March 2014 - Issue 25

Farewell to Bob May

Participant Waiver Execution and Retention

Insurance Requirements for Fireworks Shows

Tuberculosis (TB) Testing of Recreation Employees

High Court to Hear Dispute Over Firefighter's Notes

Notice Required Each Time City Installs Red Light Cameras—S.C.

Bob May

News: Worthy

Farewell to Bob May

After nearly seven years of service, California JPIA Risk Management Program Manager, Bob May, announced his retirement in February. 

"My tenure with the Authority was very informative. I learned new concepts in risk management. The LossCAP program is the hallmark of the Authority's operations. Those members who have embraced the program have seen a direct benefit in reducing risk exposures. The regional risk management model has proven itself in helping the members in managing risk."

"I was blessed to be hired by the Authority. The Authority's work culture is remarkable. Service to the members is the priority among staff. The Executive Committee was very supportive and provided the guidance necessary to allow us to do our jobs. Seeing positive outcomes from difficult situations was always gratifying knowing you helped frame the right decision," reflects May who joined the Authority in August 2007 as a Risk Manager.

May plans to spend his newfound time finishing a few household projects and prepare his garden for spring plant. "I am looking forward to spending time with my grandchildren, Pressley, Hadley, and Jake" says May, a very proud grandfather, "and of course spending time with my wife is at the top of the list." An avid motorcycle enthusiast, May plans to take a few road trips on his bike and travel throughout California.

"Bob's contribution to the risk management program has been extraordinary," says Jon Shull, Chief Executive Officer, "his service to the members has been steadfast. We will miss him."

Join us in sending our best wishes to Bob May.



Legal Matters

Legal Matters

Participant Waiver Execution and Retention

by Paul Zeglovitch, Liability Program Manager

Although member agencies provide year-round recreational opportunities to their residents, spring is a good time to revisit policies and procedures as we head toward the busy summer season. Participant waivers should be at the top of your agency's list when it comes to good risk management practices in recreation and public programs. 

Now is the time to explore questions regarding the use of waivers or the content of your agency's waiver form. Take this opportunity to either create or review your waiver and compare it against the template that is available through the Authority's Resource Center. The language contained within the waiver is key and should include, but not be limited to, the following:

  • A description and location of the activity to include any field trip locations. This information will remove any confusion as to what activities the waiver is releasing and where.
  • A time period for the activity, not to exceed one year. Sound practice is to conduct renewals of the agreement that will be more current and applicable should they be needed in litigation

The recommended release and indemnity language recommended can be found within the Authority's Participant Waiver and Release document (Resource Center; keyword participant waiver). 

In addition to the information above, it is important to have the waiver properly executed. That may seem obvious, but when minors are involved it becomes more important. Have the verbiage in the waiver specify that the signing party declares that they are a parent or legal guardian of the minor involved. It is also helpful if the signing party indicates what their relationship is to the minor. This can be accomplished through selecting grandparent, parent, legal guardian, step-parent or "other" (please explain). We recommend obtaining wet signatures when possible, however when using electronic forms, secure any information available regarding the origin of the online submission and retain that information, along with the form. 

The retention of waivers is just as important as obtaining them. These waivers are a critical piece of information in formulating a litigation defense for your agency. Having them in an organized, easy to locate format is important. Computer retention is best from an organizational and space standpoint, however if that is not possible due to workload, there should be an indexing system for the paper files that is easy to understand (by more than one employee) and follow. We recommend retention of these records for three years from the date of signature and urge your agency to amend your document retention policy accordingly. 

In the recent California JPIA wrongful death case of Chavez v. Santa Fe Springs the City's waiver served to provide the basis for the jury rendering a defense verdict! Jurors interviewed after the trial indicated that while they did have liability concerns, they felt they had to "follow the law" and honor the waiver. By law, waivers should only be overlooked by juries when they are obtained via fraudulent means or where gross negligence is present. Fortunately, the jury found neither in the Chavez matter.

If you have questions or need additional assistance regarding participant waivers, please contact your assigned Risk Manager.


