April 2014 - Issue 26

Risk Managers' Roundtable: Preparing for a Black Swan Event

Legislative Update

Risk Solutions

California's Heat-Illness Rules in Spotlight Again

E-Records Sent From Private Devices and Accounts Are Not Public Records Under CPRA

Government Liability

News: Worthy

Risk Managers' Roundtable: Preparing for a Black Swan Event

In keeping with the Authority's tradition of presenting relevant training, the Authority is pleased to announce the Risk Managers' Roundtable: Preparing for a Black Swan Event webcast event on May 13, 2014 for all city managers, executives, risk managers, public works directors, and agency attorneys. 

Black Swans are defined as rare, random, and high-impact events and are characterized to be catastrophic and broad. Natural disasters such as flood, fire, earthquake, tornado, windstorm and ice storms can severely impact local government. While they pose obvious challenges to organizations, Black Swan events also can be viewed as an opportunity for risk managers to demonstrate appropriate planning and preparedness that serves to protect residents and other interests of government. Knowing the risks and being ready are the guiding principles to the management of Black Swan events. 

John Chino, Area Senior Vice President, and Robin Flint, Executive Director – Public Sector Practice Group from Arthur J. Gallagher & Company will present the live webcast from the Authority's campus in La Palma. Members may also view the webcast from three off-site locations: 

• San Luis Obispo County Library, 995 Palm Street, San Luis Obispo, 
• Agoura Hills City Hall, Community Room, 30001 Ladyface Court, Agoura Hills, 
• Palm Desert City Hall, 73-510 Fred Waring Drive, Palm Desert 

Lunch will be provided at all webcast locations. Members attending a viewing location should plan to arrive at 12:00 p.m. for lunch; the webcast will begin at 12:15 p.m. and wrap-up at 1:45 p.m. 

Please click here to register for the Roundtable. The deadline to register is May 1, 2014.

For additional information or questions about the Roundtable, contact Michelle Aguayo, Training Coordinator 562-467-8777 or maguayo@cjpia.org.



Legislative Update

by Jeff Rush, Workers' Compensation Program Manager

The 2014 legislative session is in full swing and Authority staff has been closely watching proposed bills for any beneficial or detrimental impact to the members. 

On April 2, Jeff Rush, Workers' Compensation Program Manager, joined members of the California Chamber of Commerce, the California Coalition on Workers' Compensation and the Workers' Compensation Action Network for the annual Workers' Compensation Legislative Day in Sacramento. The attendees at this event collectively visited the offices of over 60 legislators to advocate for a 'wait and see' approach with regard to workers' compensation issues. The 2012 reform (SB 863) is only about 18 months old and some erosions have already occurred with regard to anticipated employer savings. With these increasing costs in mind, the various employers appealed to the legislators to allow the reforms to develop without any additional increases in benefit costs.

On April 8, the California Association of Joint Powers Authorities (CAJPA) hosted its annual Legislative Action Day. Rush and Norm Lefmann, Assistant Executive Officer, joined with other public agency representatives and associate vendors from throughout the state to educate legislators and their staffs about bills that can significantly affect joint powers authorities and their members.

A wide variety of bills were discussed with legislators and their staffs including legislation pertaining to the Brown Act, inverse condemnation, and workers' compensation. CAJPA is also sponsoring a bill to allow for a study of a 20 year old program implemented by the California Highway Patrol in an effort to curb their workers' compensation costs. 

Many of the legislators visited as part of these events just took office last year so there is an opportunity to provide education on issues that may affect the Authority's members. A number of bills that the Authority supports and opposes are working their way through the legislative process so stay tuned as the session progresses.

