CHAPTER 14

Risk Management in Volunteer Involvement

Linda L. Graff, BSW, MA Linda Graff And Associates Inc.

All volunteer involvement generates risks. From the introduction of the very firstvolunteer and onward, risks are created that did not previously exist. The degree of risk varies from setting to setting, depending on variables such as the nature of volunteers’ work, the environment in which they perform their duties, the level of vulnerability of the people with whom volunteers work and/or to whom they have access, and the effectiveness of the management systems in place to guide and sup- port volunteers’ efforts.

Risk is defined as a potential loss or harm. The loss or harm may be direct or indirect; it may be personal or organizational; physical, financial, or reputational; it may be large or small, likely or remote. In a nonprofit, risks generally cluster into five categories:

& People (clients such as students, patients, victims, residents, consumers, partic- ipants, and patrons, volunteers, employees, the board, donors, the general public)

& Property (real, financial, intellectual, electronic) & Income (revenue streams, sales, grants, donations, fundraising) & Goodwill (public trust, reputation, stature in community, brand, ability to raise

funds and volunteers) & Liability (criminal, civil, vicarious)

Risks may cause harm to individuals or the organization itself, potentially threat- ening the organization’s future sustainability and mission accomplishment. Any of these may arise from the actions or inactions of volunteers. This discussion focuses largely on the management of risks related to direct service volunteers. There are risks associated with leadership and governance volunteers as well, but they tend to

323 Connors, T. D. (Ed.). (2011). The volunteer management handbook : Leadership strategies for success. John Wiley & Sons, Incorporated. Created from ashford-ebooks on 2022-05-13 10:25:00.

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be of a different nature and demand different management techniques. The overall process of risk management profiled in this chapter applies equally, however, to all types of volunteers, as well as to paid staff.

This chapter is a primer to risk management in connection with volunteer in- volvement, providing both general information on risk management and “how to” instructions. It merely scratches the surface of the topic, and readers are urged to investigate further and take advantage of the tools, tips, checklists, and worksheets that accompany a risk management model (For example, Graff, 2003).

Context for Risk Management

In this section, four important issues are explored as context for risk management and its application.

Risks arise from three broad directions:

1. From the coordination of volunteer involvement. How the director of volunteer resource management and agency administration organize involvement; how thoroughly volunteer management functions such as screening, training, and supervision, are carried out.

2. From the work itself. Some volunteers perform functions that are inherently risky, including for example, disaster relief, firefighting, back country rescue, political protesting, driving, and so on.

3. From volunteer behavior. When volunteers fail to meet performance standards, act inappropriately, exercise poor judgement, fail to make a correct decision, or in rare cases, cause intentional harm such as harassment, theft, violence, and abuse.

The general rule is that the more demanding the work, and/or the more direct the contact between the volunteer and the client, the greater the potential risk. Vol- unteers are often in positions of significant trust and significant risk. Note that volun- teer status is primarily a reflection of pay status. It does not necessarily indicate competence, professionalism, or reliability. Highly skilled volunteers are frequently recruited to work in their areas of expertise, performing to highest standards. There is no indication that accidents or harm occur to, or because of, volunteers any more than their paid staff counterparts. Risk may be exacerbated however, because the usual personnel, health and safety, and performance oversight functions that normally support paid staff involvement operate at a lower standard or are absent around volunteer involvement.

Not all volunteer roles involve significant risks. Simple chores performed by quali- fied individuals in controlled settings are typically not very risky at all, and risk man- agement in a formal sense may not be necessary. For example, volunteers who come into the organization to help with mailings, copying, collating, and so on are in a rela- tively low risk environment, engaged in a relatively low risk activity. In positions and service opportunities such as these, risk management might absorb very little in time or resources. Still, caution is advised, for significant risks may lurk in seemingly harm- less situations.

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Consider This: Simple Jobs and Sizable Risks

Several years back, I volunteered to do a shift at a fundraising carnival for a local agency, and was placed by the event coordinator in a booth selling lottery tickets. I received a one-minute orientation to the position—“Stand behind the counter in this little booth, here are the tickets, here is the cash box, see you later”—and was left on my own for the three-hour shift. It was a lovely summer evening, and the grounds swelled with hundreds of families and thousands of happy children, and I too was enjoying myself, watching the carnival-goers stream by my little booth. Ticket sales were brisk, and as my shift went on, I began to accumulate a sizable amount of money, all of it cash. There was nothing at my back but an unsecured tent flap standing be- tween me and those thousands of revellers who might decide to make a quick hit and instantly get lost in the crowd. I had no phone. I could not leave my booth as it was impossible to secure the many boxes of unsold tickets piled under the counter. I had no way to reach the coordinator, and no option but to sit out the rest of my shift. That was an important lesson about seemingly simple positions generating sizable risks.