Risk Solutions

Insurance Requirements for Fireworks Shows

by Paul Zeglovitch, Liability Program Manager

The 4th of July holiday will be here before you know it, and many members will once again be hosting fireworks shows, a tradition that is celebrated by residents. Member agencies are likely in the planning stages or will be very soon. Over the years, there have been some devastating accidents in California during these publicly hosted shows. In 2004, a fourteen-year-old in Marysville, California was seriously injured while watching the city's July 4th fireworks show, resulting in the amputation of her leg. In 2013, a Simi Valley fireworks show turned into chaos when a large firework shell failed to launch properly, and sparked a chain reaction of other fireworks that showered the crowd with debris and fireworks projectiles. In all, 28 people were injured with 20 of those requiring immediate attention at local hospitals. There have been numerous other incidents state- and country-wide, raising concern by agencies that host the shows. 

It is widely accepted practice for public agencies to contract with a pyrotechnic company to provide the fireworks, set up the launch area and conduct the show, to include the lighting and launching of the explosives. When contracting with a pyrotechnic company, it is imperative to review the contract language carefully. If the contract language is not favorable to your agency or in some cases doesn't even mention insurance or indemnity, recognize this is a significant red flag. Demand the favorable language be included in the contract and enlist the assistance of your assigned Risk Manager, prior to moving forward. 

As it relates to insurance requirements, until recently, public agencies were generally asking pyrotechnic companies to provide one to two million dollars in insurance coverage, naming the entity as an additional insured. Due to the increase in significant adverse events, the California JPIA has taken a close look at what we recommend to member agencies as it relates to coverage. We have learned that other public agency risk pools have also examined this subject and one is subjecting its membership to increased self-insured retentions where at least five million dollars in coverage is not obtained from the vendor.

While the California JPIA does not have a self-insured retention for this coverage, nor are we currently recommending that one be adopted, we do share in urging our members to obtain five million dollars in coverage from pyrotechnic vendors when negotiating their next July 4th show. With the costs of litigation and the large jury verdicts we see in California, it is foreseeable that a major catastrophe at one of these shows could result in several major injuries or deaths and multiple less severe injuries within one event. When all of those claims are adjudicated, the cost could easily reach or exceed one to two million dollars in coverage the members may be requiring. 

For more information on fireworks shows, insurance requirements and potential liability, please contact your assigned Risk Manager



 

Risk Solutions

Tuberculosis (TB) Testing of Recreation Employees

by Maria Galvan, Risk Manager

Recently, the Authority received an inquiry on whether Recreation employees were required to be tested for Tuberculosis (TB). The California Public Resource Code, Section 5163 (a) states:

5163. (a) No person shall initially be employed in connection with a park, playground, recreational center, or beach used for recreational purposes by a city or county in a position requiring contact with children, or as a food concessionaire or other licensed concessionaire in that area, unless the person produces or has on file with the city or county a certificate showing that within the last two years the person has been examined and has been found to be free of communicable tuberculosis.

Many local agencies already follow the state requirement and pay for testing of their employees that fall under the recreational purposes categories. Others agencies refer employees to their healthcare provider for testing and provide reimbursement for the cost. Local Public Health Centers may provide testing free of cost. 

The code goes on to state:

(b) Thereafter, those employees who are skin test negative shall be required to undergo the foregoing examination at least once each four years for so long as the employee remains skin test negative. Once an employee has a documented positive skin test which has been followed by an X-ray, the foregoing examination is no longer required and a referral shall be made within 30 days of the examination to the local health officer to determine the need for followup care.

Some agencies extend the state requirement to volunteers and contract instructors. The Authority's legal counsel looked into whether this was appropriate and permissible under the Public Recourse Code and was unable to find anything directly on point that says you can require TB testing of contract instructors. However, legal counsel believes the spirit and intent of the law is to have all persons coming into contact with children tested. Thus, counsel indicated that if you wish to test contract instructors it is advisable to request as a condition of the contract that the individual consent to TB testing in compliance with Public Resource Code 5163(a). The Authority recommends that you consult with your legal counsel on this matter before acting. 

