August 2013 - Issue 18

Educational Forum: There’s an app for that risk

Meet Our Newest Member: LA-RICS

2013 Memorandum of Liability Coverage

Web-based Training

Risk Management Success Stories

The Authority's Crime Insurance Program

"Blackboarding" Medical Damages in Personal Injury Cases

Names of Officers Involved in Pepper Spraying Ordered Disclosed

Court Orders Retrial in Lawyer’s Death at Hands of Police

LAPD Reserve Officer Not Employee Under FEHA—Court

Q&A – Public WiFi


Adam Schrager

News: Worthy

Educational Forum:
There’s an app for that risk 

Keynote speaker, Adam Schrager

This October 8 - 11 the California JPIA and its members from all over the state will travel to Indian Wells to participate in the 18th Annual Risk Management Educational Forum.

The idea behind this year’s Forum theme “There’s an app for that risk” is that the Authority is positioned to work with each member in the application of best risk management principles in all areas of their business. 

“What better place to strengthen your business and risk expertise than at this year’s educational forum,” said California JPIA CEO Jonathan Shull. “Continually striving to offer innovative solutions for member risk exposures and losses, the California JPIA is progressive in its approach to risk management and training, including the annual educational forum.” 

The Principled Politician

This year’s keynote speaker is Adam Schrager. Schrager is an investigative reporter and producer with WISC-TV, the CBS affiliate in Madison, Wisconsin. He has covered politics for more than 20 years, most recently at Wisconsin Public Television and at KUSA-TV in Denver. Schrager is the author of The Principled Politician, a biography of former Colorado Governor Ralph Carr whose stand on behalf of Japanese Americans after Pearl Harbor would cost him his political career. Schrager takes a look at ethics through the test of Carr’s convictions. Schrager’s journalistic skills bring the story alive and captivate the essence of this courageous man. It is a vibrant story that focuses on people and genuine values, with humanity and a touch of humor, too.

The Forum kicks-off on Wednesday with the Opening Session: Public Agency Enterprise Risk Management. This opening session will provide participants the opportunity to discover Enterprise Risk Management and learn how it helps identify and quantify risk, reduce operational surprises, and minimize losses. Through interactive learning and small group discussion, participants will learn to enhance agency response to risk, align strategies with operational policy, gain an understanding of how potential events affect an agency, and discover how to evaluate an agency’s “risk appetite.”

Thursday’s breakout sessions include: Diving into the Deep End of Disability, Public Records Act, ADA Accessibility, Inspiring Better Government, Liability Update, Cyber Liability, Workers’ Compensation Update, Social Media, Cooperative Agreements, How Strategic Planning Facilitates Good Risk Management, iPad Tips for Increasing Productivity and Performance, Governing Body/Manager Relations, The Role of the Regional Risk Managers, and Putting Authority Resources to Work for You.

The Forum wraps up on Friday with the Closing Session: Keeping You Safe/Violence in the Workplace. A number of different actions in the work environment can trigger or cause workplace violence. One of the most difficult roles for any supervisor, manager, or Human Resources professional is meeting with an employee who has made threats of workplace violence. Through interactive role playing, participants will learn to recognize potentially violent workplace situations, techniques to diffuse escalating situations, and security procedures to ensure the safety of employees during violent situations. 

And to continue the Authority’s Friday tradition, the Forum will conclude with a game-styled test of knowledge: Name That Risk where you are “app” to gain some new risk management facts and win prizes.

Registration is free to California JPIA members. Non-member registration fee is $350.00. Visit www.cjpia.org/risk-management/educational-forum for Forum information and to register.



LA-RICS

News: Worthy

Meet Our Newest Member: LA-RICS

The Authority is pleased to welcome its newest member, the Los Angeles Regional Interoperable Communications System (LA-RICS). The Authority’s Underwriting Committee reviewed LA-RICS membership application and initial risk management evaluation report and recommended Executive Committee approval. Following input from members of the Board of Directors, the Executive Committee approved membership for LA-RICS beginning July 1, 2013. 

In January 2009, Los Angeles County, 82 cities, the Los Angeles Unified School District, and the University of California, Los Angeles entered into a formal joint powers agreement to create the LA-RICS Authority. The entity is registered with the Secretary of State as a public agency. Today, LA-RICS consists of 86 members. Thirty eight LA-RICS member cities are also members of the California JPIA.

