May 2014 - Issue 27

Annual Meeting of the Board of Directors

19th Annual Risk Management Educational Forum

Common Public Employer Misconceptions

U.S. Supreme Court Approves Prayer Before Government Meetings

Supervisor’s Conduct Supported Same-Sex Harassment Claim

Facility Use Agreements – Who needs them and why?

Jon Shull

News: Worthy

Annual Meeting of the Board of Directors

by Jonathan R. Shull, Chief Executive Officer

The Annual Meeting of the Board of Directors will be held on Wednesday, July 16, 2014 at 7:00 p.m. 

Those attending will have the opportunity meet the Executive Committee, Authority staff, and network with the members of the California JPIA. The business meeting will present information about the Authority's objectives, vision, and accomplishments over the past year, including recognition of the winners of the 2014 risk management awards; and the budget for fiscal years 2014-15 and 2015-16.

In addition, voting delegates will elect four Executive Committee members. Also, the Board of Directors will elect one member from the Executive Committee to serve as Vice-President for a two-year term. 

The meeting will be held at the Authority’s La Palma campus at 8081 Moody Street. A buffet dinner will be available al fresco at 5:30 p.m. with the Board of Directors meeting immediately following. Voting delegates and up to one additional member representative traveling in excess of 100 miles are eligible to receive lodging and travel reimbursement for attending the meeting. A $100 stipend will be provided to the voting delegate or alternate of each member agency attending the meeting.

On an annual basis, the California JPIA asks members to certify designated California JPIA Director and Alternate(s) prior to the annual Board of Directors meeting. We automated the process and now have a more efficient, paperless, method which allows you to submit certifications electronically. Please click here to complete the certification. Registration for the Annual Meeting of the Board of Directors will open in June. For questions or assistance please contact Jennifer Fullerton, Administrative Assistant, at (562) 467-8774 or jfullerton@cjpia.org

I hope you will be able to join us.



19th Annual California JPIA RMEF

News: Worthy

19th Annual Risk Management Educational Forum

Get ready to grab your longboards and join the California JPIA at its 19th Annual Risk Management Educational Forum this October at the Fess Parker Resort in Santa Barbara. Whether you are just learning to paddle or know how to catch a wave, we want you to show up in Santa Barbara where our aim is to get you hanging ten and riding the wave of risk management.

The most important influence on a wave is the shape of the ground. So it is with risk management, where the contours of our legal, physical, and organizational environments result in conditions that are rarely constant. The Authority’s Educational Forum will help you understand the changing currents and equip you with needed tools to better forecast the size and direction of factors that can cause you to fall off the wave.

Selecting the right size and style of surfboard is key to getting started on a wave. Keynote speaker, Lizz Pellet, the author of “The Cultural Fit Factor, Creating an Employment Brand that Attracts, Retains and Repels the Right Employees,” brings her high energy use of humor and relevant business content to focus on the importance of work culture and employment branding.

There is no registration fee for members of the California JPIA. Also, a limited number of need-based scholarships will be offered to assist with lodging expenses.

Non-member registration fee is $450. 

To register, click here.

For questions, email us at forum@cjpia.org.



Legal Matters

Common Public Employer Misconceptions

by Kelly A. Trainer and Sheila Delshad, Burke, Williams & Sorensen, LLP

The employee is at-will…I can do anything I want.
An at-will employment relationship is one that does not have a specified term, and which may be terminated at the will of either party on notice to the other.[1] There are not many at-will employees in the public sector. If your agency does have at-will employees, their status should be set forth in the agency’s governing documents, such as the municipal code or an employment contract. They commonly include high-ranking employees, temporary employees, and probationary employees. 

To fully explain the rights of at-will employees, a brief explanation of constitutional law in public employment is required. Public employees are afforded significant procedural protections in their continued employment under the U.S. and California constitutions. These protections derive from the 14th amendment to the U.S. Constitution, which prohibits the state from depriving a person of “life, liberty, or property without due process of law.” Depending on the employee’s classification, he/she can have either a property interest or a liberty interest in continued public employment.[2] The majority of public employees have a property interest, which forms the basis of the Skelly rights that most public employers are familiar with in California. 