  • AB 194 (Campos). Brown Act
    Position: Oppose

    The Ralph M. Brown Act requires, with specified exceptions, that all meetings of a legislative body of a local agency, as those terms are defined, be open and public and that all persons be permitted to attend and participate. The act requires every agenda for a regular meeting or notice for a special meeting to provide an opportunity for members of the public to address the legislative body on items being considered by the legislative body, as specified. The act authorizes a district attorney or any interested party to seek a judicial determination that an action taken by a legislative body is null and void if the legislative body violated certain provisions of the act. This bill would expand the authorization for a district attorney or interested party to seek a judicial determination that an action taken by a legislative body is null and void if the legislative body violated the requirement that every agenda for a regular meeting or notice for a special meeting provide an opportunity for members of the public to address the legislative body on items being considered, as specified.

  • AB 436 (Jones-Sawyer). Inverse Condemnation: Comparative Fault
    Position: Support

    Existing law prohibits the taking of private property without the payment of just compensation and permits a person to maintain an action in inverse condemnation for the purpose of obtaining compensation for a taking. Existing law applies the doctrine of comparative fault for the purpose of apportioning responsibility and reducing damages to the extent a plaintiff is found partially at fault. This bill would apply the doctrine of comparative fault to inverse condemnation actions and would require a court or arbitrator to reduce the compensation paid to a plaintiff in an inverse condemnation proceeding in direct proportion to his or her percentage of fault, if any, in the damaging of property that constitutes a taking, as specified. This bill contains other related provisions and other existing laws.

  • AB 1035 (Perez). Workers' Compensation: Firefighters and Peace Officers
    Position: Oppose

    Existing law specifies the time period within which various proceedings may be commenced under provisions of law relating to workers' compensation. With certain exceptions, a proceeding to collect death benefits is required to be commenced within one year from several circumstances, including, but not limited to, from the date of death if it occurs within one year from the date of injury. However, no proceedings may be commenced more than one year after the date of death, nor more than 240 weeks from the date of injury. This bill would, only until January 1, 2019, extend the time period to commence proceedings to collect death benefits, if the proceedings are brought by, or on behalf of, a person who was a dependent on the date of death, from 240 weeks from the date of injury to no later than 420 weeks from the date of injury, not to exceed one year after the date of death. This provision would apply only to a specified injury causing death, including cancer, tuberculosis, or a blood-borne infectious disease or methicillin- resistant Staphylococcus aureus skin infections, and would apply only to specified deceased members, including peace officers and active firefighting members. The bill would also include legislative findings and declarations.

  • AB 2052 (Gonazlez). Workers' Compensation
    Position: Oppose

    Existing law establishes a workers' compensation system to compensate an employee for injuries arising out of , and in the course of , his or her employment. Existing law designates illnesses and conditions that constitute a compensable injury for various employees, such as California Highway Patrol members, firefighters, and certain peace officers. These injuries include, but are not limited to, hernia, pneumonia, heart trouble, cancer, meningitis, and exposure to biochemical substances, when the illness or condition develops or manifests itself during a period when the officer or employee is in service of his or her employer, as specified. This bill would expand the coverage of the above provisions relating to compensable injury, to include all peace officers described under specified provisions of law. To the extent that the bill would apply the provisions to additional local peace officers, the bill would impose a state-mandated local program. This bill contains other related provisions and other existing laws.

  • AB 2378 (Perea). Workers' Compensation: Temporary Disability Payments
    Position: Oppose

    Existing law establishes a workers' compensation system, administered by the Administrative Director of the Division of Workers' Compensation, to compensate an employee for injuries arising out of and in the course of his or her employment. Existing law requires that aggregate disability payments for a single injury occurring on or after certain dates be limited, as provided. This bill would provide that the above-specified leaves of absence without loss of salary are payable in addition to the maximum aggregate disability payments for a single injury that is applicable to all workers. The bill would make these provisions applicable to all claims, regardless of the date of injury. The bill would also make related findings and declarations. This bill contains other existing laws.

 


Risk Solutions

by Alex Mellor, Risk Manager

With summer just around the corner, this is an opportune time for us all to begin thinking about loss exposures associated with increased use of public facilities such as parks, playgrounds, and swimming pools.

