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Internal Environment
Objective Setting
Event Identification
Risk Assessment
Risk Response
Control Activities
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DEPARTMENT
SCHOOL
CAMPUS
SYSTEMWIDE
University of California
ERM Toolbox Training
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Information & Communication
Monitoring
http://www.ucop.edu/riskmgt/
Tuesday, March 8, 2011
10:00 – 11:00 AM
Remember to dial in so
you can hear the audio
portion of the webinar.
dial-in: 866-740-1260
access code 987-9821
Please put your phone
on mute to reduce
background noise during
the call.
Please DO NOT put your
phone on hold during the
call.
UNIVERSITYOFCALIFORNIA
Understanding Risk
Norman Hamill
Office of General Counsel
Office of the President
March 2011
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Understanding Risk
Common questions:
• What’s the point of investigating, evaluating and ranking our risks
when there are insufficient resources to reduce the risk? Doesn’t
this effort create or increase the University’s legal risk?
Response:
• Ignoring a known risk because a lack of resources isn’t consistent
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with our ethical standards and doesn’t protect against liability
• To the contrary, understanding risk represents reasonable action
that can actually reduce legal risk
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Statement of Ethical Values
http://www.ucop.edu/ucophome/coordrev/policy/Stmt_Stds_Ethics.pdf
Commitment to Integrity, Excellence, Accountability & Respect
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“Members of the University community are expected to exercise
responsibility appropriate to their position and delegated
authorities. They are responsible to each other, the University
and the University’s stakeholders both for their actions and their
decisions not to act.”
“University business is to be conducted in conformance with legal
requirements….”
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Legal Framework
Two theories of liability:
• Direct liability if The Regents fails to comply with a mandatory
duty imposed by statute
―Govt Code §835 – liability for injury caused by a dangerous
condition of public property
• Vicarious liability for the negligent acts or omissions of its
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employees
―Did the employee act as a reasonably prudent person under the
same or similar circumstances
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Legal Framework
Two important defenses:
• Dangerous condition: Did the University act reasonably in light of
the circumstances, including available resources
―Govt. Code 835.4 - The reasonableness of the action or inaction
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of the public entity shall be determined by taking into
consideration … the practicability and cost of protecting against
the risk of such injury.
• Discretionary immunity
―Govt. Code 820.6 – no liability if “the act or omission was the
result of the exercise of the discretion vested in [the
employee], whether or not such discretion be abused.
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Application
Two choices – take steps to understand the risk or
ignore the risk
Which choice better meets ethical obligations and is
consistent with the legal framework?
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Which choice better supports
reducing/managing/eliminating the risk when
resources are available?
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Application
Action or inaction and ethics:
• Integrity, excellence, accountability;
• Exercising responsibility
• Responsible … for their actions and their decisions not
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to act
• Conformance with legal requirements
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Application
Action or inaction and legal framework:
• Reasonableness standard for tort liability
• Doing nothing is not a defense
• Lack of resources can be a defense – if you don’t understand the
risk, how can you make a case that there were insufficient
resources
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• If you act reasonably, you won’t be negligent
• If you pass on information to a superior who has the discretion to
make the final decision, it improves the likelihood discretionary
immunity applies
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Dos and Don’ts
Do your part.
Do what you can.
Do your best with what you have.
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Don’t ignore a risk.
Don’t let legal risk prevent progress.
Don’t be afraid to call OPRS or OGC.
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