February 2014 - Issue 24

Carl Warren & Company Audit

Parks and Recreation Academy

19th Annual Risk Management Educational Forum

To Document or Not to Document: Life After Poole v. Orange County Fire Authority

EEOC Releases FY 2013 Enforcement and Litigation Data

New Immunities for Public Dog Parks

Cyber Liability Isn't Just Targeted at Retailers

Change in Property Claim Handling

News: Worthy

Carl Warren & Company Audit

by Paul Zeglovitch, Liability Program Manager

Annually, the Authority conducts an independent, third party audit of the general liability claims program administered by Carl Warren & Company (Carl Warren). For 2013 it was decided that a new auditing firm would be selected not only to gain a fresh perspective on Carl Warren's claims handling but also to complete a more thorough audit of claims operations as a whole. After interviewing perspective vendors, staff selected Independent Consulting and Risk Management Services (ICRMS).

The audit took place during the period of August 5-12, 2013 in the offices of Carl Warren & Company in Placentia. ICRMS brought a team of three individuals to include Mark Nestor, President; Jill Lewis, Vice President; and Robert Sullivan, Sr., Claims Consultant. Jill and Robert conducted the hands-on claims audit of 100 liability files, an increase of 35 files from last year. Mark Nestor conducted interviews of several staff members, compiled voluminous documentation regarding claims trends, contracts, best practices, quality control, coverage, and other areas of interest. 

We are pleased to advise that the overall average score, over nine categories, was 90%. 

The auditors also provided recommendations for improved processes to include monthly file counts being provided to the Adjusters, conducting yearly file reconciliations, and the formation of a reinsurance/excess insurance reporting tracking mechanism. Staff and Carl Warren are currently working to integrate these recommendations. 

This audit provided yet another layer of confirmation that the Authority's liability claims are being managed at a high level by Carl Warren & Co. 


Butch DeFillippo

News: Worthy

Parks and Recreation Academy

The California JPIA Parks and Recreation Academy was held February 4 – 6, 2014 at the Saguaro Hotel in Palm Springs. Butch DeFillippo, managing partner with PlaySafe, LLC and his team facilitated the three-day academy which consisted of eleven sessions designed for parks and recreation directors, managers, and supervisors. 

"People come from a variety of communities and programs, so their perspectives and challenges vary greatly. The Academy audience also reflects a range of experience levels, from seasoned professionals to people who are just starting to investigate the park and recreation profession," reflected DeFillippo. With that in mind, the core curriculum for the Academy provided participants with strategies for developing new programs and evaluating existing ones, staffing, overseeing special events, and providing safe environments in parks and aquatic centers. Sessions included:

  • Parks and Recreation Risk Management
  • Making Playgrounds Fun and Safe: Defending Your Agency Against Playground Litigation
  • Preparing a Parks and Recreation Master Plan: Protecting Citizens Now and In the Future
  • Public Input Process: How to Get it Right
  • Safe Facilities: Conducting a Facilities Risk Review
  • Emergency Plans That Work
  • Recreation for Tomorrow and Creating an Action Plan
  • Contracts and Joint Use Agreements
  • Today's Aquatics Facilities

25 participants representing nineteen agencies attended the specialized academy.
Peggy Lacayo with the City of San Clemente shared, "The academy was a comprehensive assessment of responsible and safe parks and recreation operations with innovative and new trends reviewed." Lisa Litzinger with the City of Lakewood said, "I have been in the field of recreation for forty years and every time I attend the Parks and Recreation Academy, I learn something new. The academy includes up to date topics and knowledgeable speakers." 

For more information about the Academies offered by the California JPIA, please contact Michelle Aguayo, Administrative Assistant, at maguayo@cjpia.org

* Photo: Butch DeFillippo, managing partner with PlaySafe, LLC



19th Annual California JPIA Risk Management Educational Forum

News: Worthy

19th Annual Risk Management Educational Forum

The California JPIA is proud to present its 19th Annual Risk Management Educational Forum to be held at The Fess Parker Resort in Santa Barbara from October 29 - 31, 2014. This year's theme, Ride the Wave of Risk Management, highlights the impact of individual and collective action that lead to effective enterprise risk management. The event will include the recognition of the career risk management efforts of one member employee with the Annual Capstone Award. Registration is free to California JPIA members. Lodging scholarships will be available on a limited basis. Non-member registration fee is $350.00. Registration will open in late spring. Mark your calendars now to be part of this year's event.

"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." 

Participants at last year's forum had this to say:
"Congratulations to each and every staff member on a great conference. I look forward to this conference every year. I consider it great use of my time. Everything is well thought out, well planned...excellent!!"