First Aid/CPR
Larger crowds coupled with an increase in temperatures during summer months makes it more likely that staff will have to respond to an ill or injured member of the public or fellow employee. The odds of a favorable outcome can be improved by ensuring that key staff are formally trained in First Aid, CPR and AED use. The California JPIA offers American Heart Association (AHA) First Aid, CPR and AED training to members at no additional cost. The AHA requires re-training every two years, so if it's been a while since your employees received this training, it would be a good idea to review your records and determine if certifications have expired.

Parks & Playgrounds
Ensuring the safety of our children while they enjoy the parks and playgrounds in our communities is of paramount importance to every California JPIA member. This is a great time of the year to review your Playground Inspection and Maintenance Plan, ensure that periodic inspections are being conducted and documented, and take any corrective actions necessary. A sample Playground Inspection and Maintenance Plan can be found in the Resource Center.

If playgrounds owned by your agency have not received an audit from a Certified Playground Safety Inspector (CPSI), this should be made a priority to ensure your playgrounds meet nationally recognized standards. You can locate a CPSI in your area through the National Recreation and Park Association website (NPRA): https://www.nrpa.org/CPSI_registry/default.aspx.

Aquatics
Injuries that occur at member-owned swimming pools and aquatic centers have the potential to be both traumatic and costly. This exposure can be mitigated in a number of ways:

  • Ensure lifeguards are trained to follow specific operational and emergency procedures, and possess current lifeguard and first aid/CPR certifications. In addition, regular in-service trainings provide lifeguards with a simulated experience of potential real-world incidents (victim retrieval, unruly patron intervention etc.)
  • Inspect the pool, locker rooms, showers and other areas of the facility on a periodic basis to identify and correct any hazards such as broken glass, bodily fluids, inappropriate behavior etc.
  • Ensure that rescue equipment such as backboards, rescue tubes, and throw ropes are readily accessible and that staff have been trained in the effective use of these devices.

Special Events Program
Summertime brings with it an increase in the number of special events in which public agencies are involved. Event organizers or members of the public wishing to use member-owned facilities may have difficulty obtaining minimum liability insurance limits recommended by the California JPIA (typically $1 million per occurrence). This is where our Special Events Program can help. The program provides liability insurance when member-owned premises are used for special events or short-term activities. Examples include weddings, art festivals, parades, yoga classes, and member-sponsored events such as fairs, carnivals, and swap meets. There is no deductible for this coverage, and members are automatically added as additional insured.

For more information, visit the Special Events page of the California JPIA's web site: Special Event Program.



Risk Solutions

California's Heat-Illness Rules in Spotlight Again

Reprinted from the Society for Human Resources Management, March 2014

In California the weather can be a blessing, but it also can be a huge concern. For anyone from farmworkers picking fruit to construction crews working under the blazing sun, heat illness can pose a huge threat. Those worries spurred the state to put protections in place nearly a decade ago.

Now the state's requirements for heat-illness prevention are once again under scrutiny. Facing calls from labor groups for more protections, state regulators are weighing the possibility of changing the rules. Business groups, though, see no need for regulatory changes.

Meanwhile, a new state law imposes penalties for violating one provision of the regulations: failing to provide cool-down recovery periods. Lawyers warn that Senate Bill (S.B.) 435 could trigger a wave of class actions against employers, and they urge businesses to take extra precautions.

Heat-Illness Regulations
In 2005 state authorities adopted emergency rules to protect against heat illness, and the following year, California enacted permanent regulations. The Heat Illness Prevention Standard requires employers to provide access to water, shade and other protections. In 2010 the state added safeguards for times of high heat.

The regulations apply to all outdoor employment sites. Among the provisions of the current rules are:

Water

  • Businesses must provide at least one quart of water per hour for each worker. In addition, companies should encourage workers to drink water frequently.

Shade

  • A shaded space must be available when the temperature exceeds 85 degrees Fahrenheit.
  • The shaded area must accommodate at least 25 percent of the workers on the shift at any time, so they can sit in a normal posture completely in the shade without having to be in physical contact with one another.
  • The shaded area must be "as close as practicable" to work areas.
  • Employers must permit and encourage workers to take a cool-down rest in the shade for at least five minutes when they feel the need to do so, to protect against overheating.

