dual operating and response duties cannot usually achieve. However, they are more expensive, as immediate response personnel must be at the plant facility — thereby duplicating training and immediate response measures.

There are some drawbacks to using in-house personnel only. The chief criticism is that in-house personnel are too close to the company and its profit line. Decisions can be influenced by bottom line concerns — a mistake roundly criticized by public stakeholders that can result in stiffer enforcement or even class action litigation. Using plant personnel only exacerbates the risk, as they are even more influenced by local operating concerns. Some tasks may extend house personnel beyond their comfort zone. The demands of crisis response frequently can sap available company resources away from productive operations. The company’s public image is at greater risk when in-house personnel are the responders.

Responding with Outside Consultants. Outside consultants bring skilled responders, as well as bench strength. They typically are somewhat local, providing more prompt response. They offer reliable advice when time is critical. Outside consultants provide greater credibility to a company whose image may be tarnished a bit as a result of the incident. Some tasks in fact require the seal of a registered, independent engineer.

On the downside, independent consultants are costly. It is difficult to budget them in times of crisis and, it is even more difficult to get outside consultants to adhere to budgets in times of crisis. While skilled, sometimes outside consultants are too controlling — they can tend to be inflexible. And all too often, outside consultants tend to move their best people to the newest job, so lack of consistent support is an issue.

Responding with a Blend. This is the most typical response method. Generally, it is not by design but sheerly results from the degree of in-house personnel available. The benefits of such an approach has been detailed in the above discussions. However, there are some additional pitfalls. The more frequent complaint is that consultants overstep their boundaries, seeking more of the gold-lined budget. The ramifications of this happening are greater than just budget squabbles. Consultants frequently seize legal aspects, and clients let them.

Why? Because consultants are cheaper than lawyers and further, because they are engineers or accountants. While engineers are supposed to understand the regulatory principles, they frequently do not see the big pictures. Engineers and accountants can be problem-focused, rather than project focused. Lawyers look for obstacles, engineers look for solutions. Another significant issue encountered when engineers usurp the lawyer’s role is that they may tend to blink at interpretations which barely pass the “smell test.” Lawyers tend to probe more deeply, asking questions of the engineers and forcing hard decisions.

The Missing Link in These Approaches. All of these staffing approaches are missing a common facet: the Gatekeeper. The Gatekeeper is someone who brings all of the disciplines together, questioning each and verifying an integrated approach. The disciplines includes:consultants (whether in-house or outside), lawyers (whether in-house or outside), trial counsel, operations personnel, emergency response personnel, local and home-office management, the general counsel’s office, house insurance personnel, insurance brokers, insurance company claims adjusters, and accountants.

We should discuss a few of these disciplines. First, the lawyers in relation to the general counsel. The general counsel is charged with overseeing all aspects of the company’s legal compliance. However, the general counsel usually delegates specific disciplines (i.e., environmental or contracting), reserving upper level corporate compliance to the general counsel. Crisis response measures make the way to the general counsel’s office by way of litigation report and securities compliance. The general counsel assures that the board of directors is informed.

The Conundrum. Companies tend to like predictability. They like to budget. Companies don’t like surprises. So, the general counsel may press consultants and lawyers for answers on an early basis. Yet, while they need these answers, at the same time the general counsel legitimately may not want a set of tracks regarding the answers. If a matter is not reasonably anticipated or not capable of reasonable estimation, or perhaps even a claim not yet threatened, then management may not want to bring such items into formal play yet. A compounding factor is that responding lawyers and consultants may not feel comfortable “guessing” at agency directions or expenses. This then frustrates the general counsel and possibly, home office management.

So, we have a conundrum: Management wants answers so it can anticipate budget and resource requirements, as well as securities compliance. On the other hand, management doesn’t want answers that trigger the need for more formal recognition before otherwise might be necessary.

The Two Basic Flaws. We have, therefore, identified two basic flaws in the environmental response strategies: (1) there is a tendency for responder relations to interfere with objective thinking, and (2) management needs early-predictability much like a plant needs an early-alarm system.

The Gatekeeper. The Gatekeeper, well vested with experience in all of the material disciplines (i.e., environmental, litigation, and securities compliance, as well as an understanding of the salient industry) resolves both of these issues. The Gatekeeper is charged with verifying tasks, the integrity of response measures and public filings, and providing experienced predictions to the general counsel. In essence, the Gatekeeper is a trouble shooter.

Paul Bohannon (c) 2015-2017

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In a client’s words …

“I would recommend Mr. Bohannon to any party presented with a crisis. He has an ability to get to the core of issues quickly, and has broad experience in addressing all facets of environmental issues, from public perception and relations, to courtroom strategy, from multi-national corporations to small regional clients. Mr. Bohannon has a unique ability to extract the utmost from experts, clients, and people with whom he is working. Mr. Bohannon listens to his clients and experts more than any other I have known.”
— Brittain Byerly

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Case Study #1 — “Don’t Light the Cigarette!”