Currently, Los Angeles region first responders use a variety of often incompatible radio technologies and frequencies, leading to neighboring agencies and systems being unable to communicate easily with one another. LA-RICS will replace these systems with a single countywide network; improving overall radio traffic capacity and coverage, and providing a first of its kind dedicated voice and broadband data network for first responders. “The events of 9-11 and subsequent natural disasters such as Hurricane Katrina clearly show the need for efficiency in public safety communications,” said Patrick Mallon, Executive Director of LA-RICS. “LA-RICS will provide seamless communications across the 81 different public safety agencies serving the more than 10,000,000 residents of the greater Los Angeles region.”

LA-RICS will be a modern, integrated wireless voice and data communication system designed and built to serve law enforcement, fire service, and other municipal services throughout Los Angeles County. The system will provide day-to-day communications within agencies, allowing seamless interagency communications for responding to routine emergency and catastrophic events. The project is entering the design and planning phases and the system is estimated to take five years to implement. For more information on LA-RICS, visit http://www.la-rics.org.



News: Worthy

2013 Memorandum of Liability Coverage

by Paul Zeglovitch, Liability Program Manager

Throughout each coverage period, staff continually evaluates the Authority’s Memorandum of Liability Coverage (MOLC) for sections that should be considered for clarification, amendment, or change. We strive to provide a coverage document that is both easy to follow and is even-handed when dealing with members.

On June 26, 2013, the California JPIA Executive Committee approved revisions to the MOLC. The revised MOLC reflects the changes recommended by staff subsequent to several meetings and input from the Authority’s general counsel, Byrne Conley. 

The 2013-2014 Memorandum of Liability Coverage for 2013-2014 contains several changes. The changes and amendments clarify existing language, alter existing coverage, and add new coverage. The most pertinent of which are listed below:

  • The term “City Manager” has been substituted throughout the MOLC with the term “Chief Executive”. Chief Executive more accurately describes this role for the entirety of the membership as several members are not cities.
  • The definition of Protected Party “E” has been amended to clarify that there is no coverage for repair facility employees while driving member-owned vehicles, however there is coverage for member employees when they are engaging in repair activities and driving the vehicles of others. This change is found under section (i).
  • The definition of a Quiet Zone (railroad) has been deleted and references to it in the definition of a Protected Contract as well as to the establishment, designation or implementation in Exclusion “K”.
  • Exclusion “P” has been amended by changing the word “administration” in section (i) to “administrative application.” In addition, a full sentence was added at the end of the exclusion that indicates that the exclusion shall not apply to actual enforcement activities. This change allows for there to be coverage for liability arising out of code or ordinance enforcement efforts, however there is no coverage for claims arising out of the actual adoption or administrative application of the code or ordinance, such as alleged civil rights violations.
  • Exclusion “Y” has been amended to include language that clearly indicates that the cost of service, disability or industrial disability retirements and payments for paid administrative leave to employees are not covered under employment practices liability.

These changes accomplish the goal of providing an easy to follow, fair coverage document for the Authority’s membership. Should you have any questions about coverage related issues, please contact Paul Zeglovitch, Liability Program Manager, at pzeglovitch@cjpia.org


Your agency's personalized Memorandum of Liability Coverage and Certificate(s) of Protection are now available for you online and can be accessed using the following link: http://eoc.cjpia.org/4dcgi/services/coverage_evidence.shtml. Using the drop down menu, select your member agency/organization. At the bottom of the Evidence of Coverage section, you may select to download the Memorandum of Liability Coverage. 

Additionally, Memoranda of Coverage for Authority programs are available for viewing and printing on the Authority's website under the "Programs" tab, http://www.cjpia.org/protection/coverage-programs



News: Worthy

Web-based Training

by Catherine Sloan, Senior Training Specialist

Training plays an important role in supporting risk management and good governance of the members. The Authority’s training team is responsible for both pool-wide and member-specific training. This begins with identifying those areas of losses that are preventable, and then developing programs that attempt to reach all levels of the member organization in ways that successfully transfer the knowledge needed. 

This past year nearly 26,000 member employees took advantage of the Authority’s training opportunities to foster a risk-focused workforce. Approximately 12,000 member employees attended 600 instructor led trainings hosted at member agency locations; DVD training was delivered to approximately 3,000 employees; and over 8,800 member employees viewed web-based and webcast trainings. 