An at-will employee is one who does not have a property interest in continued employment, and therefore is not entitled to advance notice of the agency’s intent to terminate and is not entitled to a post-disciplinary appeal. However, at-will does not mean that the employee is entirely without rights or recourse.

Workplace Laws Apply to At-Will Employees
First, the workplace laws, such as those that prohibit harassment and discrimination, apply to at-will employees. As such, the termination cannot be for an unlawful reason, such as the employee’s age or sexual orientation. 

At-Will Employees Have a Constitutional Liberty Interest
Second, at-will employees do have a liberty interest in continued employment. While this is not as powerful as a property interest, it does afford some additional constitutional protections for terminated at-will employees. The liberty interest (commonly called the Lubey right in California) protects the employee when the termination “is based on charges of misconduct which stigmatize his reputation, or seriously impair his opportunity to earn a living, or which might seriously damage his standing or associations in his community.”[3] 

In order for the liberty interest to be present, the following three elements must be met:

  1. A stigmatizing charge that implicates the employee’s reputation;
  2. The employee’s denial of that charge; and
  3. Public disclosure of that charge.[4]

The courts have narrowly defined “stigmatizing charge” to be conduct that implicates moral turpitude, such as charges involving dishonesty. On the other hand, mere incompetence, failure to pass probation, or failure to work well with co-workers do not give rise to the right. In addition, the employee must deny the charge in order for the right to be triggered; if he/she admits to the charge, then there is no liberty interest present. Finally, public disclosure has been so broadly construed that the possibility that future employers could inquire into the circumstances of the termination will satisfy this requirement.

If these elements are all present, then the employee is entitled to a “name-clearing hearing” before the termination. While different circumstances could give rise to different requirements for the name-clearing hearing, due process will generally be satisfied by advising the employee of the charges and providing him/her with the opportunity to be heard. It is not the right to an administrative hearing. 

Police and Fire Chiefs
Agencies with police and fire departments should also be aware that at-will police and fire chiefs are afforded additional protections under the Public Safety Officers Procedural Bill of Rights Act and the Firefighters Procedural Bill of Rights Act.

That is a workers’ compensation matter…I don’t need to do anything because the carrier is handling it.
Often times, employers believe that when an employee suffers an industrial illness or injury that the matter is entirely a workers’ compensation issue and that all necessary steps will be taken by the workers’ compensation carrier. That is certainly accurate as it relates to the workers’ compensation issues. However, an injured or ill employee has additional rights outside of the workers’ compensation arena and employers frequently overlook these issues because of the misconception that their obligation ended as soon as the employee was given workers’ compensation paperwork.

The employer is required to separately evaluate any obligations that it may have to the employee under the state and federal disability and leave laws, as well as under its own internal rules and policies. Such an evaluation falls outside of the scope of service that is provided by a workers’ compensation carrier.

As such, employers are urged to consider their internal practices for the handling of workers’ compensation matters. Employers should evaluate whether they are fully complying with the Family Medical Leave Act (“FMLA”) and the California Family Rights Act (“CFRA”) when an employee is off work due to an industrial injury. Employers should also evaluate their obligations under the Americans with Disabilities Act (“ADA”) and the Fair Employment and Housing Act (“FEHA”). All four of these laws, as well as the agency’s own internal rules and policies, can, and frequently do, intersect with a workers’ compensation matter. It is the employer’s obligation to comply with these additional laws and policies, and it falls outside the scope of the services provided by workers’ compensation carriers.

Agencies are encouraged to seek guidance from their Regional Risk Manager and/or legal counsel in determining whether their practices are in full compliance with the law.

