DISTRICT LEGAL OFFICE
William F. Everill, Esq., PhD., DSO-Legal 7th District
May 2004
Questions come to my office requesting an evaluation concerning an activity that needs to be implemented or a procedure that raises concerns as to its propriety.
To fully assist in making legal recommendations we need to know where you want to go; perhaps the current path is unacceptable but a new route may be devised and will accomplish the desired results.
The following steps may be helpful in determining what can be done or what can be accomplished more effectively.
(BEFORE ASKING FOR A LEGAL OPINION ANSWER YOUR OWN QUESTION AS TO WHAT YOU WANT TO DO:
DEFINE THE OBJECTIVE(S);
STATE RELATIVE FLOTILLA, DIVISION AND DISTRICT GUIDELINES, POLICIES AND PROCEDURES IN EFFECT;
STATE THE PROBLEM IN TERMS OF THE GAP, I.E., DETERMINE WHAT EXISTS AND WHAT IS DESIRED;
GATHER AND ANALYZE THE FACTS VIA;
a. DETERMINING MULTIBLE/ VIABLE SOLUTIONS
b. ADVANTAGES AND DISADVANTAGES OF EACH….
c. PROJECT THE PROBABLE RESULTS OF EACH POSSIBLE SOLUTION
SELECT THE BEST ALTERNATIVE SOLUTON AND WHY IT IS THE BEST…
6.HOW TO IMPLEMENT THE RECOMMENDATION, I.E,
WHO IS TO BE ENVOLVED (PERSONS/ORGANIZATION ETC.);
WHAT NEEDS TO BE DONE (ACTIVITY);
WHERE IS IT TO BE DONE (LOCATION);
WHEN IS TO BE DONE (DATES);
HOW IS TO BE DONE (LOGISTICS/TOOLS NEEDED ETC.)
At this point we are ready for a legal opinion
William F. Everill, Esq., PhD., DSO-Legal 7th District
Date posted: 5/20/2005
WHERE DO YOU WANT TO GO? ... WHY DIDN’T YOU TELL ME?
There is an old saying in the legal profession; "One who is his own lawyer has a fool for a client". This is to say...the client may be so absorbed in the destination that the pot holes along the way are obscured.
Often the most expensive piece of advice is "NO you may not do this or that". It is easy to sit and do nothing...the corporate lawyer is "off the hook", collects his retainer and moves on to the next "NO". No one is hurt and life goes on, however, does the life of the organization decline in stagnation and ultimately gives way to the competition?
Several years past we were meeting with a group of corporate lawyers brainstorming the responsibilities of the legal profession as it relates to the client. True, if our client stayed in bed all day perhaps he would not be hit by a train and would be protected from some unforeseeable disaster...of course, he may starve to death in the meantime.
What are the issues we face as corporate lawyers...metaphorically;
- Often times the "Body is Cold" (moment in time lost) before advice is sought,
- Pot holes have been hit (legal obstructions) causing loss of support,
- Roadblocks (conditional permission needed/requiring a new route) straining corporate assets.
These are but a few reasons...I’m sure many more could be named….you get the picture.
Bring your lawyer into the picture during the planning stages, i.e., tell him where you want to go before departure and there may a way to get there before the unforeseeable occurs. Avoid; it cannot be done, NO or after the fact responses. Your lawyers’ primary responsibility is to help you get to where you want to go...usually there is a way. Something may have to be altered but the primary objective will be accomplished.
We are here to assist not to undermine….we do need to know where you want to go before you get behind the wheel...we will search for a way to meet your objectives.
Next, allow me to briefly review CONTRACTS:
READ! READ! READ! READ!
BEFORE SIGNING & SUBMITTING CONTRACTS FOR APPROVAL
Most agreements are made with Hotels/Motels. What should we consider in reviewing such contracts, i.e., items to exclude and what needs to be adde...do we have funding and who should sign?
HOTEL/ MOTEL CONTRACTS... REQUIREMENTS/LIMITATIONS
- FIRST...ALLOCATED FUNDS, I.E., FLOTILLAS AND DIVSIONS MUST HAVE APPROVAL FROM MEMBERS AND/OR BOARDS.
- LIABILITY, INDEMNITY & HOLD HARMLESS CLAUSES SHOULD NOT BE A PART OF THE AGREEMENT.
- MAY NOT BIND THE UNITED STATES COAST GUARD.
- SHOULD HAVE A CANCELLATION PROVISION FOR UN- FORESEEN CIRCUMSTANCES WHICH IS BEYOND THE CONTROL OF THE AUXILLIARY UNIT...WITHOUT PENALTY. (FORCE MAJEURE)
- COMPLY WITH THE AMERICAN DISABILIES & REHABILITATION ACTS.
- COMPLY WITH THE HOTEL AND MOTEL FIRE AND SAFETY ACT.