The Authority’s web-based training (WBT) is becoming the preferred training delivery option for members. Available in the Authority’s Resource Center, the WBT offerings are structured to allow self-directed, self-paced, and interactive learning via the Internet. Each learner can access training exactly when it is needed at a time and location convenient for that particular learner. So instead of sitting in a full-day training session where only half of the information is relevant to any one learner, employees can focus on what is most important to their specific jobs. More efficient use of time training means less time away from the job.

Another reason for WBT's efficiency is that people learn at different speeds. In a classroom, everyone proceeds at the same speed, but with WBT, learners can work through training at their own pace. Learners can also repeat a training until it is perfectly understood. Most of the Authority’s WBT offerings include built-in assessments to test comprehension and software simulations to help learners obtain appropriate feedback. The assessments require a 100% score to receive a “Completed” on the WBT lesson.

Learners can choose from more than ninety WBT topics including: Preventing Discrimination and Harassment; Discrimination and Respect; Workplace Violence; Principles of Office Ergonomics; Preventing Slips, Trips, and Falls; Electrical Safety; Confined Space; and Defensive Driving: Passenger Vehicles. The WBT offerings vary in time from 15 minutes to two hours depending on the topic and statutory requirements. An employee’s personal training history is tracked in the Resource Center. Employees also have the ability to print out an individual certificate of completion.

Click here to access a complete listing of the web-based trainings and other training offerings available in the Resource Center. Note: you will need to log in with your username and password to access the Resource Center. 



Re: Members

Risk Management Success Stories

by Bob May, Risk Management Program Manager

By actively managing risk, members can reduce losses, support financial stability, and protect resources. Through the Authority’s LossCAP program, Regional Risk Managers partner with members to identify and resolve priority risk management action items. 

The following stories illustrate this approach to risk management. 

Town of Apple Valley
Public parks operate in an inherently risky environment. James Woody Park is located in the Town of Apple Valley. A large swing gate opened onto a pedestrian pathway. The Authority’s Regional Risk Manager identified a potential exposure with the swing gate; the height of the gate created a hazard that could have caused serious upper bodily injury if a pedestrian were to come in contact with the open end of the gate. Town staff determined that by installing a bollard onto the gate, the hazard would be mitigated by preventing pedestrians from injury. 

Another hazard identified at the park was an irrigation box located on the baseball field. The irrigation box sat eight inches below field grade, creating a tripping hazard for ballplayers. Town staff restored the irrigation box to grade level and conducted an inspection of all irrigation boxes on the playing fields in the park.

Hazard 1
Hazard: open swing gate
Mitigated Hazard 1
Mitigated hazard: attached bollard
Hazard 2
Hazard: below-grade irrigation box
Mitigated Hazard 2
Mitigated hazard: irrigation box at grade

City of PowayCity of Poway
The City of Poway was successful in implementing recommended risk management changes to the City’s railroad barn.

In 1986, the City of Poway purchased a 4.75-acre estate, which included a Baldwin Steam Engine and its rail. This was the beginning of what eventually became known as Old Poway Park, which officially opened in July 1993. Historic buildings from around Poway were brought to the site and restored, including Templars Hall and the Nelson House. The two existing buildings on the property -- the Porter House and the Hamburger Factory -- were refurbished. A blacksmith shop and gazebo were built to enhance the ambiance of the estate, which also included a two-acre green park used for picnics. A train barn was built in 2004 to house the rolling stock. The train barn is used by the Poway Midland Rail Road Volunteers (PMRRV), a non-profit organization dedicated to the restoration, operation, and maintenance of the antique railroad equipment in Old Poway Park.

When the City recently asked Authority staff to accompany the City’s risk management staff while conducting a safety inspection of the train barn, it received valuable feedback from the Authority on ways to improve safety procedures for the PMRRV, as well as improving overall facility cleanliness. As a result of this inspection, the City implemented a detailed action plan. The action plan included housecleaning assignments, limitations on the amount of concurrent projects, a reduction in their equipment inventory, as well as implementing standard safety procedures for power equipment. The City’s staff has worked tirelessly with the leadership of the PMRRV to accomplish these tasks. A post-inspection site visit was held on July 31, 2012 to document all of the accomplishments made. 

Currently, on-site staff is meeting monthly with the PMRRV’s Safety Officer to ensure the continued commitment to safety and cleanliness in the facility.