"I appreciate that the entire Forum is self-contained - educational sessions, food, interaction time, and hotel arrangements are all right there, easy to access and well done."

"I have really valued the education I have received at these Forums. Thank you."

"It is great to see how involved the JPIA staff is with this effort. I truly feel the commitment and dedication of our risk manager when we interact at this conference. Thanks for all you do!"

"This is one of the more informative and beneficial conferences our staff attends. Always a lot of discussion in house when we return with information learned. Interesting networking with the attendees which included many law firms this year."

Mark your calendars now. Ride the Wave of Risk Management, October 29-31, 2014 at The Fess Parker Resort in Santa Barbara.



Legal Matters

Legal Matters

To Document or Not to Document: Life After Poole v. Orange County Fire Authority

by Timothy L. Davis and Kelly A. Trainer
Burke, Williams & Sorensen, LLP

The Firefighters Procedural Bill of Rights Act ("FBORA") and the Public Safety Officers Procedural Bill of Rights Act ("POBRA") set forth a number of procedural protections for firefighters and peace officers. One such protection involves a covered firefighter's and police officer's ability to comment on adverse comments maintained by fire or police departments. The two statutes are virtually identical on this protection and are set forth below: 

Firefighters Procedural Bill of Rights Act Public Safety Officers Procedural Bill of Rights Act
Gov. Code §3255. A firefighter shall not have any comment adverse to his or her interest entered in his or her personnel file, or any other file used for any personnel purposes by his or her employer, without the firefighter having first read and signed the instrument containing the adverse comment indicating he or she is aware of the comment. However, the entry may be made if after reading the instrument the firefighter refuses to sign it. That fact shall be noted on that document, and signed or initialed by the firefighter. Gov. Code §3305. No public safety officer shall have any comment adverse to his interest entered in his personnel file, or any other file used for any personnel purposes by his employer, without the public safety officer having first read and signed the instrument containing the adverse comment indicating he is aware of such comment, except that such entry may be made if after reading such instrument the public safety officer refuses to sign it. Should a public safety officer refuse to sign, that fact shall be noted on that document, and signed or initialed by such officer.
Gov. Code §3256. A firefighter shall have 30 days within which to file a written response to any adverse comment entered in his or her personnel file. The written response shall be attached to, and shall accompany, the adverse comment. Gov. Code §3306. A public safety officer shall have 30 days within which to file a written response to any adverse comment entered in his personnel file. Such written response shall be attached to, and shall accompany, the adverse comment.

In Poole v. Orange County Fire Authority (2013) 221 Cal.App.4th 155, the California Court of Appeal, Fourth District, provided guidance on FBORA's provisions on adverse comments in the form of notes being maintained by a supervisor for the purpose of preparing an annual performance evaluation at a later date. The Orange County Fire Authority ("OCFA") maintains official personnel files at OCFA headquarters in Irvine. It was the practice of Poole's Fire Captain to maintain a file (both an electronic flash drive and paper notes) on each firefighter he supervised at the fire station. The Captain's "daily logs" documented the activities of the firefighters, and he used them in preparing performance evaluations. 

In 2009, the Captain rated Poole as substandard in his annual performance evaluation, and placed him on a performance improvement plan. Before placing Poole on the performance improvement plan, the Captain discussed the daily logs with his Battalion Chief because he believed "the daily logs contained incidents indicating concern..."1 Additionally, the case noted that the Captain did not include all of the adverse comments he maintained in his daily logs about Poole in the evaluation.

Poole was not provided with any of the comments in the electronic file or paper file until he received his annual evaluation. He only learned of the full contents of the daily logs when his union representative requested them. The daily logs contained more than 100 entries which noted many areas where Poole needed to improve his performance. 

After learning the contents of the file, Poole submitted a written request to OCFA demanding that all the adverse comments in this file be removed. OCFA refused to remove them on the grounds that the comments in the Captain's file were not subject to FBORA "in part because 'while the notes were intended to be used for personnel purposes, they were never 'entered' into any file' as required by section 3255."2 Specifically, OCFA noted that the notes were not part of Poole's official personnel file. OCFA also noted that the comments that were in his official file were in the performance evaluation which he had the opportunity to review and respond to before it was placed in his personnel file.

