Issue 115 - September 2021

Risk Management Educational Forum: 2021 Capstone Award Finalists Selected

The 2021 Capstone Award finalists have been selected and will be recognized at the Authority’s 26th Annual Risk Management Educational Forum at the Catamaran Resort Hotel in San Diego. The Capstone Award is presented each year to an individual that best exemplifies the practice of risk management in the public sector.

Nominations for the Capstone Award were received from across the Authority membership, and finalists for the award were determined based on the following key criteria:

Works to support traditional or enterprise risk management efforts for the member agency
Develops, implements, and administers loss prevention and loss control programs to mitigate risk exposures for the member agency
Coordinates support systems that serve the member’s risk management goals and needs
Influences others in developing quality risk management programs for the member agency

The Authority is pleased to announce this year’s finalists:

Rachel Bowman (Administrative Analyst, City of Big Bear Lake)
Shannon Buckley (Director of Administrative Services, City of Lake Elsinore)
Dorna Farhadi (Senior Management Analyst, City of Laguna Niguel)
Arabo Parseghian (Division Manager, City of La Cañada Flintridge)

One of these finalists will be honored as the Capstone Award recipient during a ceremony at the Forum on Thursday, October 7, 2021.

Risk Pool Finance Series: Hard Markets

One of the benefits of being in a risk pool is having a degree of insulation from hard insurance market cycles. The insurance marketplace ebbs and flows and public entity risk pools provide an important buffer to the volatility.

Soft markets are characterized by stable premiums, broad coverage, relaxed underwriting criteria, higher available limits, and more competition among insurance carriers for new business. Conversely, hard insurance markets bring higher premiums, less coverage, more stringent underwriting, less available capital, and fewer companies selling insurance which makes coverage more difficult to find at reasonable prices.

The current hard market began in 2019 and was precipitated in large part by an increase in claims from natural disasters and catastrophic events, social inflation accompanied by large litigation payouts, low investment returns from fixed income portfolios, and economic uncertainty.

During these challenges, California JPIA members are insulated from the full impact of the hard market because the Authority optimizes its mix of self-insurance and purchased insurance.

For example, in the 2021-22 coverage structure of the liability programs, only 26% of the total insurance cost was composed of excess and reinsurance premiums or “pass-through premiums,” which are subject to market pricing. 74% was self-insured funding for claims and claim-related expenses. This means that about 3/4^ths of the total liability insurance cost is determined by internal factors such as the Authority’s own loss history, exposure profile, funding policies, and actuarial analysis; all of which allow for some degree of control.

Admittedly, external factors can potentially sneak in through the back door and be reflected within the Authority’s loss history such as social inflation, however, the remedy for that is direct investment in risk management and member support services. To this end, the Authority partners with members to implement long-term, customized strategies for managing risk, and invests in loss prevention programs, cost containment initiatives and provides comprehensive training resources. If risk management is the first line of defense, best practice claims management techniques are the second. With these measures effectively in place, the indirect impact of external factors on the Authority’s total cost of risk is mitigated substantially.

Training Update

Providing multiple modes and formats of training is important, especially during these challenging times. To that end, the California JPIA training staff has developed new online and virtual classroom training courses to ensure that your agency receives necessary safety, compliance, best practices, and professional development training.

Included in this development are online safety courses that fully meet Cal/OSHA safety requirements in the same way as our classroom training. Many of these trainings are required annually and your agency may find that these serve as a useful way to provide necessary training to your employees. These trainings are on-demand and self-paced, and are useful for employees who miss scheduled trainings or when it is difficult to schedule all employees at one time.

These courses include:

Asbestos Awareness – Refresher Training
Bloodborne Pathogens and Biohazards – Refresher Training
Confined Space – Initial Training
Portable Fire Extinguisher – Initial Training
Lead Awareness – Refresher Training
Lockout Tagout – Refresher Training
Hearing Conservation – Refresher Training
Heat Illness – Refresher Training
Heat Illness for Supervisors – Refresher Training
Safe Driving – Refresher Training
Safe Driving of Commercial Vehicles – Refresher Training
Shop Safety 101
Shop Safety 102

In addition to the safety trainings listed above, the Authority has recently developed a number of additional compliance, best practices, and professional development online trainings. These include:

Conflict Resolution
Business Writing Essentials
Working in a Fishbowl
Workstation Ergonomics for Home and Office
Managing Your Work Team Remotely
Effective Communication
Maximize Your Time
Meeting Management
Excellent Customer Service
Rooting Out Implicit Bias
Workplace Harassment Prevention for Non-Supervisors
Workplace Harassment Prevention for Supervisors
Workplace Harassment Prevention for Local Agency Officials

The new workplace harassment prevention trainings do not require taking multiple modules in order to meet the full regulatory requirements as previous online courses.