I can hire a CalPERS retiree anytime I want…as long as they work less than 960 hours in a fiscal year.
Most employers who provide CalPERS pension benefits are aware that CalPERS retirees employed by CalPERS employers (“retired annuitants”) cannot work more than 960 hours per fiscal year without risking their retirement status and subjecting both the employer and retiree to making retroactive CalPERS contributions. However, this is only one of many legal restrictions on post-retirement employment imposed by the California Public Employees’ Retirement Law (“PERL”) and the Public Employees’ Pension Reform Act of 2013 (“PEPRA”). The PERL and the PEPRA mandate that CalPERS employers comply with a variety of rules governing the “why, when, how and who” of employing retired annuitants. 

The “Why”: Limited Duration Work. 
Employers must first be able to justify why the retiree is needed, which must be to perform work of “limited duration.” This means that retirees may work on a short-term basis when they possess needed skills to provide extra help to regular staff, to work on special projects, or when a real emergency threatens the stoppage of public business. Additionally, the employer’s governing body may also make a one-time appointment of a retiree to an interim managerial or executive position (e.g., Interim Police Chief, Interim Finance Director) while an open recruitment is conducted to permanently fill the vacant position. On the whole, the limited duration restriction means that retirees should not be hired to work indefinitely, to fill part-time regular staff positions, or as a permanent solution to the employer’s business needs. 

The “When”: 180-Day Waiting Period, Bona Fide Separation in Service, and Receipt of Unemployment Insurance. 
Effective January 1, 2013, employers hiring retirees have three new restrictions to bear in mind when it comes to when a particular retiree may begin work. First, subject to just a few exceptions, retirees must wait 180 days after their retirement date before they can be employed as a retired annuitant. Second, service retirees who retired under the normal retirement age are subject to an additional “bona fide separation in service” requirement mandating that at least 60 days have passed since the retirement date and, further, that there was no pre-determined agreement of post-retirement employment. Third, retirees who have received unemployment insurance payments resulting from previous retired annuitant work with a CalPERS employer may not be appointed to another retired annuitant position for a period of 12 months following such payment.

The “How”: Strict Limits on Compensation and Hours Worked. 
A retired annuitant must be paid within the range of the minimum and maximum monthly base salary paid to other employees performing comparable duties, divided by 173.333 hour per month to equal an hourly rate. Any other benefits or incentives offered in addition to the hourly pay rate are strictly prohibited. Employers should also be aware that the 960-hours limitation is combined across all CalPERS employers for each fiscal year, so any such outside employment should be taken into account when scheduling and monitoring the hours worked by the retired annuitant. 

The “Who”: Including Common Law Employees Classified as Independent Contractors, Staffing Agency Workers, or Consultants
The retired annuitant restrictions apply whenever a retiree has an employer-employee relationship with the CalPERS employer. This includes not just retired annuitants placed directly on payroll, but would also extend to those working through independent contractor agreements or through third-party staffing or consulting firms if a common law employment relationship exists. Under the common law employment test applied by CalPERS, there are many factors to be considered but the right to control the means by which the work is accomplished is the most significant and indicative of an employer-employee relationship. Retirees who meet this test are considered employees of the CalPERS employer and therefore subject to the PERL and PEPRA’s post-retirement employment requirements.

These are just a few of the most pertinent rules governing post-retirement employment. As every situation is unique and may implicate exceptions or other laws not discussed here, employers with specific questions or issues are encouraged to consult with legal counsel.

It can’t be sexual harassment…I’m not even attracted to him/her.
There is often a belief that sexual harassment is motivated by sexual desire. There are certainly circumstances where sexual desire may play a part in sexual harassment, but not all sexual harassment will involve sexual desire. In California, the Fair Employment and Housing Act (FEHA) was recently amended to codify this principle. Effective January 1, 2014, Senate Bill 292 amended the FEHA to specify that sexual harassment does not need to be motivated by sexual desire. This bill was specifically authored by Senate Majority Leader Ellen Corbett (D-East Bay) in response to the holding in Kelley v. Conco Companies (2011) 196 Cal.App.4th 191. In Kelley, the Court found that Kelley, a male ironworker, was “unquestionably” exposed to “graphic, vulgar, and sexually explicit” language by coworkers and that “[t]he literal statements expressed sexual interest and solicited sexual activity.” However, the Court held that Kelley failed to establish a claim for sexual harassment when he was unable to establish that his male harasser was homosexual or was motivated by sexual desire. 

