Ticketing a Safety Consultant

By Gary Finch

Many of you that deal with safety consultants recognize that we approach some areas with a different perspective.  We often advise our clients to never admit guilt to an inspector, even if it seems clear you are guilty.  We prefer you let lawyers and safety consultants review the facts first.  Nowhere is that difference in thinking more obvious than in the following true narrative that summarizes a routine traffic ticket issued to a professional safety consultant.

The citation:  He was cited for going 48 miles per hour in a 35-mph zone. The officer advised that he could either pay the fine or argue his case in court. He chose the latter. The rest of the story can be summed up as Compliance 101.

Discovery: He made a request for discovery, a legal term, asking for copies of the officer’s field notes, radar make and model number, equipment calibration records, and evidence of the officer’s training and qualifications. The information requested is similar to what safety professionals routinely create and obtain during our jobs.

Had these documents been solid he would have stopped his defense and paid the fine. The officer’s field notes, though, were not precise, equipment calibration was incomplete, and the officer only had on-the-job (no formal) training for use of the speed detecting radar. To support his defense he took pictures and measurements at the location where he was alleged to have been speeding.

Court:  In court the officer and the prosecutor representing the officer simply relied on the reading from the radar as proof the defendant had exceeded the posted speed limit. To them, operating state-of-the-art radar for speed detection was straight-forward and accurate. Modern equipment for measurement gives the appearance the equipment is infallible, but errors are still possible. Placing too much trust in measuring equipment is a problem even some safety professionals have, but not this gentlemen.

Qualifications: He presented his Certified Safety Professional credentials to the court to demonstrate his commitment to safety laws, including traffic safety. He wore a coat and tie to present a professional image. And he presented evidence to the court showing his experience and qualifications — his Certified Industrial Hygienist certificate and experience performing hundreds of calibrations for a variety of measurement devices.

Questioning: He questioned the officer, who stated he clocked him at 100 feet past the posted speed limit, and it took him at least ten seconds to catch up and pull the defendant over.  His field notes identified the address where the stop was made.  The defendant ran the math for the court.  If he was driving 48 MPH as the officer alleged, his vehicle would be traveling more than 70 feet per second. Based upon the officer’s testimony of how long it took him to pull the car over, it would be impossible for to have stopped where his field notes said.  He would have had to be driving much slower.

The officer also admitted that he did not calibrate the radar externally using a tuning fork before and after the defendant was ticketed.  He could not discount possible interferences — electrical surges, etc., to the radar during the time of its use. And he could not produce any evidence of formal training on measurement equipment calibration.

Verdict: The prosecutor offered to reduce the citation to a “brake failure,” thus avoiding any points being assessed to the defendant’s driving record. He declined the offer.  The prosecutor then asked the court for a continuance — come back to court at a later date to better address the defendant’s line of questioning.  He countered that would violate his due process to a speedy trial and the prosecutor should have been aware of this line of questioning based upon the documents that he requested during discovery. In short, the defendant won the case.

The parallels:  Compliance and safety litigation, unlike a traffic ticket, can and often does run into hundreds of thousands of dollars.  To defend your company in that type of case, exposure records (that must be maintained for 30 years), accident investigation reports, and field notes must be accurate.   How well you or your safety professional does this is often a determinate in whether the case is resolved or ends up in a mess.

 

Competent safety professionals are aware that some day, their notes may end up in court.  The customer may not understand why inspections and audits take time.  The consultant understands the broader ramifications. 

 

It is the same for credentials.  There is no guaranty that just because all Compliance Plus representatives are licensed funeral directors and embalmers that we do better work than someone who is not licensed.  But somewhere down the road, those credentials may sway the day in court.   It is also why KISS Compliance Network has a membership in the National Safety Council.  That may be its highest value. 

 

The lesson:  The person who administers your safety programs should have excellent recordkeeping skills.  It is essential that he or she have the time to develop and maintain the right kind of recordkeeping program.  A competent safety professional can guide the safety administrator in what needs to be done.  If you don’t have this in place, you are not in a position to contest OSHA citations or withstand potential safety litigation cases.