In addition to the training listed above, the California JPIA has approximately 370 e-learnings, short take training videos and other online content available in our catalogue on myJPIA.org. Many more online training courses are in development. For additional information about the Authority’s training content or how we can help your agency with training during this challenging time, please contact Ryan Thomas, Training and Loss Control Specialist, at rthomas@cjpia.org or (562) 631-1360.

California JPIA Offers Learning Opportunities for Members and Attorneys at Workers’ Compensation Symposium and Liability Attorney Summit

The California JPIA’s 2021 Workers’ Compensation Symposium and Liability Attorney Summit, both in their second year as fully digital experiences, provided members, counsel, and staff with insights on best practices and emerging issues.

“The Authority, along with our members and partners, has embraced a new culture of virtual training,” said Training and Loss Control Specialist Ryan Thomas. “We appreciate how technology has empowered our staff to provide members with access to the professional development opportunities and current information that are essential to managing risk and reducing liability.”

The Workers’ Compensation Symposium, held virtually on August 5, provided an in-depth perspective on current workers’ compensation topics. The agenda, which included a series of four 30-minute presentations over two hours, covered subjects including the Benefits of Telemedicine and Accommodations in a post-COVID World.

Taha Ahmad, MD, MPH, chief of the Kaiser Permanente On-the-Job clinic (KPOJ) at the Panorama City Medical Center in Southern California, presented on the topic of Vaccines, Long Haul COVID and Mental Health. Dr. Ahmad, who is Board Certified in both Internal Medicine and Occupational Medicine/Preventive Medicine, also serves as a KPOJ Southern California Physician Ambassador, engaging with employers and insurance carrier partners on educational topics and to understand their unique needs and requests.

The event concluded with a 2021 Legislative Update.

The Liability Attorney Summit, held virtually on July 29, was an exclusive event for attorneys and their associates who work on the Authority’s liability cases. The summit provided opportunities for learning, information-sharing, and discussion, with curriculum that focused on emerging case law, litigation strategies, and liability claims trends, including summaries of trial results and the current challenging litigation environment.

Agenda items featured during the summit included Trial Tactics to Avoid Run Away Verdicts, presented by Wesierski & Zurek partners Frank D’Oro and David Ferrante-Alan, as well as a Law Enforcement Defense Update presented by Gene Ramirez and Missy O’Linn, both partners at Manning & Kass, Ellrod, Ramirez, Trester LLP. Dan Barer, a partner at Pollak, Vida & Barer, presented an appellate update that highlighted five current matters relating to the release of officer records, use of force, the First Amendment, late claim, and design immunity.

“The Liability Attorney Summit once again proved to be a great opportunity for the Authority’s defense counsel to gather, learn, share knowledge, and improve their respective abilities to successfully defend the members,” said Liability Program Manager Paul Zeglovitch.

Bill Expanding Public Access to Police Misconduct Records Approved by California Senate

By Christine N. Wood, Director of PRA Services and E-Discovery Counsel, and Nikki Moore, PRA Services and E-Discovery Attorney, Best Best & Krieger LLP

Originally published on September 7, 2021. Reprinted with permission from Best Best & Krieger LLP.

Gov. Gavin Newsom Must Sign or Veto by October 10

The California Legislature approved Sen. Nancy Skinner’s Senate Bill 16 on September 2, putting the question of whether to require disclosure of more police records before Gov. Gavin Newsom. He must sign or veto the bill by October 10.