The Kelley decision was expressly overruled by the legislation. Employers investigating allegations of sexual harassment are cautioned to be mindful of this standard. 

That person can’t be the Skelly Officer…he/she was involved with the disciplinary action.
As discussed above, there are many employees in the public sector who have a property interest in continued employment, and as such, can only be terminated for cause. When an employer’s action constitutes a significant enough deprivation of an employee’s property interests, the employer is required to provide the employee with both pre-deprivation due process rights[5], which are frequently referred to as “Skelly rights” in California, and with post-deprivation due process rights. The California Supreme Court had held that the Skelly rights require that an employee be afforded “preremoval safeguards [which] must include notice of the proposed action, the reasons therefore, a copy of the charges and materials upon which the action is based, and the right to respond, either orally or in writing, to the authority initially imposing the discipline.”[6] 

There is often considerable debate about the person who serves as the “authority” to which the employee is afforded the right to respond (frequently referred to as the Skelly Officer). Importantly, the Skelly Officer is not the same thing as the appeal officer who presides over a post-disciplinary appeal hearing.[7] In cases where the employee is also entitled to a post-deprivation hearing, the following process generally applies:[8] 

  1. Employee is given notice of intent to discipline (Skelly notice). The notice must be in writing, include a clear statement of the proposed discipline and the reasons for the proposed discipline, provide a copy of charges and the materials on which the proposed action is based, and provide the employee with a reasonable time to respond, in person and/or in writing, to the authority who will decide whether discipline will be imposed.
  2. If requested by the employee, the employee participates in a Skelly meeting, where the employee has an opportunity to be heard by the Skelly Officer.[9] The employee may also submit a written response to the Skelly Officer.
  3. After considering the information provided during the Skelly meeting and/or the written response, disciplinary action is imposed, modified, or withdrawn.
  4. If requested by the employee, the employee is afforded an evidentiary appeal before the appeal officer.

The pre-deprivation right to respond requires a meaningful opportunity for the employee to present his/her side to a reasonably impartial reviewer with authority to recommend final discipline. However,Skelly does not require that the Skelly Officer be completely uninvolved in the events leading up to the proposed discipline. This was clarified by the Court of Appeal in Flippin v. Los Angeles City Board of Civil Service Commissioners (2007) 148 Cal.App.4th 272. In that case, Kenneth Flippin was terminated by the Los Angeles Department of Water and Power (“DWP”) after he was found sleeping in a hammock under a DWP truck on a public street during working hours. The Board of Civil Service Commissions (“Board”) upheld the DWP’s termination, and specifically found that the DWP had afforded Flippin with due process as required by Skelly. In Flippin’s petition for administrative mandamus to compel the Board to reinstate his employment, he claimed, among other things, that the DWP had denied him his due process right to an impartial Skelly officer. Flippin’s allegation was that the same DWP manager – John Sharp –investigated the allegations against Flippin, authored the notice of intent to terminate Flippin and served as the Skelly officer. In rejecting Flippin’s argument, the Court specifically noted that there is no authority that precludes an employee from initiating disciplinary action and serving as the Skelly officer.[10] 

While it is certainly preferable to have different people serving in the various roles during a disciplinary action, it is not legally required. Often, there are logistical difficulties – particularly in smaller agencies – in finding a sufficient number of people to fill all the roles. When that is the case, agencies are encouraged to coordinate this issue with legal counsel. 

