November 2015 - Issue 45

California JPIA to Offer Loans for ADA Improvements

Dealing with the Homeless

Risk Managers Roundtable - Employment Practices Liability: How to Reduce Your Exposure

Executive Academy

Roy Angel, Senior Risk Manager

Workplace Violence Q & A with Dr. Steve Albrecht, PHR, CPP, BCC

Verifying Insurance Requirements

2015 Legislative Session

News: Worthy

California JPIA to Offer Loans for ADA Improvements

The California JPIA will begin offering short-term loans to members who are interested in making capital improvements in order to comply with the Americans with Disabilities Act (ADA).  ADA compliance is a significant exposure to members, and the Authority continues to see claims arising from accessibility issues.  Working with Disability Access Consultants (DAC), a firm that specializes in ADA inspection and compliance, the Authority has implemented an assistance program to help members with their efforts to satisfy the requirements of the ADA.  The short-term loans are a part of this program.

DAC will identify barriers to accessibility and propose solutions for removal of these barriers.  However, since some members may be unable to fund necessary capital improvements for purposes of barrier removal due to budgetary restraints, the Authority is also making capital improvement matching loan funds available.  These funds are designed to help incentivize members to make needed improvements, particularly those that would otherwise be out of fiscal reach in the foreseeable future.

The matching loans will be allocated up to $1 million over each of five consecutive years, with loan recipients agreeing to repay the loans within five years of receiving the funding.

Allocating the loans to interested members will be done on a competitive basis, and will be based on the total amount of funds being requested in any single year.  Members requesting matching funds will also need to have a completed transition plan that identifies the capital improvement associated with the funding request.

The Authority will charge a percentage point above the yield to maturity at cost for all investments, as shown in the April Treasurer’s report, for loans disbursed during the following fiscal year.

The California JPIA will announce its first call for funding applications in December 2015, with future announcements occurring annually 12 months thereafter.  Specific instructions with loan terms and conditions will be provided when the application period opens.

For more information about the ADA loan program, contact Courtney Morrison, Administrative Analyst.  

News: Worthy

Dealing with the Homeless

By Roy Angel, Senior Risk Manager

On October 16, 2015, Hawaii declared a state of emergency regarding the homelessness crises on the islands just days after dismantling what was believed to be the largest homeless encampment in the nation.  Los Angeles is grappling with its own crisis, and the city is being warned by the Department of Justice that banning sleeping in the street may be unconstitutional.  How to handle the increasing numbers of homeless individuals in our cities is a complex task, and public agencies that do not manage with it in the right way could face civil lawsuits.  If you were fortunate enough to attend the session How to Handle the Homeless at the recent California JPIA Risk Management Educational Forum in San Francisco, you heard the plight of the City of Fresno firsthand.  More importantly, you heard about the lessons learned, and you received valuable tips on how to handle the homelessness problem. 

After being sued by 36 homeless individuals in a case that made national headlines (Kincaid vs. City of Fresno), and settling the case for over $2,000,000, city officials in Fresno, in conjunction with their legal counsel, created the following protocol when dealing with the homeless.  This protocol closely follows a city ordinance (AO 6-23) adopted in response to the lessons learned from this lawsuit. 