The California Education Code requires certified or classified school district employees to provide proof that they are free of active TB. Although member agency employees are not school district employees, Section 49406 (f) (http://law.onecle.com/california/education/49406.html) of the Education Code does indicate:

The governing board may, however, require an examination described in subdivision (b) and may, as a contract condition, require the examination of persons employed under contract, other than those persons specified in subdivision (a), if the board believes the presence of these persons in and around school premises would constitute a health hazard to pupils.

Many member agencies have joint use agreements with local school districts and some districts may request proof that an agency's employees' have been tested and are free of active TB if their duties require contact with children. It is recommended that these types of agreements be reviewed to determine if providing proof of testing is required as a condition of the agreement. Medical information cannot be disclosed without the consent and knowledge of employees. To obtain consent, the Authority's legal counsel recommended obtaining a HIPAA release form or letter of acknowledgement signed by the employee agreeing that the TB test and results can be disclosed to the school district as required by the member agency's contract partner.

California Law consists of 29 codes, covering various subject areas, the State Constitution, and Statutes. The Public Resources Code was codified on April 26, 1939, and in the process, merged the supervision and regulation of natural resources, conservation, and utilization into one unified code. To access the Public Resources Code in its entirety, click here (http://www.leginfo.ca.gov/cgi-bin/calawquery?codesection=prc&codebody=&hits=20). If you have questions, contact your assigned Risk Manager.


The Court Report

High Court to Hear Dispute Over Firefighter's Notes

(Reprinted from the Metropolitan News Enterprise, March 3, 2014)

The California Supreme Court has agreed to decide whether a law requiring notice to firefighters before any adverse comments are entered into their personnel files applies to a supervisory captain's handwritten and computerized notes that were kept separate from official personnel files. 

The unanimous vote to hear the case, taken at the court's Wednesday conference in San Francisco, apparently means that the court will make its first decision interpreting the Firefighters' Procedural Bill of Rights, codified under Government Code §3255.

The law states in part:

"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. . . ."

The Fourth District Court of Appeal, Div. Three, ruled in Poole v. Orange County Fire Authority(2013) 221 Cal.App.4th 155 that the captain's notes were subject to disclosure. 

The suit was brought by Orange County firefighter Steve Poole against his employer, the Orange County Fire Authority. He claimed that he was unfairly evaluated by Fire Captain Brett Culp, who had been keeping daily notes on the performance of his subordinate. 

Culp said he maintained such files for use in preparing his annual evaluations that were required under a performance improvement plan. 

Poole said he was given a "substandard" rating based on Culp's notes, which were relayed to a battalion chief. After his evaluation, Poole contacted a representative with the Orange County Professional Firefighters Association who in turn demanded to see Poole's personnel file at the station house. 

An inspection of Poole's file revealed a wide variety of notes where Culp felt that Poole needed in improvement in his job performance. 

After learning of the notes, Poole made a written demand to the Orange County Fire Authority that all adverse comments about him in the station file be removed in accordance with his rights under §3255. The fire authority refused, arguing that Culp's notes were not part of Poole's personnel file and that "while the notes were intended for personnel purposes, they were never 'entered' into any file" and thus not subject to the provisions of §3255. 

Poole and the Orange County Professional Firefighters Association sued for damages, injunctive relief and a writ of mandate forcing defendant to comply with §3255.

A trial judge denied relief, concluding that Culp's notes were not part of Poole's personnel file and more akin to "Post-it notes" to help remind Culp of things to consider in preparing employee evaluations. 

The Court of Appeal reversed in an opinion by Justice Eileen C. Moore, who wrote:

"Because the daily logs on Poole's activities at work and kept in a file with his name on it were used for personnel purposes and were disclosed to superiors—again for personnel purposes—Poole was entitled to respond to adverse comments contained therein."

Moore likened the Firefighters Procedural Bill of Rights to similar protections afforded police and educators in California which apply to various forms of employment memoranda that are found outside of an employee's official personnel file. 

The justice said it was "evident the daily logs affected Poole's job status" and that daily logs kept in the fire station apart from his official personnel file were "used for personnel decisions," even though the plaintiffs' counsel admitted that if Culp had written the evaluation strictly from his memory, no lawsuit would have been warranted. 