[1] Labor Code § 2922.
[2] Whether an employee has obtained a property interest in continued employment is based on how the employee is classified in a statute, ordinance, personnel rule, or employment agreement that designates that the employee can only be terminated “for cause.” If the employee has not been so designated, he/she is at-will and only has a liberty interest in his/her employment.
[3] Lubey v. City and County of San Francisco (1979) 98 Cal.App.3d 340, 346.
[4] Ibid.
[5] Skelly v. State Personnel Board (1975) 15 Cal.3d 194.
[6] Id. at 215.
[7] While not the subject of this discussion, there are separate legal obligations that govern the impartiality requirements for the appeal officer. In particular, the appeal officer should be a neutral person who was not involved with the disciplinary action. It is important for agencies to keep this in mind when going through the disciplinary process so that the appeal officer is shielded from the pre-disciplinary decision-making. This is particularly significant when the agency utilizes an employee as the appeal officer. 
[8] Note, the actual process of due process is typically set forth in an agency’s own internal rules and policies and agencies should adhere to that process.
[9] This is not a formal evidentiary hearing, but rather an opportunity to respond informally and present any information that the employee would wish the decision-maker to consider before determining whether to impose the recommended disciplinary action.
[10] The Court also noted that Flippin’s termination was actually imposed by a different DWP manager, who approved Sharp’s recommendation for termination. It also noted that Flippin was then afforded a full evidentiary hearing before a neutral hearing officer appointed by the Board, and then a review of that decision by the Board.



The Court Report

U.S. Supreme Court Approves Prayer Before Government Meetings

by James N. Procter II, Managing Partner, Wisotsky, Procter & Shyer

On May 5, 2014, a sharply divided U.S. Supreme Court ruled that sectarian invocations at the beginning of city council meetings do not automatically violate the Establishment Clause of the First Amendment to the U.S. Constitution. In a 5-4 vote, the Court held that the Town of Greece in New York State did not violate the First Amendment’s ban on government endorsement of religion by allowing Christian prayers before its monthly meetings. Justice Anthony Kennedy, writing for the majority, indicated that the town’s prayers were consistent with the Court’s ruling in Marsh v. Chambers, 463 U.S. 783 (1983), which upheld the practice of opening legislative sessions with prayer. The Court based its holding in Marsh on the “unique history” of legislative prayer, emphasizing that the first Congress opened its sessions with prayer.

Whether the Town of Greece decision will have a significant impact on California law remains to be seen. Article 1, Section 4 of the California Constitution reads, in part, “Free exercise and enjoyment of religion without discrimination or preference are guaranteed …. The Legislature shall make no law respecting an establishment of religion.” [Emphasis added.] This language embodies what has been called the “No Preference Clause,” which has no federal counter¬part. Accordingly, the California Constitution is far more restrictive of government-endorsed prayer than the Federal Constitution, and a sectarian prayer at a government meeting may be constitutionally impermissible under California law, despite the fact that it does not violate federal constitutional law.

At this time, there are no published decisions from the California court directly addressing legislative prayer. However, the State Supreme Court has held that Christian prayers and invocations conducted at high school graduations are violative of the State Constitution and, more particularly, the No Preference Clause. Sands v. Morongo Unified School District, 53 Cal.3d 863 (1991). The State Supreme Court held that when the government demonstrates even the appearance of preference of one religion as opposed to another, it violates the No Preference Clause. See also, Fox v. City of Los Angeles, 22 Cal.3d 792 (1978) [placement of a Latin cross on the Los Angeles City Hall showed an unconstitutional preference to Christianity].

By way of summary, it is important for California JPIA members to recognize that the decision in the Town of Greece case does not resolve the issue of government-sanctioned prayer in California. Whatever else is true, this issue will continue to be contentious and the law in this area will continue to evolve. In the meantime, public entities should proceed with caution and carefully evaluate the risks of offering sectarian prayers at public meetings.