- SIGNED BY THE UNIT COMMANDER AFTER REVIEWING FOR POLICY COMPLIANCE AND APPROVAL BY DSO-LEGAL
ALWAYS, IF IN DOUBT, ROUTE TO LEGAL (AFTER REVIEWING FOR POLICY COMPLIANCE WITH DCP/DISTRICT)
Regards,
William F. Everill, Esq., PhD., DSO-Legal 7th District
Archived Article - Date posted: 6/19/2003
WHY STANDING RULES?
Each of us take pride in authorship as we promulgate rules/procedures compatible with the promotion of our individual assignments/responsibilities. As we prepare our agenda and set the means by which the objectives are to be met outside influences/demands begin to dictate what we can and cannot do in the furtherance of our cause. These laws/regulations are not by nature or design passed for our benefit/initiatives but are placed into effect in an effort to maintain a certain amount of stability/peace/consistency among the populace as a whole……..resulting in rules of which there is little if any room for compromise.
Standing Rules gives a "bird’s eye" view of what we can and cannot do as relates to the rules and regulations governing our organization as well as reminding us of our responsibilities pertaining to our "office/assignment".Each Unit Commander has a certain amount of discretion which can be exercised (as noted in the SAMPLE Standing Rules which has been given to the DCPs.). However, there are areas of which discretion is not allowed as published via District/National policy.
The following highlights non-discretionary authority and should be reviewed for compliance before submitting to the DCO via DCP & DSO- Legal for approval.
The format should be followed fitting needed additions under the appropriate Article.
Click to download REQUIRED-ARTICLES.rtf which is a Rich Text document with the required articles for your Standing Rules.
William F. Everill, Esq., PhD., DSO-Legal 7th District
Archived Article - Date posted: 10/28/2002
DEFENSE DEFENSE DEFENSE
Among the many duties assigned to your Legal Department is one which promulgates an explanation as to why we appear to be "nit-picking" when evaluating administrative procedures, standing rules, performance under orders and the like.
In the defense of any legal challenge, the advocate surrounds himself/herself with self-serving documents which in themselves promote the legitimacy of the client’s actions, or the lack thereof, relating to a given set of "rules/procedures/policies" as set forth by the client.
In determining the alleged legitimacy of such "rules/procedures/policies," which are subject to being implemented, the courts look to (1) reasonableness, (2) a means of monitoring to assure consistency of compliance as well as (3) the ability to properly enforce. If these elements are found lacking, the defense is limited as to relying on said rules, procedures, and policies as a favorable response to a complaint.
Finally, there must be documentation as to 1) reasonableness, (2) a monitoring system in place to assure consistency of compliance and (3) the rules, procedures, policies being properly enforced.
Examples of Documentation:
- Procedural manuals
- Training sessions/classes
- Recorded and published minutes of unit/training and all other meeting
- Standing rules
- Contract/license guidelines
- Compliance with "Orders" oral/written
- Life style consistent with all the above.
In closing this caveat -- for the court to give credence to the defense in using the documentation, the enforcement must not be selective, but consistently followed.
William F. Everill, Esq., Ph.D., DSO-Legal 7th District
Archived Article - Date posted: 7/1/2002
DISTRICT LEGAL OFFICE
There have been more than a few questions arising out of Contracts/Agreements, Sales Tax on goods purchased by the Auxiliary, i.e., Auxiliarist, Flotillas, Divisions, District and the responsibilities of the ADSO-LPs. Perhaps a few comments on the subjects will clarify and put to rest some of the concerns.
CERTIFICATE OF EXEMPTION:
Certificate of Exemption gives USCGAUX exemption from sales taxes on purchases by “holders” of the Certificate, i.e., units of the Auxiliary … Flotillas, Divisions and District. Individual Auxiliarists are not “holders” of the Certificate therefore must pay tax on their purchases even though the Auxiliary later reimburses them. (Flotillas’ etc. may not purchase goods for the exclusive use of an Auxiliarist in order to avoid paying a tax).
In purchasing items for an Auxiliary Unit, in order to be exempt from the sales tax, the payment must be made by an Auxiliary Unit Check.
SIGNING CONTRACTS/AGREEMENTS:
Contracts/Agreements may only be signed by the Unit Commander, i.e., DCP may not sign for the Flotilla but only for division agreements and then after approval of DSO-LP.
Contracts/Agreements with “hold harmless/indemnity” clauses may not be a part of the agreement. Needed funds must have the approval of the Unit. Contracts/Agreements should be limited to no more than twelve (12) months.
ADSO-LP:
ADSO-Legal Staff Officers are appointed to expedite the handling of “auxiliary boating accident claims” only…all other questions should be routed to the DSO-LP after conferring with your DCP/DCO to be sure there are not policy questions to be first addressed.
Most important, read all agreements before submitting.
As always, call me before if in doubt.
William F. Everill, Esq., PhD., DSO-Legal 7th District
Archived Article - Date posted: 7/1/2002