  1. The highest priority in any clean-up is to ensure the safety of all individuals involved, including the homeless and City crews.  Thus, we attempt to avoid inciting anger or hostility in our communication with the homeless.  We also examine the shelters and accumulations (piles) of materials prior to removal so that any individual who might be concealed therein is not injured, and to confirm absence of hazardous materials or companion animals.
  2. Our efforts stress cooperation with the homeless, rather than resorting to threats or intimidation.  Consistent with this approach, we do not utilize the presence of uniformed police officers at clean-ups.  Rather, uniformed officers may be used in the vicinity outside the clean-ups for purposes of traffic control.  However, instances in which police officers are present during clean-ups, they are in plain clothes. 
  3. Homeless individuals are always encouraged to remove any and all items they wish to keep during a clean-up and are provided adequate opportunity to pack and remove their belongings themselves.  In addition, homeless individuals are offered the opportunity to have an unlimited volume of their items stored free of charge for ninety (90) days. 
  4. Homeless individuals present during clean-ups are asked to help delineate between the items they wish to retain and other materials that can be disposed of by City crews. 
  5. In situations where a shelter does not have an individual present, designated city crew (after having been trained by legal counsel) will inspect the shelter to determine whether it contains personal “property of value” (as defined by AO 6-23).  In situations in which it is not clear whether an item does or does not have apparent value, property should be stored for the allotted time period (90 days) and then discarded if not claimed.  If the item is soiled or deteriorated beyond the point of utilitarian value, the item should be disposed of. 
  6. City crews do not store any item that is excessively contaminated with feces, urine, or vermin. 
  7. We do not conduct clean-ups pursuant to a fixed time line, and clean-up crews are constantly reminded that we are not in any hurry.  As such, a clean-up could be completed in one or more days, depending on the circumstances presented in each particular case. 
  8. Clean-ups are always conducted in a manner that is open to public observation.  Aside from asking the public to step aside of heavy equipment or any other potentially dangerous equipment or situation, the public should not be restricted from their opportunity to observe.   
Combating the plague of homelessness requires a team effort on the part of member agencies.  Members are encouraged to consult legal counsel when developing a protocol for homeless people in public spaces.  If you have any questions, concerns, or would like any additional information, please contact your assigned risk manager.  

News: Worthy

Risk Managers Roundtable - Employment Practices Liability: How to Reduce your Exposure

Risk Managers and Human Resource Managers and personnel are encouraged to attend the Authority’s upcoming Risk Managers Roundtable featuring the topic, Employment Practices Liability: How to Reduce your Exposure.  The Roundtable will be held at three locations in December, and lunch will be included with registration.

This roundtable will focus on the most common EPL claims submitted to the Authority, including discrimination, harassment, retaliation, discipline/termination-related claims, and accommodation/interactive process claims. Because the law is complicated and fraught with risks to employers, the session will discuss preventative strategies and best practices for reducing potential exposure.

Instructor, Traci Park, will present the first 45 minutes, discussing the legal side of the issue. After her presentation, the Regional Risk Managers will facilitate a roundtable discussion on the Early Intervention Program provided by the Authority and how that can help reduce claims.

Topics covered:

  • The Authority’s Early Intervention Program
  • The Authority’s harassment/abusive conduct prevention training
  • The high costs associated with defending EPL claims
  • Effective discipline, performance, and interactive process documentation
  • The importance of timely and thorough workplace investigations
  • The overlap and FEHA and workers’ compensation obligations
  • Basic steps of the interactive process
  • Lessons Learned: Case Studies

Dates and Locations:

Tuesday, December 8, 2015
12:00 p.m. - 2:00 p.m.
California JPIA in La Palma

Wednesday, December 16, 2015
12:00 p.m. - 2:00 p.m.
City of Pismo Beach

Wednesday, December 16, 2015
12:00 p.m. - 2:00 p.m.
City of El Centro

To register for the above training, please log into myJPIA. Once logged in, you will be able to locate the date on the training calendar. Click on the Risk Managers Roundtable title from the date chosen and then click Register Now. (If you are a Registrar, you would click - Register Others.)  For more information and registration details, please contact Michelle Aguayo or call (562) 467-8777.

News: Worthy

Executive Academy

The California JPIA will present the Executive Academy on January 20 - 22, 2016 at the Miramonte Resort in Indian Wells.  Designed for current and emerging city managers and agency executives, the Executive Academy provides a unique opportunity to work collaboratively, share smart practices, and participate in joint exercises with other senior leaders facing similar challenges.

The Executive Academy will address the legal, financial, and structural constraints of governmental agencies through the active exchange of ideas and information. Using a series of sessions presented by experienced professionals, participants will learn greater skills in key areas of local government management.