Volunteers are more frequently being asked to perform work that is more com- plex, more sophisticated, and more responsible. While a few organizations have al- ways involved volunteers in risky activities such as volunteer firefighting, coaching children, and volunteer search and rescue operations, it is more recently that large numbers of nonprofits have begun to place large numbers of volunteers in direct-ser- vice work or other positions of ever-higher responsibility and trust. The likelihood of incidents, accidents, and claims has increased with this evolution (Herman, 2009), and the consequence of error is potentially large, if not catastrophic.

When organizations set out to consciously and deliberately look for risks related to volunteer involvement, they find them. Typically, lots of them. In fact, in new risk management initiatives and/or complex volunteer programs, many risks will be iden- tified. It can be daunting, even paralyzing.

To maintain perspective, keep in mind that life is full of risks. If a guarantee of zero risk were necessary, most people would never get out of bed, drive a car, board a plane, invest money, or allow children to leave the house. The mere presence of risks related to volunteer involvement should be neither the focus of attention nor a cause for alarm. What is important is how those risks are managed.

Risks must be identified and controlled, and the earlier in the volunteer involve- ment cycle, the better. The volunteer involvement cycle outlines the main functions, tasks and systems required in the construction of a volunteer program and in the ef- fective engagement and management of volunteers (Graff, 2005). Thorough identifi- cation of risks increases organizations’ capacity to manage risks appropriately.

All volunteer-engaging organizations including nonprofit, government and other public services and even private, for-profit companies (e.g., private nursing homes, medical clinics, corporate volunteer programs) have both a legal and a moral respon- sibility to attend to the safety and well-being of those they serve, those who work for them, and others who come into contact with their operations. As a result, risk management must be integrated into all volunteer program planning, systems, pro- cesses, and decision making. This applies broadly to all aspects of organizational ac- tivities, and includes leadership (e.g., committees, advisors, pro bono consultants) and governance (board) volunteers as well.

Context for Risk Management 325

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Consider This: Risks? What Risks?

A few years ago I was presenting a workshop on risk management at an international conference on volunteering. At the morning coffee break a participant approached me with a question. She was the manager of quite a large national volunteer program in the United States that linked adult volunteers with child participants. The primary program activity involved adult volunteers taking children camping, overnight. The workshop participant asked me if I thought it would be wise for her to set up some kind of screening protocol for her volunteers. She had, until that point, been placing volunteers with nothing more than a bit of demographic information about them, and a sense of where in the country they wanted to volunteer.

Risk Management Assumptions

It is prudent to assume the following principles of risk management:

& There are no absolutes and no guarantees in risk management. The implementa- tion of a risk management system cannot prevent all risks. Things still can, and do, go wrong.

& Ignoring the potential for trouble never makes it go away and often exacerbates the outcome.

& Risk management is not designed just for the extremely risky situation; it should be applied to all volunteer activity.

& Making every reasonable effort to control risks will often avert disaster and/or minimize the magnitude of harm that results should a risk actually materialize.

& If something does go wrong, any attempts that have been made to anticipate and prevent the loss or tragedy constitute proof of diligence, and consequently may reduce exposure to liability.

& To be effective, risk management must be a continuous process rather than a one- time project.

Rising Standards

A few recent high-profile cases of abuse by people in positions of trust in nonprofit organizations have served to dramatically raise legal standards and demands for pub- lic accountability in the nonprofit world. These changes have arisen relatively quickly and many organizations have been caught off-guard. Organizations that have not sig- nificantly increased their attention to risk management in connection with their volun- teers in the last three to five years may well find both their volunteers and their clients exposed to an untenable degree of risk of harm, and the organizations themselves exposed to significant liability. Best practices that were considered adequate just a few years ago could be judged as woefully sub-standard if not wholly negligent in the present. As a consequence, risk management is now an indispensable function in the management of volunteer resources.

Risks and liabilities related to volunteer involvement are exacerbated by three associated trends. First, as resources become scarcer, organizations look to volun- teers to take on increasingly responsible positions. In most volunteer-engaging

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organizations, volunteer involvement has expanded faster than organizational re- sources have been allocated for appropriate volunteer program oversight. The result is that many nonprofit organizations have failed to keep pace with both the complex- ity of their own volunteer programs and the constantly increasing legal and public accountability standards that now apply. Many organizations are in a volunteer pro- gram management deficit position, increasing both the likelihood of trouble and asso- ciated liability exposure.

Second, economic pressures on nonprofit organizations have led to cutbacks and layoffs, and that means fewer supervisory employees to oversee performance stan- dards among volunteers. In economic desperation, some organizations have even cut volunteer program management positions while at the same time inviting more volun- teers into service. Less supervision heightens risk.