Poole and the Orange County Professional Firefighters Association ("OCPFA") sought a writ of mandate directing OCFA to comply with section 3255, which the Superior Court denied. The Superior Court found that the daily logs were kept only to assist the Captain in preparing Poole's annual evaluation, were not part of his personnel file, and were not subject to the adverse comment requirements in FBORA. The Superior Court analogized the daily logs to "Post-it notes he used to remind himself of something."3 

However, the Court of Appeal disagreed. Relying on case law decided under the POBRA, the court stated that "the general purpose of the provision granting a firefighter the right to review his or her personnel file and to comment on any adverse comment 'is to facilitate the [firefighter's] ability to respond to adverse comments potentially affecting the [firefighter's] employment status.'"4 In this case, there was no dispute that the daily logs were used for personnel purposes and the court was not persuaded that a different result should be provided simply because the notes where not in Poole's official file. Even though the decision was made under FBORA, the Court of Appeal relied heavily on POBRA cases to make its decision, and as a result, it is reasonable to assume that the same standard applies to peace officers especially since the statutory language of the two acts is the same.5 

Consequently, as a result of Poole, police and fire departments need to evaluate their current recordkeeping practices. It is a very common practice for supervisors to maintain "unofficial" files that the supervisor uses later for performance evaluations. These files take a variety of forms – paper files, electronic daily logs, notes to file, watch commander logs, notes in a calendar, emails to oneself, and countless others. Maintaining this information serves an important role for supervisors – it enables them to provide specific factual detail which is needed in performance evaluations. In light of Poole, police and fire departments will need to determine whether and how to maintain this information. There are two options available to police and fire departments: (1) prohibit supervisors from maintaining these informal files; or (2) require supervisors to comply with the adverse comment rules and disclose the contents of the informal files in accordance with the FBORA and the POBRA.

As mentioned above, maintaining this information serves an important role, and it would not be in the best interest of a police or fire department to cease the practice of maintaining information for future evaluations. Should this option be selected, the direct consequence would be low quality performance evaluations that lack sufficient detail or worse facts are stated inaccurately due to poor supervisor recollection. Most supervisors are unable to recall in detail examples of good and bad performance over a 12-month period and the number of direct reports will only increase this problem. As a result, the performance evaluations they write may be vague or focus on the most recent performance, rather than the entire evaluation period. This is not a good practice because it does not provide the employee with appropriate feedback and guidance on performance and expectations, which is unfair to the employee. Further, in the event of future discipline, grievances, appeals, or lawsuits involving performance issues, such an evaluation would not be useful or persuasive, and would possibly provide harmful evidence.

One of the concerns raised by keeping these daily logs and complying with the adverse comment requirements is the firefighter's and police officer's ability to comment on these files before the supervisor has made an assessment as to whether the deficiencies noted are worthy enough to be commented on in the annual evaluation. This will no doubt lead to more administrative paperwork which is time consuming. As such, there will need to be some judgment calls made on what is important enough to note and potentially go through the adverse comment process. For example in Poole, some of the comments involved fairly minor infractions, such as Poole not turning in his pager or not putting all his gear away at the end of the shift. On the other hand, some of the comments involved more severe issues such as Poole failing to accept responsibility for hitting a coworker with a pike pole and having a panic attack during a training exercise. For the more severe issues, the increased administrative work associated with complying with FBORA seems appropriate and reviewing the writing contemporaneous with the event provides the best training to improve performance. 

Therefore, the best option for police and fire departments should consider how they can implement the adverse comment rules for informal files on performance. Some potential options would include:

  • Development of a form to document both good and bad performance that includes a section for the employee to acknowledge receipt and provide a response before the form is retained.
  •  Mandatory performance meetings that occur at a set interval between a supervisor and subordinate, which will include a list of both good and bad performance that has been observed or reported during the established period of time.
  • A policy that requires supervisors to provide a copy of any adverse comment intended to be entered into an informal file and obtain the employee's signature before placing it in the file, and permitting the employee to file a response.

Departments are reminded that any such changes likely trigger the obligation to meet and confer with labor organizations before implementing changes to these recordkeeping programs. It is also suggested that in addition to considering how to create these records, agencies should also consider how they will be maintained after the evaluation has been completed, or if they will be routinely destroyed after the evaluation.

Id. at 158.
Id. at 159.
Ibid.
Id. at 163.
The OCFA filed a petition for review with the California Supreme Court on December 17, 2013, which was answered by Poole and the OCPFA on January 2, 2014. After the OCFA files its reply to the answer, the Supreme Court has at least 60 days to decide whether it will hear the case. Supreme Court review is rare because the court only grants review in 4 to 5 percent of cases where a petition for review is filed. It is possible that Poole could be overturned by the Supreme Court. While it is difficult to predict when the Supreme Court will grant review of a decision, it seems unlikely that the Supreme Court would overturn the decision because Poole decision was well-reasoned and consistent with prior POBRA decisions. As such, it is our recommendation that police and fire departments adhere to the provisions of the Poole decision.