The Court Report

Notice Required Each Time City Installs Red Light Cameras—S.C.

(Reprinted from the Metropolitan News Enterprise, March 14, 2014)

A state law requiring 30 days' notice to the public when a city installs red light cameras at an intersection applies each time the devices are put in place, not just the first time a particular city does so, the state Supreme Court ruled yesterday.

Justice Joyce L. Kennard, writing for a unanimous court, said the Court of Appeal for this district erred in accepting Culver City's argument that it fully complied with Vehicle Code §21455.5(b) by giving notice of its installation of what is officially known as an "automated traffic enforcement system" at the intersection of Washington Boulevard and La Cienega Boulevard in 1998. 

The statute says that "a local jurisdiction utilizing an automated traffic enforcement system shall commence a program to issue only warning notices for 30 days" and "shall also make a public announcement of the automated traffic enforcement system at least 30 days prior to the commencement of the enforcement program." 

But while rejecting the city's interpretation of the notice requirement, the high court affirmed Steven Gray's conviction for running a red light camera at the intersection of Washington Boulevard and Helms Avenue in November 2008.

No Prerequisite to Enforcement 
Kennard reasoned that the city's failure to comply with the statute is not a defense because the Legislature did not make compliance a jurisdictional prerequisite to enforcement. Nor can Gray claim that his due process rights were violated, the justice said, because he ran the light more than two years after the camera was installed, and was therefore outside the class of persons lawmakers intended to protect. 

Gray was found guilty by a Los Angeles Superior Court judge, and his conviction was affirmed by the Appellate Division and the Court of Appeal. The courts acknowledged conflict with an earlier Appellate Division decision, People v. Park (2010) 187 Cal.App.4th Supp. 9.

The city argued that the statutory reference to an enforcement "system" referred to the overall program of installing red light cameras. But that interpretation, Kennard said, is inconsistent with the usage of "system" elsewhere in the chapter. 

She wrote:
"For example, subdivision (a) of section 21455.5 states that '[t]he limit line, the intersection, or a place designated in Section 21455 . . . may be equipped with an automated traffic enforcementsystem . . . .' As used there, the word 'system' necessarily refers to the specific equipment in operation at a particular intersection, not to the entire citywide red light camera enforcement program." 

More Examples 
Kennard gave additional examples, such as the requirements that signs be posted "within 200 feet of an intersection where a system is operating," that cities locate "the system at an intersection," that the city perform certain other obligations at "an intersection at which there is an automated enforcement system in operation," and that installation of new cameras after Jan. 1, 2013 be supported by "a finding of fact establishing that the system is needed at a specific location for reasons related to safety." 

Kennard acknowledged that language elsewhere in the chapter could be read as supporting the city's interpretation. But legislative history shows the opposite, she explained. 

The justice was more favorable to the city's alternative argument that Gray was lawfully convicted under either interpretation. Unlike other sections of the Vehicle Code, such as the "speedtrap" law, the Legislature did not include language in §21555.5 suggesting that the consequences of a locality's noncompliance included a loss of the right to prosecute violators. 

"When, as here, a statute sets forth a procedural requirement but does not set forth any penalty for noncompliance, a party may reasonably question whether the statute is merely directory, not mandatory," she wrote. 

Kennard went on to say:

"Here, section 21455.5(b)'s requirement of a 30-day period of warning notices was for the benefit of those violators whose red light violations at the intersection in question occurred when the red light camera first became operational. Because the requirement lapsed, by its own terms, after 30 days, it could not have been for the benefit of a violator like defendant, whose red light violation at the intersection occurred more than two years later. Therefore, if the city had issued a citation to a driver during the 30-day period when it should have been issuing warning notices under section 21455.5(b), that driver could have challenged the citation on the basis of noncompliance with the statute. Defendant here, however, is not among the class of people that the 30-day period of warning notices was intended to benefit, and therefore he may not invoke the City's noncompliance with the warning notice requirement to invalidate his traffic citation."

The case of People v. Gray, 14 S.O.S. 1292.