High-Head Procedures

  • Employers in five industries must implement high-heat procedures when the temperature reaches at least 95 degrees.
  • These procedures include observing workers for heat-illness symptoms.

Planning for Emergencies

  • Businesses must develop a plan for responding to symptoms of heat illness. This includes procedures for contacting emergency medical services and for transporting employees to receive care.
  • Employers also must designate a person to ensure that proper procedures are followed in an emergency.

Training

  • Employers must train supervisors and workers on required procedures

The California Division of Occupational Safety and Health (Cal/OSHA) has been criticized for its enforcement of the heat regulations. In 2012, United Farm Workers of America (UFW) sued the agency in Los Angeles Superior Court, alleging systematic failure related to investigating complaints, issuing citations, imposing penalties and other areas. In response, Cal/OSHA said protecting farmworkers is a priority and it vigorously enforces the rules.

Groups Clash over Proposed Changes
In 2013 and 2014, Cal/OSHA held two meetings to determine whether the standard should be revised.

At the July 2013 meeting, labor groups called for changes, such as more specific requirements for water and shade. The groups included the UFW and California Rural Legal Assistance (CRLA). Business groups countered that they hadn't seen a good rationale for these changes.

Participants in the February 2014 meeting examined draft language that Cal/OSHA developed. The proposed revisions include the following:

  • Adding a requirement that water be no farther than 200 feet from any employee at any time, other than when the employee is using a restroom or traveling between the restroom and a work area.
  • Requiring that the shaded area accommodate 100 percent of employees on the shift at any time, so they can sit in a normal posture fully in the shade without having to be in physical contact with one another. An exception would be made when an employer rotated break periods between workers. In that situation the amount of shade would simply need to cover all of the workers on break.
  • Adding a requirement that the shade be no farther than 400 feet from a work area unless an employer can show that's not possible.
  • Lowering the trigger temperature for high-heat procedures to 85 degrees.
  • Requiring a supervisor to implement emergency-response procedures if signs of severe heat illness are detected. A company would be violating the revisions if it sent home an employee who displayed these symptoms without offering the worker onsite first aid or emergency medical care.

Lupe Quintero, the CRLA's director of community workers, said the draft language significantly improves the regulations, but it leaves some weaknesses unaddressed.
For instance, the CRLA supports making the maximum distance workers must travel for water 50 feet to 100 feet, rather than the 200 feet included in the proposal, Quintero told SHRM Online.

"We want the water to be as close as possible to the workers," she said. The CRLA backs many provisions in the draft language, including the maximum 400-foot distance from the shade and lowering the trigger temperature for high-heat procedures to 85 degrees.

Also, the group supports the proposal requiring supervisors to implement emergency procedures if workers exhibit signs of severe heat illness. Currently, Quintero said, workers with heat-illness symptoms are sometimes merely sent home.

The business community has an entirely different perspective.

Marti Fisher, policy advocate for the California Chamber of Commerce, said employers have a high rate of compliance with the regulations. They conduct stringent training on the requirements, she told SHRM Online. The chamber and its coalition of business partners want the discussion to be data-driven, and they haven't seen any data that justify the revisions, she added.

In a February 2014 letter to Cal/OSHA, the coalition—which includes the Western Agricultural Processors Association (WAPA), Associated General Contractors of California (AGC), several local chambers of commerce and dozens of other groups—said the draft proposal is "entirely unworkable" for employers.

In a July newsletter, WAPA President Roger Isom stated that previous heat-related accidents were due to certain employers' failure to comply with existing rules—not to inadequate regulations.

Also, in an article posted in August, AGC representative Kate Smiley Crawford urged Cal/OSHA to go after the "bad actors."

But in Quintero's view, the regulations need to be tightened. She's based in the Imperial Valley, where the summertime heat often soars past 100 degrees.