Legal Matters

EEOC Releases FY 2013 Enforcement and Litigation Data

(Press Release from the EEOC, February 5, 2014)


Statistics Provide Detail Concerning Record Monetary Relief; Charge Receipts and Litigation


The U.S. Equal Employment Opportunity Commission (EEOC) today released a comprehensive set of fiscal year 2013 data tables showing that the agency obtained the highest monetary recovery in agency history through its administrative process, increasing by $6.7 million to $372.1 million. The data tables also provide detailed breakdowns for the 93,727 charges of workplace discrimination the agency received. The fiscal year runs Oct. 1 to Sept. 30.

The fiscal year 2013 enforcement and litigation statistics, which include trend data, are available on the EEOC's website at http://www.eeoc.gov/eeoc/statistics/enforcement/index.cfm.
 
"The data released today reflects the commitment of the men and women of the EEOC to fulfilling our vision of achieving justice and equality in the nation's workplaces," said EEOC Chair Jacqueline A. Berrien. "This work is particularly noteworthy given the extraordinary fiscal constraints and operational challenges in fiscal year 2013."

The 93,727 charges received in fiscal year 2013 are a 5.7 percent decrease from the 99,412 charges received in fiscal year 2012. As in previous years, retaliation under all statutes was the most frequently cited basis for charges of discrimination, increasing in both actual numbers (38,539) and as a percentage of all charges (41.1 percent) from the previous year. This was followed by race discrimination (33,068/35.3 percent); sex discrimination, including sexual harassment and pregnancy discrimination (27,687/29.5 percent); and discrimination based on disability (25,957/27.7 percent). Both race and disability discrimination increased in percentage of all charges while decreasing in raw numbers from the previous year, while charges of sex discrimination decreased by over 2,600 charges.

For the fourth year in a row, the EEOC resolved more charges of discrimination than it took in, despite sequestration which caused the agency to furlough its entire workforce for 40 hours, freeze hiring and reduce its budget for litigation, information technology, travel and contracts for services, among other things.

In fiscal year 2013, the EEOC filed 131 merits lawsuits alleging discrimination. Lawsuits filed under Title VII of the Civil Rights Act of 1964 were the most numerous (78), followed by lawsuits filed under the Americans with Disabilities Act (51). During the fiscal year, the Commission resolved 209 merits lawsuits, resulting in $39 million in monetary benefits to victims of unlawful discrimination, plus wide-ranging injunctive relief, tailored to the particular issue in the lawsuits.

As part of its Open Government efforts and in response to requests for this data, the Commission issued a new table this year showing "Basis by Issue"-in other words, what sorts of discriminatory actions were alleged to violate the different sections of the laws enforced by the EEOC. This expands on the table "Statute by Issue" first released last year. Now, for example, readers can drill down beyond allegations of hiring discrimination under Title VII, shown in the Statute by Issue table, to discover how many of those hiring allegations were due to race, sex, national origin etc. The most frequently cited issue under all statutes was discharge, followed by terms and conditions of employment, and harassment.

The EEOC enforces federal laws prohibiting employment discrimination. Further information is available on its website at www.eeoc.gov.


Risk Solutions

New Immunities for Public Dog Parks

by Jim Gross, Risk Manager

Existing law makes the owner of any dog civilly liable for the damages suffered by any person who is bitten by the dog while in a public place or lawfully in a private place, as specified, regardless of the former viciousness of the dog or the owner's knowledge of such viciousness. Existing law governs the tort liability and immunity of, and claims and actions against, a public entity (including, but not limited to, a city, county, city and county, district, and any other political subdivision). 

AB 265 provided that a public entity, as defined, that owns or operates a dog park shall not be held liable for an injury or death of a person or pet resulting solely from the actions of a dog in the dog park. 

The Governor approved AB 265, effective January 1, 2014, which amended the Government Code adding Section 831.7.5. The government code now provides new immunities to public agencies that were hesitant to provide off-leash parks on the basis of potential liability arising from dog bites. 

831.7.5.

(a) A public entity that owns or operates a dog park shall not be held liable for injury or death of a person or pet resulting solely from the actions of a dog in the dog park.

(b) This section shall not be construed to affect the liability of a public entity that exists under the law.

(c) "Public entity" has the same meaning as Section 811.2, and includes, but is not limited to, cities, counties, cities and counties, and special districts.