Coverage Matters

The Authority's Crime Insurance Program

by Tom E. Corbett, Senior Vice President at Alliant Insurance and Jim Thyden, Insurance Programs Manager at California JPIA

While fidelity insurance and bonds are often considered to be an ancillary coverage by public entities, they really should be viewed as an essential element in any risk management program. Theft of money, securities, or other property by employees, elected/appointed officials or others is a significant exposure that should not be taken lightly. Although these types of losses do not occur frequently, when they are discovered they can be devastating to an entity that is not properly covered. Unfortunately, the largest losses typically occur over a period of several years before they are discovered. 

Here are a few real-life claim examples:

  • The comptroller of a town with less than 16,000 residents managed to defraud taxpayers out of more than $53 million over a period of 22 years in a complex scheme in which she opened a bank account that she alone controlled, abused her city position to transfer taxpayer money into the account, and then spent it on personal and business items. To date, only $7.4 million has been recovered through live online auctions of about 400 quarter horses, vehicles, trailers, tack equipment, and a luxury motor home.
  • A city employee accused of stealing more than $1.3 million worth of city printer ink and toner. It was alleged that from 2006 to 2012 the employee purchased the ink and toner with city funds and resold the items.
  • A former city Public Utilities project engineer was charged with 70 counts of theft for allegedly stealing $1.1 million from the city by diverting customer checks for water-main-extension projects into a private bank account. Investigators say he used some of the money to buy a rental house and a car and to pay down credit-card debt. Police seized $220,000 from his bank account but say about $500,000 is unaccounted for.
  • A Fire Department employee stole over $1 million over four to five years in a scheme to siphon cash to pay for vacations and home furnishings by approving invoices that appeared to be for legitimate purposes.

For elected and appointed public officials who are required to maintain a surety bond, California law allows the bonding requirement to be satisfied by either a public official bond or a government crime insurance policy. Both provide similar protection for a public entity, and provide a means by which the public entity can recover monetary losses sustained by the public entity that result from an elected or appointed official’s dishonesty or failure to faithfully perform duties as prescribed by law. 

It should be noted that public official bonds and government crime insurance policies are not the same, however. The key difference is a public official bond is a surety bond that is purchased by the public official and guarantees that individual will fulfill his or her duties according to law. If the official does not, the surety bond will assure recovery of fines, fees, or expenses that are levied, but ultimately the official must make good on any loss resulting from the official’s dishonest acts or misconduct while in office (i.e. the bonded individual must repay the surety company for the amount of the loss paid under the bond). Public official bonds typically cost more than crime policies, and the amount the individual may be bonded for is dependent upon the individual’s personal assets.

On the other hand, a government crime policy is an insurance policy that reimburses an employer (the public entity) for loss of money, securities or other property resulting from the dishonest acts of an “employee,” or the failure of a covered “employee” to perform his or her duties as prescribed by law. It is much different from a public official bond in that, because it is an insurance policy, it contains its own terms, conditions and exclusions. Crime insurance policies typically cost less than public official bonds, and higher limits can be purchased than may be available from a public official bond. Also, under a crime insurance policy a deductible will typically apply. As with public official bonds, the insurance company has the right to subrogate against the individual responsible for the loss, but it should be noted that under the Authority’s crime insurance program the insurer has agreed to waive subrogation except in cases involving fraud or dishonesty by the individual(s). Furthermore, a crime insurance policy can be written to provide blanket coverage for all employees and officials of the public entity, while a public official bond is underwritten and issued for specific individuals.

While public official bonds are fairly standard in their wording, crime insurance policies can vary widely in the coverage that they provide. When considering the purchase of crime insurance, there are a number of coverage enhancements that should be considered as outlined below. It should be noted that the following are all included in the Authority’s crime insurance program:

  • Generally, crime insurance should be written on a “discovery” form policy, since coverage under this form applies to losses discovered during the period the policy is in effect, regardless of whether the loss actually occurred during that period.
  • For governmental entities, faithful performance of duty coverage should be included up to the full employee theft limit, and policy exclusions for treasurers/tax collectors and bonded employees should be deleted.
  • Policies should include or be endorsed to provide blanket coverage for all employees, officials, board members, committee members, volunteers, and leased workers.
  • Blanket coverage for any employee benefit plans of the insured should be included.
  • Standard language contained in most crime insurance policy forms automatically excludes coverage for any employee upon discovery by the insured of a theft or any other dishonest act committed by the employee whether before or after employment by the covered entity. The Authority’s crime insurance program policy has been amended so that this condition only applies if the department that handles insurance for the entity learns of a theft or dishonesty act that resulted a loss in excess of $25,000 or more.
  • The policy should provide coverage for investigative expenses paid to third parties such as forensic accountants. Determining the total amount of a large loss can be very difficult because embezzlers are usually very good at covering their tracks. Having coverage in place for such expenses can result in a significant cost savings. The Authority’s program provides coverage for up to $75,000 of investigative expenses to establish the amount of a covered loss.
  • Coverage for theft losses committed by vendors is available from a handful of markets and should be added by endorsement if possible. The Authority’s program includes a $1,000,000 limit in excess of a vendor’s crime insurance policy if required by contract. If the vendor’s policy is not valid or collectible, this sublimit applies to loss in excess of $500,000. This coverage only applies if crime insurance is required of the vendor in a contract.
  • Your policy should include or be endorsed to provide coverage for loss of third-party property resulting from acts committed by your employees. The Authority’s policy includes third party coverage with a $250,000 sublimit subject to a $25,000 deductible.
  • In addition to coverage for Employee Theft/Faithful Performance, crime policies can provide coverage for losses caused by third parties, including Forgery or Alteration, Theft of Money and Securities, Robbery & Safe Burglary, Computer Fraud, Funds Transfer Fraud, Money Orders/Counterfeit Money, and Credit, Debit and Charge Card Forgery. The Authority’s policy includes all of these coverages.
  • As noted above, under the Authority’s crime insurance program the insurer has agreed to waive subrogation against an employee except in cases involving fraud or dishonesty by the individual(s).

Since crime insurance and surety bonds are relatively inexpensive compared with other lines, the protection they afford to the entity against severe losses certainly justifies the cost of the coverage.

If you have any questions regarding the Authority’s Crime Program, contact Gail White at Alliant Insurance at gwhite@alliant.com or (949) 660-8127, or Jim Thyden, Insurance Programs Manager at the Authority at jthyden@cjpia.org or (562) 467-8784.



Legal Matters

Legal Matters

"Blackboarding" Medical Damages in Personal Injury Cases

by Paul Zeglovitch, Liability Program Manager

The California Court of Appeal just issued an important opinion in Corenbaum v. Lampkin, addressing two issues regarding damages calculations that had previously been left unresolved. This decision further limits the damages evidence a plaintiff can offer at trial. In essence, plaintiffs may only introduce evidence of amounts actually paid for medical treatment, not the full amounts billed yet unpaid, as a measuring stick for any of their damages claims. 

In Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal.4th 541, the California Supreme Court held that plaintiffs could not recover, as an economic damage, any amount more than what they paid directly or what was paid by their insurer for medical services rendered. Howell left open whether evidence of billed, but unpaid, medical expenses could be admissible for other purposes such as determining future medical expenses and as a factor in calculating non-economic damages (e.g., pain and suffering). Corenbaum answered “no” to both of these issues. Under Corenbaum, the full amount billed for plaintiffs’ medical care must not be considered in determining plaintiffs’ future medical damages or damages for pain and suffering. 

Corenbaum makes clear that experts may not rely on the billed but unpaid portions of past bills to forecast future medical expenses. As the Court explained, because the full amount billed for past medical services is not relevant to the value of those services, the full amount billed can provide no reasonable basis for an expert opinion on the value of future medical services. Evidence of the full amount billed for past treatment therefore cannot support an expert opinion of the reasonable value of plaintiffs’ future medical services. Corenbaum also precludes plaintiffs’ lawyers from using evidence of billed, but unpaid, medical expenses as a means for determining pain and suffering damages. In addressing the subjective task of determining pain and suffering damages, the Court noted that lawyers often use the amount of economic damages as a point of reference to the jury (e.g. medical damages of $1 million multiplied by say a factor of 10 yields pain and suffering damages of $10 million). But just as the full amount billed for past medical services is not relevant to determining a plaintiff’s economic damages (in terms of either past or future medical expenses), the full amount billed should not be considered for the purpose of proving pain and suffering damages. 

The Corenbaum decision is significant insofar as judges, following Howell, have continued to allow full medical billings into evidence through the side door. This practice has allowed plaintiffs a means of requesting inflated and unjustified damages awards. This decision should generally result in lower average jury verdicts and settlements for personal injury plaintiffs.