SB 16, which builds on the landmark SB 1421, greatly expands the types of police records that must be disclosed, adding four categories to the four existing disclosure mandates. SB 16 would require disclosure when there is:

a sustained finding involving a complaint that alleges unreasonable or excessive force;
a sustained finding that an officer failed to intervene against another officer using force that is clearly unreasonable or excessive;
a sustained finding made by any law enforcement agency or oversight agency that a peace officer or custodial officer engaged in conduct including, but not limited to, verbal statements, writings, online posts, recordings and gestures involving prejudice or discrimination against a person on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status; or
a sustained finding made by any law enforcement agency or oversight agency that the peace officer made an unlawful arrest or conducted an unlawful search.

The bill delays implementation for all four new categories, giving agencies until January 2023 before they must produce these newly accessible records.

These additional notable provisions of the bill, discussed below, will go into effect Jan. 1, 2022 if the measure is signed:

Records with no sustained finding of misconduct must be retained for at least 5 years and records related to sustained misconduct must be retained for a minimum of 15 years.
Records relating to an incomplete investigation must be released if an officer resigned during the investigation.
Whistleblowers and victims are added to the list of persons whose identities are required to remain confidential.
Records shall be provided at the “earliest possible time” and “no later than 45 days from the date of a request for their disclosure” unless the law specifically permits a longer response time.
An agency may only charge the direct cost of duplication for the production of these records, in line with the Public Records Act, and not for searching or redacting records.
Attorney-client privilege does not prohibit the disclosure of factual information provided by the public entity to its attorney or factual information discovered in any investigation conducted by, or on behalf of, the public entity’s attorney; nor does it prohibit disclosure of billing records related to the work done by the attorney so long as the records do not relate to active and ongoing litigation and do not disclose information for the purpose of legal consultation between the public entity and its attorney.
A public agency hiring a peace officer must review any files that must be disclosed by section 832.7 before hiring the officer.

If the governor approves SB 16, law enforcement agencies will face additional work to produce more police records and police personnel files. Every California law enforcement agency can expect to receive requests for each new category of disclosure if this law goes into effect. As with the passage of SB 1421, a flurry of litigation may also ensue and disputes over the law’s application will garner substantial public interest.

Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts, facts specific to your situation or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information herein.

Public Records Act’s Catchall Exemption Applies To COVID-19 Outbreak Location Information

By Denise S. Bazzano, Partner, Chad W. Herrington, Partner, and Thomas D. Jex, Partner, Burke, Williams & Sorensen, LLP

Originally published on August 30, 2021. Reprinted with Permission from Burke, Williams & Sorensen, LLP.

The Court of Appeal recently considered the exemption found in the California Public Records Act (Government Code § 6255 (a)) often referred to as the “catchall” or “public interest” exemption in Voice of San Diego v. Superior Court of San Diego County (County of San Diego) (2021) 66 Cal.App.5th 669 as modified (July 27, 2021) and determined that it was appropriately applied to certain COVID-19 outbreak location information withheld by the County of San Diego (“County”). This case provides important guidance on the application of the catchall exemption that is so often relied upon by public agencies when responding to public record requests.

On April 10, 2020, the Voice of San Diego, a news media organization, sent the County a public record request seeking copies of epidemiological reports sent to the State of California showing the results of the County’s investigative contact tracing efforts from January 1, 2020 to April 10, 2020. The County denied the request under Government Code section 6255, which provides that a record is exempt from production under the Public Records Act if the public agency can demonstrate that, on the facts of the particular case, the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record. The Voice of San Diego sued the County to obtain the requested records (“Petition”). The Petition was subsequently amended twice to add two other news media organizations, KPBS Public Broadcasting, and San Diego Union Tribune (collectively, “Petitioners”) that had made similar public record requests to the County, both of which were also denied.

In an effort to comply with the Petitioners’ public record requests, the County ultimately released a spreadsheet that the County’s Public Health Officer maintained showing each outbreak of COVID-19 in the County. The spreadsheet included the applicable dates of the outbreak, the city where it occurred, the number of people involved, and whether the outbreak occurred in a community setting, a skilled nursing facility or a non-skilled congregate living facility. Although the County released the spreadsheet, it redacted columns labeled “Location,” “Location Address,” “Outbreak Number,” “Internal Tracking Number” and “Licensed Beds.” Although the specific location of the outbreak was redacted in the spreadsheet, for each outbreak in a community setting, the spreadsheet did show the type of location where the outbreak occurred, i.e., a restaurant, a grocery store, a gym, a salon, etc. The County maintained that the redactions were justified under the catchall exemption in Government Code section 6255(a) but also under Government Code section 6254(k), which allows a public agency to withhold “[r]ecords the disclosure of which is exempted or prohibited pursuant to federal or state law” as certain information was required to be kept confidential pursuant to California Code of Regulations, title 17 section 2502(f).