Many members own and operate dog parks, while others are currently considering the development of new dog parks. The Authority has developed Guidelines for the Design, Construction, and Operation of Dog Parks. This resource is available in the Authority's online Resource Center at https://cjpia.sabanow.net/Saba/Web/Main


Coverage Matters

Cyber Liability Isn't Just Targeted at Retailers

by Jim Thyden, Insurance Programs Manager

Not many years ago, the term "cyber liability" seemed to apply to high-tech, Silicon Valley-type companies, neck-deep in cutting edge computer technology and the expansion of the use of the internet. Even in recent news, we tend to attribute cyber breaches and hackers to big retail companies. 

For the local public entity, this type of exposure did not seem to apply as much. But you are likely hearing more examples of public entities having cyber-related issues like: 

  • An employee's laptop is stolen containing personal information of taxpayers (social security numbers, credit card numbers, etc.)
  • The billing system of an entity is hacked, exposing an unknown number of accounts

In fact, according to the Privacy Right Clearinghouse, there have been over 600 government data breaches in the past 8 years. 

Cyber liability has grown to basically encompass any entity with a computer network, with any type of technology (computer, laptop, smart phone) and/or holding digital/electronic information. If you are collecting any personal information on your computers or systems, you are exposed. 

In addition to cyber threats impacting more municipalities, the State of California recently expanded the information privacy breach notice law to include all public agencies. This is Assembly Bill 1149 and Senate Bill 46, which took effect on January 1, 2014, and prior to this, local public agencies were not subject to these notification requirements. The bottom line of AB 1149 and SB 46 is: encrypt any personal data you hold, control or manage.

As a member of the Authority, you have invaluable tools available to you in addressing this exposure, starting with the new Authority's Cyber Liability Program, as well as the risk management procedures being developed by the Risk Management Division. The recent coverage expansion created by the Authority for this exposure includes: 

a. Privacy Liability 
b. Privacy Regulatory Claims coverage
c. Security Breach response coverage
d. Security Liability
e. Media Liability

If we were to translate these coverage areas into questions, they would be: 

a. Did you fail to protect someone's privacy, via the data you hold/control? 
b. Did you know that California has statutes to require you to disclose data breaches of personal information? 
c. Do you know what to do after a security breach, and what the costs could be? 
d. Did you fail to protect the security and confidentiality of records or information in your possession? 
e. Did your online media or advertising activities lead to libel, slander, plagiarism, invasion of privacy (to name only a few)? 

Aside from the natural desire of any entity to live up to its fiduciary responsibility of protecting personal data/information in its possession, and avoiding the potential for liability, the costs associated with any incident (breach, attack, etc.) can be substantial. And the impact of a virus or breach can be paralyzing to operations.

The Authority has implemented coverage to protect you for these developing cyber exposures. Additionally, we are in the process of developing key risk management procedures to assist you in protecting the information in your possession, by following accepted procedures. This will not prevent all adverse incidents related to cyber liability, but they will reduce your risk. Your risk manager is available to discuss this topic further.

Coverage is obtained through insurance carrier Brit Global Specialty, and it covers claims over $50,000. It is written as reinsurance, meaning a Memorandum of Cyber Liability Coverage was created and will be available for members in early March.

In addition to creating this coverage, an endorsement has been added to the Memorandum of Liability Coverage making the coverage provided in the Liability Protection Program, which is pooled by members, excess to the coverage provided by the Cyber Liability Program.

For any questions, please contact the Authority's Insurance Programs Manager Jim Thyden at jthyden@cjpia.org or (562) 467-8784.


Coverage Matters

Change in Property Claim Handling

by Jim Thyden, Insurance Programs Manager

Ron Elbling has been associated with the Authority's property claims for 20 years. In that time the program has grown tremendously and he has seen just about any kind of claim. Effective February 3, 2014, Ron joined VeriClaim Adjusting Company. Ron's staff, which consists of Joanne Garcia, Robert Jones, Nick Richardson and Steve Grutzmacher will be joining him with VeriClaim as well.

Over the years many members have gotten to know Ron, while lately members who have vehicles losses work primarily with Joanne, who has been involved with the program in many capacities. For the last three years Joanne has been handling the vehicle and small property loss. New to the team is Bob Jones, a forensic accountant. One of Bob's primary responsibilities is to make sure all expenses are identified and recovered in all property claims. Also joining the group is Steven Grutzmacher, who is also an accountant, but in the process of being trained as a property adjuster. Nick Richardson is an accountant who assists Bob preparing the schedules and reports.

Claim handling procedures will remain the same and while his phone numbers will not change, his new email address is relbling@vericlaiminc.com.

Please continue to report claims online through the Authority's website at http://www.cjpia.org/protection/report-a-claim.

If you have any questions regarding the Authority's Property Program or claim handling, contact Jim Thyden, Insurance Programs Manager at the Authority at jthyden@cjpia.org or (562) 467-8784.