The Court Report

Names of Officers Involved in Pepper Spraying Ordered Disclosed

Reprinted from the Metropolitan News-Enterprise, July 24, 2013

Court Says Two Reports Identifying Police Are Not Exempt From California Public Records Act

The University of California must disclose the true identities of police officers named in a report regarding the Nov. 18, 2011 incident in which students and others protesting rising college costs at the university’s Davis campus were pepper sprayed, the First District Court of Appeal ruled yesterday.

Div. Four, in an opinion by Presiding Justice Ignacio Ruvolo, said the California Public Records Act does not permit redaction of the officers’ names from the report of an independent task force appointed by UC President Mark Yudof and headed by former state Supreme Court Justice Cruz Reynoso. 

The incident became an Internet cause célèbre after a videotape of an officer, later identified as UC Police Department Lt. John Pike, methodically pepper spraying a row of seated nonviolent demonstrators after they refused to disperse. 

In response to public outcry, Yudof asked Kroll, the consulting company headed by former Los Angeles Police Chief William Bratton, to prepare “an independent, unvarnished report” about the incident and also appointed the Reynoso task force, which also included a number of members of the university community. 

Company’s Investigation
Kroll interviewed 14 officers, none of whom were under investigation by the department or were the subject of citizen complaints, the firm stated in its report. The firm also said it did not have access to information generated by the university police department’s internal investigation.

Kroll said the use of pepper spray was a product of “failures of leadership, failures of communication and failures of documentation.” The firm recommended changes in the structure of UC police system-wide, along with changes in how UC makes decisions and how UC officers are trained. 

The firm emphasized that recommending discipline, if any, to be imposed on individual officers was outside the scope of its mission.

The Reynoso task force reviewed the Kroll report and issued its own report, declaring that the incident “should and could have been prevented” and blaming “nearly everyone involved,” as Ruvolo put it, including police officers. That report, like Kroll’s, said that actions to be taken against individual officers were outside the group’s charge. 

Prior to the simultaneous release of the two reports, the union representing UC officers brought an action against the university to block their being made public. The suit was settled with an agreement that the reports would be released, but with the names of the officers—other than Pike and then-Chief Annette Spicuzza, whose identities were well-known by that time—redacted. 

The settlement included an express acknowledgment that the university might have to unredact the names under the California Public Records Act. 

CPRA Report
The companies that publish the Los Angeles Times and The Sacramento Bee requested copies of the unredacted versions of the reports under the CPRA. They brought a petition for writ of mandate, which was granted by Alameda Superior Court Judge Evelio Grillo. 

The trial judge was correct, Ruvolo said yesterday.

Under the CPRA, the jurist explained, the university is required to make the documents public unless a statutory exemption applies, and none of the exemptions claimed by the union does. 

The union argued that under the so-called Pitchess statutes, the reports should be considered either to be reports of citizen complaints, or police officer personnel records, and thus not subject to disclosure, except as necessary for litigation purposes.

Ruvolo disagreed, saying the information sought by the newspapers is well outside the limits of what the laws protect from disclosure, and emphasizing that exemptions from public disclosure must be construed narrowly. 

“Our Supreme Court has held that a police officer’s identity and conduct while on the job are not private, intimate, personal details of the officer’s life,” he wrote. “Rather, they are matters with which the public has a right to concern itself. “

Disclosing the names of officers involved in this highly visible, highly publicized incident, without any information about disciplinary proceedings or disposition of citizen complaints, will not invade any officer’s legitimate rights to privacy, the presiding justice said. 

The case is Federated University Police Officers Association v. Superior Court (Los Angeles Times Communications LLC), 13 S.O.S. 3712. 



The Court Report

Court Orders Retrial in Lawyer’s Death at Hands of Police

Reprinted from the Metropolitan News- Enterprise, July 26, 2013

Concurring Panelist Calls Judge Wright’s Conduct in Case ‘Worrisome’

The Ninth U.S. Circuit Court of Appeals yesterday ordered a new trial in a suit by the mother of a Riverside County attorney against sheriff’s deputies she says killed her son in front of his home in a gated Palm Desert community. 