Topics include:

  • Role of an Executive in Risk Management, Leadership, and Communication
  • How the California JPIA Can Assist you in Protecting your Agency Against Claims and Losses
  • How to Handle Social Media
  • Psychology of Crisis Management
  • Succession Planning
  • Public Relations: Dealing with the Media
  • Equip Your Community with Racial Equity
  • Conflict Resolution
  • Working Effectively with Councils and Boards

“The topics and speakers were great,” shared a city manager who attended the Executive Academy in Westlake Village in 2014. “The Psychology of Crisis Management session was not only excellent, but very practical.”

This day-and-a-half academy will allow participants to focus on the information being presented as they are separated from the interruptions and distractions of organizational life.  The academy is limited to 30 participants, and the registration deadline is December 16, 2015.  For more information and registration details, please contact Michelle Aguayo or call (562) 467-8777.  You may also visit the Authority’s training website, myJPIA, to register for the academy.

Pro: Files

Roy Angel, Senior Risk Manager

Roy AngelRoy recently celebrated his one-year anniversary with the California JPIA.  Roy joined the Authority as Senior Risk Manager responsible for members in Santa Barbara, San Luis Obispo, and Monterey counties.  He has over 20 years of experience in the insurance and risk management industry as a risk manager/human resource manager, director of operations, and SIU senior investigator/claims case manager.

Asked about his tenure with the California JPIA, Roy said, “The Authority’s approach to risk management is a more forward looking, enterprise-wide approach. To achieve effective enterprise risk management, members must focus on being proactive, rather than merely reactive.”  Roy cites the Authority’s regional risk management service delivery model and loss control programs as examples. “The loans for ADA improvements and compliance program, the risk technician program, and sidewalk inspection and remediation program demonstrate the Authority’s commitment to its proactive risk management philosophy.” 

Roy has quickly developed relationships with his assigned members. “Roy has been very accessible and responsive as the Regional Risk Manager and has provided valuable support to our requests for information and assistance with our programs,” states Deb Garcia, Management Services Director with the City of Pismo Beach.  “In addition to the experience he brings to the position, he has coordinated meetings for us with Authority experts in each risk area as needed, maximizing our access to the Authority’s resources,” Garcia continued.  Roberta Greathouse, Human Resources Manager with the City of Seaside shares the same sentiment. “Roy is knowledgeable, calm, and always available to us when we have a problem or are looking for a resource. . . . My stress level is a lot lower knowing that Roy and the California JPIA are there to support us.”

Roy is an avid water sportsman: he enjoys surfing, diving, being in the ocean, and hanging out at the beach. If he had his way, “professional attire” would be defined as board shorts and flips flops. Roy and his wife have five children (aged 4 to 27 years old) and three grandchildren.  

Risk Solutions

Workplace Violence Q & A with Dr. Steve Albrecht, PHR, CPP, BCC

By Maria Galvan, Risk Manager

The thought of going to work and experiencing an act of workplace violence is one that may not cross our minds. However, attention to this issue has grown over the years, given the stories presented in the media. The most recent act of workplace violence occurred earlier this year in Virginia. Two journalists were shot and killed by a former colleague while on the air. As employers, members are required to have an effective written Injury and Illness Prevention Program (IIPP) and provide a safe work environment.

Workplace violence events can be categorized into three types. The types are defined in Cal/OSHA’s Guidelines for Workplace Security.

  • Type I: the agent has no legitimate business relationship to the workplace and usually enters the affected workplace to commit a robbery or other criminal act.
  • Type II: the agent is either the recipient, or the object, of a service provided by the affected workplace or the victim, e.g., the assailant is a current or former client, patient, customer, passenger, criminal suspect, inmate or prisoner.
  • Type III: the agent has some employment-related involvement with the affected workplace. Usually this involves an assault by a current or former employee, supervisor or manager; by a current/former spouse or lover; a relative or friend; or some other person who has a dispute with an employee of the affected workplace.