The Court Report

Supervisor’s Conduct Supported Same-Sex Harassment Claim

(Reprinted from the Society of Human Resource Management, April 8, 2014)

Finding that an intern produced sufficient evidence for a reasonable jury to conclude his supervisor engaged in a pervasive pattern of harassing conduct “because of sex,” including numerous gifts, frequent lunch purchases, along with sexual jokes and displays of pornographic computer images, the California Court of Appeal allowed his harassment suit to proceed, reversing a lower court’s summary judgment against the plaintiff. The court further found the trial court erred in excluding evidence of the alleged harassment in the intern’s retaliation claim against the City of Benicia and ordered a retrial on the retaliation claim.

Background
Brian Lewis, a heterosexual man, worked at the City of Benicia’s water treatment plant, first as a volunteer (beginning in March 2008), then as a paid intern for a 60-day internship (from July to October 2008), and finally, for a second stint as a volunteer (from January to May 2009). During his tenure, Lewis reported mainly to Steve Hickman. Lewis asserted Hickman sexually harassed him by showing him sexually explicit images on an office computer, telling him “risqué” jokes, giving him approximately 30 gifts (including “tuxedo underwear” with ruffles and a bow tie, hats, t-shirts, wine, shot glasses, and backpacks), frequently buying him lunch, and asking him for a kiss and to visit Hickman’s home. Lewis also alleged that, after he complained to the city about the harassment and participated in the investigation of Hickman, the city retaliated against him by terminating his paid internship, prohibiting him from continuing to work at the water treatment plant, even on an unpaid basis, and falsely accusing him of workplace misconduct.

Lewis sued Hickman and the city for alleged sexual harassment under the California’s Fair Employment and Housing Act (FEHA). He also sued the city for employment retaliation. The trial court granted summary judgment in favor of Hickman and the city on the sexual harassment claims. Following a jury trial on the retaliation claim, the jury returned a verdict in favor of the city. Lewis appealed.

Applicable Law
To establish a sexual harassment claim under the FEHA, the employee must prove that:
1) He or she was subjected to unwelcome sexual advances, conduct or comments.
2) The harassment was based on sex.
3) The harassment was sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment.

Under FEHA, sexual harassment can occur between members of the same gender as long as the plaintiff can establish the harassment amounted to discrimination “because of sex.”

Harassment “because of sex” can be proven or inferred more easily in male-female sexual harassment situations involving “explicit or implicit proposals of sexual activity.” However, “[t]he same chain of inference would be available to a plaintiff alleging same-sex harassment, if there were credible evidence that the harasser was homosexual.” 

Further, harassing conduct “need not be motivated by sexual desire to support an inference of discrimination on the basis of sex.” For example, if a female victim is harassed in “such sex-specific and derogatory terms by another woman as to make it clear that the harasser is motivated by general hostility to the presence of women in the workplace,” then the trier of fact reasonably can find discrimination. A same-sex harassment plaintiff also may offer direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace.

To establish a retaliation claim under FEHA, the employee must prove he or she engaged in protected activity, the employer took an adverse employment action against him or her, the protected activity was a motivating reason for the adverse action, and the employer’s conduct caused harm to the plaintiff.

Claims Can Proceed
Lewis argued the trial court erred in ruling Hickman’s alleged conduct was not harassment “because of sex.” The appellate court agreed. Although the court declined to decide whether a same-gender sexual harassment claim based on sexual propositions or comments was viable in the absence of evidence of evidence of sexual interest, the evidence presented allowed an inference Hickman was motivated by sexual interest. It said Hickman’s comments, jokes, and gifts permitted a jury to infer he was interested in pursuing a romantic or sexual relationship with Lewis; thus, the conduct was “because of sex.”