Judge Ronald Gould, writing for the panel, said District Judge Otis D. Wright II of the Central District of California should not have relied on his personal experiences, or weighed conflicting evidence, in granting judgment as a matter of law in favor of the defendants. The plaintiff, Carole Krechman, was entitled to have all reasonable inferences drawn in her favor, Gould explained, under Rule 50 of the Federal Rules of Civil Procedure. 

Gould said it was unnecessary to determine whether a new trial was also called for on grounds of judicial bias, or to reassign the case to another district judge. He expressed confidence Wright will apply the correct standard on remand. 

Judge Jacqueline Nguyen concurred in the opinion. Judge N. Randy Smith concurred separately, saying that while he agreed it was unnecessary to consider the claim of bias, Wright’s conduct in the case was “worrisome.” 

Appel died in May 2010 in the Indian Ridge community. While some aspects of the struggle are the subject of conflicting testimony, Gould explained, there was evidence that a deputy came to the home, approached Appel, and determined that he was under some type of stress potentially requiring that he be taken into custody and held for psychiatric evaluation.

When Appel suddenly became combative, the officer called for assistance. There was testimony that it took four officers to subdue him, and that one of the officers placed his knee on Appel’s back—applying more than 100 pounds of pressure—restrain him while he was being handcuffed. 

The deputy testified that he removed his knee when it appeared Appel was no longer moving. But that testimony is disputed and therefore should not have been credited for purposes of the motion for judgment, Gould said in a footnote. 

The defense contended that Appel died of natural causes, as concluded by its expert, an emergency physician who said the attorney suffered a heart arrhythmia. The plaintiff countered with testimony of two pathologists, including the coroner who examined Appel’s body, who said he died as a result of excessive force. 

Wright, in granting the motion, questioned whether the coroner had “really gone to medical school” and said Appel’s high blood pressure readings could only be consistent with a finding of natural death. He also cited his own experiences as a street fighter in concluding that the deputies’ version of the struggle was the only credible one. 

The judge overstepped his bounds, Gould said. 

“The record suggests that the judge’s personal experience and not the testimony viewed in the light most favorable to Krechman led the court to conclude that ‘everything that the officers did...while attempting to get that other hand handcuffed was not excessive and was clearly warranted by the circumstances.’”

The case is Krechman v. County of Riverside, 12-55347.



The Court Report

LAPD Reserve Officer Not Employee Under FEHA—Court

Reprinted from the Metropolitan News-Enterprise, July 25, 2013

A volunteer reserve police officer is not an employee of the agency that he or she serves, within the meaning of the Fair Employment and Housing Act, even if covered by workers’ compensation as a matter of local policy, the Court of Appeal for this district ruled yesterday. 

Div. Three affirmed the dismissal of Frank Estrada’s suit against the City of Los Angeles. Estrada was an LAPD reserve officer for 17 years before he was terminated, ostensibly for having “inappropriately” sold a prescription drug through his nutritional supplement company. 

Estrada, whose business was raided by the Food and Drug Administration shortly before his termination, claimed the department used the drug accusation as a pretext, and that he was really let go because he had been injured on the job and was receiving workers’ compensation benefits. 

As a reserve officer, Estrada received no salary, but was provided with a uniform, equipment, and an expense allowance. The city’s administrative code specifies that reserve officers receive those benefits but otherwise “serve gratuitously” and are not deemed to be, city employees, except for workers’ compensation purposes. 

Reserve officer applicants must acknowledge in writing that they will not receive a salary or other “compensation for services rendered.”

No Jury
Los Angeles Superior Court Judge Charles Palmer tried Estrada’s suit without a jury and ruled that he could not recover because he was not an employee for FEHA purposes. 

Presiding Justice Joan Dempsey Klein, writing for the Court of Appeal, said uncompensated volunteers are not employees under prior Court of Appeal rulings, including Mendoza v. Town of Ross (2005) 128 Cal.App.4th 625. 

The plaintiff in that case was an uncompensated volunteer community service officer for a local police agency. The First District Court of Appeal ruled that because he was not “appointed” to the position, was not hired under express or implied contract, and was not an apprentice, and because there was no case law or public policy treating such persons as employees, he could not claim that the abolition of his position constituted compensable discrimination.

While the plaintiff’s department-issued identification card described him as having been appointed as a CSO, the court held, the controlling law was a local ordinance limiting “appointed” employees to those selected by the town council. 

The court also noted that the plaintiff was excluded from workers’ compensation coverage as a public agency volunteer.