Employers with employees who are known to be at risk for Type I events are required to address workplace security hazards to satisfy the regulatory requirement of establishing, implementing and maintaining an effective IIPP. Employers are encouraged to use the Cal/OSHA's Model Injury and Illness Prevention Program for Workplace Security as a resource guide.

The following is a Q & A with Dr. Steve Albrecht, PHR, CPP, BCC. Dr. Albrecht presents various trainings for the Authority, including Safe Workplaces: When Being Nice Isn’t Working. He has provided instruction to members on this topic for 16 years. The training is updated regularly to match the trends in workplace violence prevention, awareness and response. Dr. Albrecht is internationally-known for his consulting and training work in workplace violence prevention training programs, school violence prevention, and high-risk human resources issues.

Why should municipalities care about workplace violence prevention?
“Besides the liability concerns and the duty for employers to keep all employees safe, this issue can really affect the morale of the workplace.  If people don’t feel safe at work; from taxpayers, customers, vendors, bosses, co-workers, strangers, or ex-employees, then we’re not going to get good work from them or they may feel like quitting.”

What can workplace violence prevention policies to do help keep employees safe?
“A policy is a great place to start and even today, not all agencies have a well-written, current workplace violence prevention policy.  Pieces of paper don’t save lives, but a good policy should address fair treatment, no weapons at work, no bullying, support for victims, help for employees (including those with off-the-job domestic violence problems that cross over to work), and consequences for perpetrators, including being assessed by a threat assessment or mental health professional, disciplined, fired, or arrested.”

Besides having a policy, what should an organization do to keep people safe from workplace violence?
“Training and awareness-building are two important keys.  Workplace violence prevention should start with employee orientation meetings and continue.  Live or online training classes should reinforce your security policies and tell your employees whom to notify if they feel threatened at work, to include calling the police. Human Resources, Legal Counsel, Risk Management, Safety, Facilities, all Department Directors, and even your Employee Assistance Program (EAP) provider, are all stakeholders, who should work together as a team to keep people safe.”

We hear a lot about Run-Hide-Fight as the response to someone coming in with a gun.  Is this the best solution?”
“It’s the national protocol, per the Department of Homeland Security and experts who study these incidents (besides just me).  Every employee needs to be reminded that in the rare but catastrophic possibility of an armed person coming into a work facility, they should look, listen, and respond to what they see and hear.  Running, evading, or evacuating out of the building is a good first choice, as long as leaving where they are doesn’t make things worse.  Hiding and barricading in a safe, securable room is a good second choice, if they can stay silent and keep the shooter out.  Fighting back is an as-needed third choice, only when the first two can’t or won’t work.  Employees and supervisors have done one, two, or all three of these things and survived these frightening events.”

Are you optimistic or pessimistic about the trends in workplace violence incidents?
“That’s a great question.  I’m pessimistic about the rising number of school and workplace violence shooting incidents, because according to recent FBI research, the trend line is moving up.  The more media coverage these incidents get, the more it encourages certain disconnected, depressed, disaffected, or dangerous people to act out to get the revenge they desire or make the statement they think they need to make.  I’m optimistic about the prevention steps, awareness-building, and ever-evolving training programs we’re using in our workplaces and schools. I’m optimistic about the use of Threat Assessment Teams in workplaces and schools; better police response tactics; EAP providers; and more humane, creative human resources techniques to manage current or terminated problematic employees.  We cannot predict violence, but we can certainly assess dangerousness, and that can make all the difference in stopping a potential tragedy.”

In addition to providing training, the Authority has a workplace violence prevention policy template available on the Authority’s website. If you have questions, please contact your assigned risk manager.