Quintero and other CRLA staff visit California fields that appear to lack adequate water, shade or other protections. They try to speak with supervisors and get the problems remedied, according to Quintero. The CRLA often sees potential violations, and when the group deems it necessary, it asks Cal/OSHA to inspect fields.

In addition, the CRLA provides formal training sessions for farmworkers on heat-illness prevention and informs them that they can make anonymous complaints.

"Workers need to know their rights," Quintero said. "Many times workers are afraid to complain, to say anything, because of fear of losing their jobs."
With so much disagreement over the proposal, what comes next? The debate will continue for a while. According to Cal/OSHA spokeswoman Kathleen Hennessy, the discussion process will last the rest of the year.

Enforcement Data
Inspections
In 2006, Cal/OSHA conducted 234 heat inspections statewide, agency data show. Now regulators investigate many more workplaces. In 2012 the agency did 3,854 heat inspections. Last year, Cal/OSHA performed 3,785 of these inspections. (The enforcement data available for 2013 don't reflect the entire year.)

Violations 
The number of inspections with heat violations totaled 158 in 2006. That number reached 1,099 in 2012 and 1,014 last year, according to the most recent figures.

The data reveal that employer compliance soared from 32 percent in 2006 to 75 percent in 2011. For 2012 and 2013, the compliance rate was 73 percent.

New State Law
Meanwhile, employers should address the recently enacted S.B. 435, which imposes penalties for missed cool-down recovery periods. The law relates to the current provision that allows workers to take cool-down rests in the shade for at least five minutes.

Under the measure, which took effect Jan. 1, 2014, businesses must provide one extra hour of pay for each workday they fail to allow a recovery period. 
The law potentially could be a "significant source" of wage and hour class actions, alleging that employees were deprived of recovery periods, said Costa Mesa attorney Stephen Berry of Paul Hastings.

Attorneys believe that S.B. 435 will present major challenges for employers. Because state regulations permit employees to determine if they need a cool-down break, lawyers advise businesses to establish clear procedures and keep good records.
Companies need to make sure that supervisors and employees are aware of the provision, advised Christopher Olmsted, a San Diego attorney at Barker Olmsted & Barnier. They also should document their compliance efforts, he added. For instance, a company could note these efforts on a "tailgate meeting" log or take pictures or video of workers during cool-down periods.

Berry told SHRM Online that in their employee-safety policies, companies should include a specific obligation for workers—namely, that if an employee wants a cool-down recovery period but is discouraged or prevented from taking one, the worker must immediately report that to HR.

Berry also recommends a timecard certification, in which employees certify that they've received all of the cool-down recovery periods they requested.



The Court Report

The Court Report

E-Records Sent From Private Devices and Accounts Are Not Public Records Under CPRA

by Erica L. Vega, Esq., Burke, Williams & Sorensen, LLP

The Court of Appeal for the Sixth District issued its decision on March 27, 2014 in the case of City of San Jose v. Superior Court (Smith). In this case, a citizen had sought "voicemails, emails or text messages sent or received on private electronic devices" used by certain City officials under the California Public Records Act ("CPRA"). The City disclosed the responsive, non-exempt records sent from private devices using City accounts, but not records sent using personal accounts, on the grounds that records sent using personal accounts were not public records. Smith sued the City to compel disclosure of the records sent from private electronic devices using personal accounts.

The issue before the Court of Appeal was "whether those private communications, which are not stored on City servers and are not directly accessible by the City, are nonetheless 'public records' within the meaning of the California Public Records Act." The Court held that those communications are not public records. Specifically, the Court held that "the language of the CPRA does not afford a construction that imposes on the City an affirmative duty to produce messages stored on personal electronic devices and accounts that are inaccessible to the agency, or to search those devices and accounts of its employees and officials upon a CPRA request for messages relating to City business."

Section 6252 of the CPRA defines a public record as "any writing containing information relating to the conduct of the public's business prepared, owned, used or retained by any state or local agency." In reaching its conclusion, the Court focused on both this definition, as well as principles of statutory construction.