Many societies have become significantly more litigious. In a clear pattern no lon- ger confined to the United States, people are suing others more often, and nonprofit organizations are not immune to legal accountability. While not rampant, suits some- times arise from the work of volunteers.

Is This Worst-Case Thinking?

Some critics view attention to risk management as synonymous with being ruled by worst-case thinking, and it is true that some practitioners may feel overwhelmed, or even immobilized, by the potential for disaster. Indeed, it is possible to become para- noid about risks, and/or to take risk management too far. There have been isolated incidents in which the board of directors has pulled volunteers out of service or pro- hibited volunteer involvement in certain rather innocuous activities. These kinds of knee-jerk reactions are always possible, but they are extremely rare.

Risk management, reasonably applied, is not worst-case thinking. It is neither excessive nor incompatible with the work of charities and nonprofit organizations. Rather, it is responsible and contemporary best practice that places due and appropri- ate priority on personal safety, program effectiveness, and organizational well- being. Laird Hunter (1998) puts it this way:

But surely—some of you are bound to say—that’s the wrong end round. Organi- zations need to concentrate on service delivery, on their mission-driven goals to meet the needs of those whom they serve. Being preoccupied about gloom and doom detracts from what should be done…But with discussion about the nature, role and responsibilities inherent in identifying and managing risk, we can put in place techniques for protecting our organizations and ourselves from un- anticipated losses. In doing so we will better achieve our goals and more ably respond to those whom we serve. (p. 1)

Will Risk Management Scare Off Much-Needed Volunteers?

“Won’t all of this risk management rigamarole scare off good volunteers? They’re in such short supply, we can’t afford to turn any away!” This is a comment I hear over and over in my risk management workshops. Fortunately, I never have to answer the question. Other managers of volunteers always jump in to say, “That’s what we

Context for Risk Management 327

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thought too, but we implemented the new protocols and we did not lose a single vol- unteer … volunteers understand that this protects them as well as the agency.” It does not matter where in Canada or the United States this question arises, the experience in the field is the same, over and over: We anticipate volunteer attrition that rarely materializes.

The existence of risks and liabilities in volunteering is no secret. Prospective vol- unteers have read the headlines, listened to the news, and know that risks exist in all kinds of volunteer service. Nothing will scare prospective volunteers away faster than an agency being publicly sued in its community. Volunteers recognize efforts at good management and appreciate being associated with organizations that run their ser- vices well.

No one likes to lose volunteers, and no one wants to see volunteers go away disgruntled or affronted. However, you might consider the possibility that those vol- unteers who cannot see that the organization’s risk management efforts are designed in the best interests of clients, volunteers, staff, and the organization as a whole might not be volunteers you necessarily want to keep on in your program. The repeating theme throughout risk management is “reasonable measures, reasonably applied.”

Risk Management and Liability

Being held liable in the courts constitutes a risk for nonprofit organizations although the fear of liability seems well out of proportion to the actual incidence of lawsuits against nonprofits.

Liability is often of greatest concern among boards of directors who are ultimately responsible for the work of the organization. To understand how volunteers and vol- unteer programs might generate exposures to liability, it is first necessary to under- stand more generally how liability connects to nonprofits. While a full review of liability and related legal concepts is beyond the scope of this paper, several key con- cepts are sketched.

High-Profile Cases

A handful of high-profile cases in Canada, and more recently in the United States and beyond, have received national attention and raised the level of public awareness about accountability in the nonprofit sector. These cases have also captured the atten- tion of nonprofit boards about risks, liability, and how organizations ought to behave both in the presence of risk as well as in the wake of their discovery.

As Shelly Miller (2001) notes, liability is now of growing concern:

In simpler times only a few decades ago, suits against directors and officers of charities, non-profit organizations, and volunteer groups were rare. Those who did volunteer were considered immune from the slings and arrows of those who operated in the corporate business world. Now lawsuits in this area are increas- ing, whether because more persons with an injury or complaint think to consult a lawyer; because more lawyers are prepared to instigate a suit, or people believe that insurance may be in place or because some assets of individuals may be

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available to satisfy judgements. Some lawsuits may have no merit, but you have little control over who sues, whether the suit can be pursued in the absence of real merit, and whether the amount claimed is large or small. (p. 1)

Organizations have a legal and moral responsibility to do everything reasonable to ensure safety in their volunteer program operations. The fear of an allegation of negligence tops the list in most nonprofits.

Negligence

Allegations of negligence are the most frequent form of civil suit among nonprofit organizations (DeWitt, 2010), and connect most directly with risk management.

Negligence is a matter of at-fault liability, meaning the organization is alleged to have done something wrong, or failed to do something that it ought to have done, and an injury or loss has resulted.