Lewis also argued the trial court erred in ruling Hickman’s conduct was not “severe or pervasive” enough to support his sexual harassment claim. Hickman countered the incidents were isolated and Lewis never objected to them. The court again sided with Lewis. It determined that based on the course of alleged conduct, “a reasonable jury could conclude Hickman engaged in a pervasive pattern of harassing conduct.” Accordingly, the court concluded that triable issues of fact existed, precluding summary judgment on the sexual harassment claim. Because the court reversed summary judgment in favor of Hickman on the sexual harassment claim, it also reversed the summary judgment in favor of the city on that claim.

With respect to the retaliation claim, Lewis argued the trial court erred in excluding evidence of the alleged sexual harassment and expert testimony regarding the emotional harm he suffered as a result of the alleged harassment. The court agreed. It stated that “if Lewis had been permitted to present evidence of Hickman’s alleged sexually harassing conduct, the jury would have had a fuller understanding of the context in which Lewis’s protected activity and city adverse actions occurred.” The court continued, “The jury also could have assessed whether city’s retaliatory acts, when considered as part of an alleged larger course of harassing or improper conduct toward Lewis, caused him harm, such as emotional distress.” The court found the cumulative effect of the errors was prejudicial to Lewis and ordered a retrial of his retaliation claim.
Lewis v. City of Benicia, Cal. Ct. App., No. A134078 (March 26, 2014).

Professional Pointer: Employers need to enforce strong policies prohibiting harassment and to train employees regarding appropriate conduct in the workplace. In addition, employers should respond promptly to harassment complaints, investigate them thoroughly, and document its response. Moreover, care should be taken when considering adverse actions against individuals who previously complained of harassment to ensure any action is well-supported by documented legitimate business reasons.



Risk Solutions

Facility Use Agreements – Who needs them and why?

by Melaina Francis, Risk Manager

Before renting or approving an outside function or activity at your agency’s community center, hall, or sports field, taking these first steps can reduce the likelihood of costly liability. 

Consider the potential liability when allowing outside organizations, groups, non-profits or others to use agency facilities. Hosting a school youth group, a health awareness event, or a basketball tournament at an agency facility exposes the agency to legal liability in the event a participant is injured during the event.

Protect your agency by drafting and implementing a Facility Use Agreement. A Facility Use Agreement (FUA) helps shield your agency from liability while still allowing you to offer a space for outside groups to convene. The Agreement will also include language stating the renter/group will indemnify and hold the agency harmless. The Agreement should clearly spell-out the insurance requirements to include naming the agency as an additional insured and to provide you with a certificate of insurance and a copy of the endorsement. This transfers primary responsibility to the renter’s insurance, rather than to the agency.

If the renter or group does not have general liability insurance the agency may offer the coverage through the Authority’s Special Event Liability Program that sells general liability coverage to the renter thereby transferring the risk from the member and the Authority. Members administer the program, accept funds and issue certificates of insurance and file quarterly reports with Alliant Insurance Services with whom the Authority contracts for this program. 

Ensure that rules and regulations are clear and that provisions for security, set-up/clean-up, decorations, and equipment use are all included and that the serving or selling of alcohol is addressed (which often times is prohibited by a city’s municipal code or ordinance).

FUA is a simple risk transfer tool for the occasional request from a group or organization. When requests are frequent, for example with an organization such as the AYSO or a Little League Association, a more comprehensive agreement may be warranted that clarifies the authorization for the addition of any structures to a field and the party responsible for all related and ongoing maintenance costs, and details if certain utility or refuse expenses will be charged. 

Alternatively, mutual requests for a softball league season schedule from a school district and by the agency to said district for field requests could signal the need for a joint use agreement that can be a complex agreement for combined school play fields and park spaces. A joint use agreement contains essentials including: identifying the parties responsible for ongoing field inspection; maintenance and duty to warn; shared financial obligations for improvement, repairs, or new equipment; and a statement of mutual indemnification or duty to defend clause. Ultimately, the intent is to clarify all issues in advance to ensure that both parties are protected and fully understand their duty and obligations under the agreement. 

For more information please refer to the Authority’s Facility Use Agreement Template in the Resource Center or contact your Regional Risk Manager for assistance.