The Court agreed with the City's arguments that under the express terms of Section 6252, only those writings prepared, owned, used or retained by an agency are public records; writings that are prepared, owned, used or retained by an agency's employees and officials but not the agency itself are not public records under the CPRA. The Court stated that while it may be true that an agency can only act through its officials, not every act by an official is an act of the agency.

Further, the Court noted that the definition of "local agency" in Section 6252 refers to governmental bodies themselves, not individual members or representatives of the governmental body. "Because it is the agency - here, the City - that must prepare, own, use or retain the writing in order for it to be a public record, those writings that are not accessible by the City cannot be said to fall within the statutory definition. The City cannot, for example, 'use' or 'retain' a text message sent from a council member's smartphone that is not linked to a City server or City account."

This decision has significant implications for local officials' communications related to City business conducted entirely on privately owned and maintained electronic devices. While it may be prudent to wait to see if this case will be reviewed by the California Supreme Court, according to City of San Jose v. Superior Court, local officials' private email and mobile phone records will not be subject to disclosure under the Public Records Act. Officials should also be aware that the decision involved truly "private" devices, it does not address the question of whether communications on "private devices" for which the public agency provides reimbursement with public funds would be subject to the Act. We caution that a reviewing court could reach a different conclusion in that context.

Members are encouraged to speak with their legal counsel and/or their Regional Risk Manager about concerns they have about these issues.



The Court Report

The Court Report

Government Liability

Police Officers Entitled to Qualified Immunity for Using Deadly Force to Stop Suspect about to Throw Large Rock at Them 

In Lal v. State of California, published March 31, 2014, the 9th Circuit Court of Appeals affirmed summary judgment in favor of California Highway Patrol officers who shot and killed a man who was approaching them, holding a football-sized rock over his head, after throwing smaller rocks at the officers and engaging in other provocative acts such as leading the officers on a long high-speed chase, attempting to hit a motorcycle officer, pointing his cellphone at the officers like a pistol, injuring himself violently, and announcing his intent to die. The events surrounding the shooting show that the officers acted patiently given the circumstances, and avoided use of force until the suspect posed an imminent threat. The officers were entitled to qualified immunity, because a reasonable officer could have believed their conduct was within the Fourth Amendment. That the decedent may have been intent on committing "suicide by cop," the court ruled, did not negate the fact that he threatened the officers with such immediate serious harm that shooting him was a reasonable response.


Disputed Facts about Degree of Threat Defeat Summary Judgment for Officer Who Shoots Suspect While Being Kidnapped 

In Gonzalez v. City of Anaheim, published March 31, 2014, a divided 9th Circuit Court of Appeal en banc panel reversed summary judgment in favor of two police officers on a Fourth Amendment use-of-excessive force claim by the successor to a man shot during a traffic stop. The man acted evasively during the stop, and resisted officers' commands. He started driving his minivan while one of the officers was inside. The officer drew his gun and shot the man in the head. The majority held that because the officers were the only witnesses to the incident, the consistency of their accounts was crucial to whether summary judgment was appropriate. Both officers testified that the driver "floored" the accelerator, and the officer inside the minivan testified that the suspect accelerated violently, threatening the officers. But the officer who was inside inconsistently testified that the van traveled 50 feet in five to ten seconds, which would mean the van was traveling slowly. The issue of fact about the circumstances, and thus the degree of threat, prevented the court from resolving the reasonableness of the use of force as a matter of law. The dissenting judges opined that the seriousness of the driver kidnapping an arresting officer justified the use of lethal force as a matter of law. The court affirmed summary judgment on the decedent's family's cause of action for deprivation of familial rights in violation of due process. That cause of action requires conduct that shocks the conscience. In a situation like this, where deliberation is not possible, that would require that the officers' acts be unrelated to any legitimate law-enforcement purpose. Under the circumstances, the plaintiffs could not make that showing.