For a claim of negligence to be successful, four conditions must be satisfied:

1. Duty of care. A legal duty to exercise care must exist on the part of the organiza- tion toward the injured party.

2. Breach of duty. The organization must be found to have failed to meet its duty of care.

3. Injury or loss. Harm must have occurred to a person or property. 4. Cause. It must be proven that the organization’s actions or inactions caused the

injury in question.

In addition to these four conditions, the courts will also consider the extent to which the harm was foreseeable and the extent to which the organization was in a position to control the circumstances to prevent the incident.

Elusive Standard of Care

Organizations are required to exercise care in their operations, and negligence claims often turn on the determination of the applicable standard of care. That is, how careful was careful enough? How thorough was thorough enough? What does “due diligence” mean in reality?

The standard of care is a fluid concept. It varies from place to place, and from situation to situation. It varies with the nature of the person holding the duty: the more you ought to be able to maintain care, the greater your responsibility for doing so. The standard is also affected by the circumstances of the event: emergencies ver- sus ongoing assistance, for example.

It is difficult to know just how good might be good enough, at least in the eyes of the courts. It would be helpful to have a guidebook that defined terms such as “reasonable,” “reasonable person,” “prudent person,” and “due diligence.” Un- fortunately we are not yet there in the nonprofit management field, and perhaps we never will be.

The concept of standard of care has relevance beyond the level of responsibility that might be assigned by a court of law. Standard of care is also a general concept of

Risk Management and Liability 329

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management. For example, every organization must decide how thoroughly it wants its volunteer program to be managed, and every Director of Volunteer Resource Man- agement must decide how much time and energy to invest in each of the multitudi- nous tasks that fill her or his days. Since resources are limited and finite, and volunteer program staff usually have more to do than can reasonably be accom- plished, the question of how much to invest in any given volunteer management func- tion is a continually recurring dilemma:

& How carefully should volunteers be screened? & What questions should be asked in the interview? & How many reference checks should be conducted? & How frequently should volunteers be supervised? & How thoroughly should each management function be documented?

These are difficult questions when investing more precious resources in any one area means cutting back somewhere else.

A key principle about the standard of care is best kept in mind: the riskier the activity, the higher the standard of care required of the organization. As Ingrid M. Johansen (1997, p. 13) states, “The duty to investigate and supervise a volunteer cor- responds to the risk inherent in the position he or she fills.” Where the activities under- taken by volunteers are, by definition, more dangerous, and/or where clients are more vulnerable, greater precautions ought to be implemented.

How does one know what standard might apply? In the absence of absolutes, two sources can point to relevant and ever-changing standards of care.

INDUSTRY STANDARD The first place to look for a “standard” in volunteer program management is in other like organizations. There are no absolute standards, but whether an organization meets prevailing standards in its field is something the courts may consider. Here are some suggestions:

& Ask similar organizations how thoroughly they screen volunteers whose work is similar to the work of your volunteers.

& Ask colleagues around the lunch table at the next community service conference how thoroughly they train their participants, whether they take attendance at training sessions, and whether volunteers are asked to sign off on the training they have received. Ask questions like these about a range of volunteer program management functions.

& Send a small e-mail-based survey to colleagues about supervision of volunteers in off-site programs.

& If you are part of a provincial/state or national association, encourage the parent body to conduct a survey of volunteer program standards and practices among its members and distribute the results to all. Be sure to include a reasonably broad sample in whatever inquiry is launched.

Volunteer program management is now a profession with a quickly growing body of knowledge and skills, academic and applied research, professional commu- nication forums, and professional associations. Evolving industry standards are

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therefore reflected in the professional literature about—and communicated through courses on—volunteer program management. The lesson is to keep up with changes in the field, integrate new best practices, and stay current with changing thinking and emerging techniques of effective volunteer engagement. Ignorance is not a defense. A plea of “But we’ve always done it this way” is unlikely to fall on sympathetic ears in the justice system.

LEGAL PRECEDENTS Negligence is a matter of civil law. Each case is determined on its own circumstances, guided in large part by precedents set in previous cases—case law. It is critical to stay current with precedent-setting cases of relevance. The services of an attorney (particularly one who specializes in civil litigation), paralegal, law pro- fessor, or law librarian can be contracted on a fee or pro bono basis to provide notice of relevant precedents. Internet sites specializing in nonprofit law provide early warn- ing about changing operational and legal standards.

Because professional and legal standards are continuously changing (generally in an upward direction), and because the standards are changing quite quickly in con- nection with volunteer program management, it is critical to stay vigilant, current, and open to the integration of new thinking and emerging best practice.

Risk Tolerance Zone

Organizations must define the extent of risk they are able and willing to tolerate. This is called the risk tolerance zone. There are two key points to keep in mind about risk tolerance zones. First, there are

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