Risk Solutions

Verifying Insurance Requirements

By Alex Mellor, Risk Manager

Transferring risk to third parties (e.g. contractor, consultant, independent instructor, user of agency facilities) when appropriate is an important component of any enterprise risk management program. For public agencies, this frequently includes requiring insurance to support the third party’s obligation to indemnify and defend the agency in the event of a claim arising out of their activities. In order for the agency to be comfortable that the indemnification obligation can be met, it is important to review and verify insurance provided to ensure it is consistent with requirements in the written agreement.

The process of insurance verification can sometimes be confusing and time-consuming. However, the following recommendations will go a long way to expediting this process:

  • Compare the provided evidence of insurance (i.e. certificate and endorsements) to the requirements in your agency’s written agreement with the third party. Attempting to verify insurance by simply reviewing the certificate and any policy language or endorsements is a fruitless exercise since the written agreement makes clear the insurance obligations of the third party. Take each type and limit of insurance required and compare them to the coverage evidenced on the certificate.
  • Understand that the insurance certificate provides evidence of coverage, but does not modify the policies evidenced in any way or confer any rights on the certificate holder (i.e. your agency). In order to verify that the agency has been correctly named as an additional insured, or subrogation has been waived, a copy of the relevant policy or an endorsement to the policy is needed.
  • An additional insured endorsement is typically only needed for general liability. While the written agreement may also require additional insured status for auto liability, this doesn’t typically need to be verified as most commercial auto liability policies automatically provide coverage for any party liable for operation of the insured vehicle. Additional insured endorsements come in a variety of formats – some of which will expressly name your agency, and some of which will be automatic provided the written agreement requires the agency be named additional insured.
  • A waiver of subrogation endorsement is typically only needed for workers’ compensation. While general liability and auto liability policies typically waive subrogation automatically if the written agreement requires it, an endorsement is required for workers’ comp. Verifying waiver of subrogation is critical for activities where injuries to third party employees could be caused by agency property or personnel. A waiver of subrogation prevents the third party’s workers’ compensation insurer from recovering from your agency monies spent on claims for injuries to the third party’s employees.
  • Ensure that the issued date on the certificate is within the last seven days. Since an insurance certificate is essentially a snapshot of coverage at a particular point in time, the certificate needs to have been issued recently to increase the likelihood that coverage remains in place.
  • Keep track of insurance expiration dates and other important information using a basic spreadsheet. This will help to ensure that updated evidence of coverage is required before existing coverage expires.

For further information, or if you have questions, please contact your assigned risk manager.

Legislative Update

2015 Legislative Session

By Jeff Rush, Workers’ Compensation Program Manager

The 2015 Legislative Session concluded in October and Governor Brown took action on a number of bills that could impact the Authority’s members.  The Governor signed the following bills:

  • AB 438 (Chin) would have created a responsibility for employers to translate certain workers’ compensation forms and fact sheets into Chinese, Tagalog, Korean and Vietnamese.  Thanks to negotiations undertaken by employer groups including California Association of Joint Powers Authorities (CAJPA), these forms are limited to those provided by the Division of Workers' Compensation, with one exception.   
  • AB 987 (Levine) adds a new cause of action against employers by making it unlawful to retaliate against employees who make a request for a religious, mental disability or physical disability accommodation, whether or not the request is granted. 
  • AB 1124 (Perea) requires the Administrative Director to establish a workers’ compensation drug formulary on or before January 1, 2017. 
  • AB 1146 (Jones) clarifies that public entity-operated skateboard parks retain all current civil immunities when those parks also include other non-motorized, wheeled recreational devices as users of the park facilities. 

The Governor also vetoed the following bills:

  • AB 272 (Lackey) would have added volunteer peace officers to those protected by the Fair Employment and Housing Act.
  • AB 305 (Gonzales) would have eliminated many of the bases for apportionment to non-industrial factors in workers’ compensation cases. 

This year was the first of a two-year legislative session so it is possible these vetoed bills will be brought back in 2016.  The Authority will continue to represent the members’ interests by sending position letters, attending legislative events and through its affiliation with organizations like the California Association of Joint Powers Authorities  and the California Coalition on Workers’ Compensation.