Synopsis: Refined products upland terminaling facility suffered underground manifold leak of jet fuel. The invidious leak, small in ongoing proportion, continued over a long period of time. A residential subdivision was nearby. The leak was eventually discovered when a woman stepped into her bath, which was full of jet fuel rather than water. There were three community water wells servicing the subdivision. Two were adversely affected and had to be permanently shut-in. The area, a semi-arid climate, was entirely dependent on groundwater. Members of the subdivision filed suit.

Crisis Management Response. All regulatory notices were timely given. A plant employee was assigned as OSC for the plant. After consultation with upper level management as well as plant management, it was agreed that corporate executives would not participate as spokesmen. The company agreed upon an open-communication model. “Fence talks” were conducted, in which the local management — on very good community terms — would visit with the nearby residents, literally over their fence lines. The message was kept short and understandable. The company intended to provide regular information regarding the response measures. Further, with little delay the company, subject to reservation of rights, drilled, completed and piped to the residences a substitute water supply that was shown to provide more immediate water supply capacity, and a longer lifespan as well. As data developed, it was provided to the agency and generally discussed with the neighbors.

As the emergency subsided, the company implemented long term recovery measures. Media was managed successfully.

The Litigation. As a result of a well-implemented community response plan, which included a town hall opportunity, only a few of the residents actually sued the company. The case went to final bench decision in Federal Court. The Federal Judge found that the company had materially mitigated the injury to the landowners. Judgment in the amount of $3,000 for out-of-pocket sampling costs was entered. All other claims resulted in a take nothing judgment.

Critique. The successful crisis management points in this matter included a well-implemented community action program, reducing the number of original claimants. The prompt drilling, completion and delivery piping of a replacement well was vital to the Court’s finding.

Paul Bohannon (c) 2014-2017

Case Study 2 – FBI

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The Herd Approach

The accepted adage is that things done in a crisis mode are much more expensive than those performed in the ordinary course of business. I challenge the universal nature of this notion.

Crisis management is, in its basic form, a method of breaking down a problem. The crisis aspect is a budget stressor – time constraints tend to create a herd approach to problem solving. While crisis management requires the concentrated assistance of a group of people, proper function management can curtail the herds rushing to the feeding chain.

Strong executive direction should demand budget accountability. And budget accountability should take into consideration the revenue side of the picture. Every player needs to keep an eye on the way to manage production reductions, personnel usage, and customer maintenance. For example, my experience is that an environmental crisis can adversely affect revenues by as much as 20%.

So, when you have a crisis, don’t skimp on management attention. If you do, the consultants will enjoy a golden feeding bucket.

Paul Bohannon (c) 2016-2017

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Crisis Management: Who are the Back-Door Players?

Managing for profit is a tad different from managing a crisis…

Your company invested money in its product or service reputation. Your financial investment has extended to include employee relations and community perception. Each of those investments is challenged when an environmental crisis looms. You find yourself in a defensive mode. Yet, you can take charge. It takes experience, management attention and dedication, and an open-mind. So, read on, and give us your thoughts.

When describing a crisis team, most usually speak of the agencies, retained consultants, lawyers, and the company’s field implementation personnel. All of these are certainly players. Yet, there is a back door set of players that are every bit as important to a successful environmental crisis response.

If you have been adversely affected by an environmental crisis with respect to an asset, you must be ready to forge ahead with quick decisions, instilling confidence in the agency and public alike. Even your own personnel must believe you are responsible and effective. This happens only with intense and effective back-door management. Here is the team you will need:

1.   A strong, home office executive who calls the shots or at least, effectively delegates and confirms decisions to all.

2.  House legal counsel, who affords attorney client communications and assures all typical litigation steps and protections are followed.

3.  Corporate environmental (HSE) (or other affected departmental representative), who will assure that all steps are being properly taken in accordance with corporate environmental policies.

 4.  Corporate risk and insurance representative, who will attend to processing claims, working with your brokers and carriers. Multiple policies and deductibles can get complicated.

 5.  Corporate securities review (probably additional house counsel), which will consider the need for an 8-K and other reporting matters.

 6. Corporate Media Relations, who will coordinate press releases on

behalf of the company.

7.  Local plant manager, who will oversee communications and locally delegated tasks, as well as production issues.

 8.  Local plant environmental (HSE) (or other technical) representative, who usually maintains local regulatory enforcement relations.

 9.  Local plant human relations, who may handle local house communications among personnel and attend to confidentiality instructions on behalf of corporate.

 10.  Local legal counsel, who will have agency contacts and familiarity with the plant’s environmental compliance history.

 11.  Retained consultants, who will perform assigned tasks.

 12.  Independent crisis manager, who will coordinate with home office executive and general counsel to see that all matters are being considered on an integrated basis with integrity.

From this group, you will form a steering committee to meet daily until the emergency is resolved, as determined by the appropriate agency.

Paul Bohannon (c) 2015-2017