Earlier Case
Klein also cited Shephard v. Loyola Marymount Univ, (2002) 102 Cal.App.4th 837, in which the court rejected a basketball player’s contention that she was an employee of the university and could sue for racial discrimination based on the revocation of her scholarship.

The court there cited the language of FEHA and its implementing regulations, as well as NCAA bylaws prohibiting athletes from being paid and workers’ compensation law excluding student athletes from coverage.

Similar cases in other jurisdictions, Klein noted, have held that volunteer firefighters, unpaid interns, and athletes who receive no salary for participation are not employees for purposes of state and federal job discri¬m¬ination statutes. 

The presiding justice acknowledged that Estrada’s case was “unlike Mendoza or Shephard” in that the courts in those cases held that the plaintiffs were not employees under either FEHA or the workers’ compensation statutes. Estrada, on the other hand, benefited because Los Angeles, as a charter city, expressly treats reserve officers as employees for workers’ compensation purposes.

“However, the consequence of this policy decision by the City is not to convert these uncompensated volunteers into municipal employees for all purposes,” the jurist wrote. “The fact the City provides volunteer reserve officers with workers’ compensation benefits if they sustain industrial injuries does not change the fact they serve without remuneration. The City’s workers’ compensation benefits, similar to the recurring $50 reimbursement for a volunteer’s out of pocket expenses, simply serve to make a volunteer whole in the event the volunteer were to sustain injury while performing his or her duties.”

The appeal was argued by Cheryl Konell Ruggiero for the plaintiff and by Deputy City Attorney Paul L. Winnemore for Los Angeles. 

The case is Estrada v. City of Los Angeles, 13 S.O.S. 3764. 



Public WiFi

Risk Management Solutions

Q&A – Public WiFi

by Jim Gross, Risk Manager

Q. We plan to begin offering public WiFi at our Library, and at the Senior/Community Center. What steps, if any, should be taken to mitigate any liability exposures associated with providing public WiFi?

A. The Authority has developed Website Resources to mitigate liability exposures associated with use of a member’s website. The Authority’s Website Resources can be downloaded from The Authority’s online Resource Center, at: https://cjpia.sabanow.net/Saba/Web/Main, and include things like a Privacy Policy and Terms and Conditions statement. 

With regard to public use of public WiFi, legal counsel has advised that similar steps are not necessary as a condition of the public using public WiFi. However, public agencies providing public WiFi should be aware that in 2000 Congress enacted The Children’s Internet Protection Act (CIPA) to address concerns about children’s access to obscene or harmful content over the Internet. CIPA imposes certain requirements on schools and libraries that receive discounts for Internet access or internal connections through the E-rate program, a program that makes certain communications services and products more affordable for eligible schools and libraries. 

In early 2001, the FCC issued rules implementing CIPA and provided updates to those rules in 2011. CIPA requires recipients of service discount under the E-rate program to certify that they have an Internet safety policy that includes, among other safeguards, technology protection measures that block or filter Internet access to pictures that are obscene, child pornography, or harmful to minors. The system must also monitor online activities of minors, must provide for educating minors about appropriate online behavior, including interacting with other individuals on social networking websites and in chat rooms, and cyberbullying awareness and response. 

You can find out more about CIPA or apply for E-rate funding by contacting the Universal Service Administrative Company’s (USAC) Schools and Libraries Division (SLD). SLD also operates a client service bureau to answer questions at 1-888-203-8100 or via email through the SLD website.

As the number of hotspots grows, so do the security risks for users. Because WiFi signals are radio waves, anyone within range of a public WiFi network can listen in on what users are sending and receiving. Unlike home WiFi networks, the vast majority of public WiFi hotspots don’t encrypt the data being transmitted through them. When you connect to a hotspot, everything from your email and your bank account and credit card information to your social media content may be fair game for hackers. 

The 2013 Identity Fraud Report released by Javelin Strategy & Research found that the number if identity theft victims increased to 12.6 million consumers last year. According to the report, smartphone and tablet users were constant targets of cyber criminals using malware and phishing exploits and compromising unsecured WiFi connections to steal users’ sensitive information.

Therefore, The Authority recommends that policies be established prohibiting staff from using public WiFi for agency business, for these reasons. Agencies that wish to provide WiFi for staff use are strongly encouraged to establish a separate, secure WiFi network for agency business.