The Petitioners and the County agreed to narrow the issues for trial and focused only on whether the “Location” and “Location Address” columns of the spreadsheet should be produced without redaction. The trial court denied the Petition under both grounds of exemption asserted by the County.

The Court of Appeal agreed with the trial court and found that the County met its burden of proof and that the uncontroverted declaration of the County’s Health Officer showed that disclosure of the exact name and address of an outbreak location would have a chilling effect on the public’s willingness to cooperate with contact tracing efforts. As the County explained, “[c]ontact tracing only works when those that are being interviewed are completely honest and forthcoming with relevant information. The Department of Public Health’s investigators assure those they interview that the information they provide will be kept confidential.” The County also maintained that during a deadly pandemic such as COVID-19, contact tracing is a major pillar in fighting the spread of disease.

The Court rejected the Petitioners’ argument that the declaration of the County’s Health Officer was opinion “solely supported by conjecture” and that there was no statistical data or scholarly work to show a linkage between outbreak disclosure and contact tracing. The Court also rejected the Petitioners’ argument that the declaration was not credible because the County had publicly disclosed the locations of other disease outbreaks such as hepatitis A and tuberculosis and the specific number of COVID-19 cases connected with students at San Diego State University.

Instead the Court determined that the County’s Health Officer was not unduly speculative or vague because the dangers to the public from the spread of disease during the COVID-19 pandemic are real and concrete. The Court also found that prior instances of disclosure were distinguishable from the COVID-19 contact tracing that was at issue in this case.

Having determined that the County had identified an important public health reason for the redaction of the “Location” and “Location Address” from the information in the spreadsheet the Court next considered the countervailing public interest in obtaining the information which would identify the location where an outbreak occurred and information that would show how the government is performing in combating the COVID-19 crises. While the Court conceded that the public does have a keen interest in finding out the exact location where outbreaks have occurred, that information would not have meaningful value in helping the public avoid infection with COVID-19 and that providing the locations would not improve the public’s ability to assess the government’s response to the pandemic. After weighing these two interests, the Court confirmed that the County of San Diego was justified in redacting information that identified confirmed COVID-19 outbreak locations and location addresses given that contact tracing is so vital in the fight against the spread of COVID-19 and that voluntary and candid public cooperation with contact tracing could only occur if the public was assured that information provided would be kept confidential.

ReClaim: Trail Immunity

To help members identify and reduce the cost of claims involving cases where the application of governmental immunities may be a potential dispositive defense, the California JPIA has launched ReClaim, a new awareness campaign. This important, data-driven initiative will help members understand and address high-impact claims so that they can redirect critical funding toward important programs and services.

Trail Immunity is the third of three specific governmental immunities on which the California JPIA’s ReClaim campaign will focus this summer. To receive an alert when new materials are available, please contact Management Analyst Courtney Morrison.

The California Department of Parks and Recreation, home to the largest state park system in the United States, stewards more than 3,000 miles of recreational trails. California’s counties, cities, and special districts also host additional thousands of miles of trails that welcome hikers, runners, cyclists, and equestrians to exercise and explore nature. Attracting more users than any other type of recreational facility, trails enhance the physical and mental wellness of residents and visitors throughout California.

Trail Immunity (CA Govt. Code Section 831.4) protects public entities from liability for injuries caused by a condition of a recreational trail. Applying to both paved and unpaved or natural trails, the immunity is intended to motivate municipalities to permit recreational use of their property. Trails typically will retain their immunity protection provided the condition complained of is an integral part of the trail or directly related to the trail itself rather than the land independent of a trail.

The immunity does not apply to arterial roadways or other paved roads, unless the public entity reasonably attempted to provide adequate warnings of the existence of any condition of the paved trail, walkway, path, or sidewalk that constitutes a hazard to health or safety.

To prepare to facilitate asserting a trail immunity defense, the California JPIA recommends that members take the following actions:

Develop policies and procedures encouraging safe and proper use of trails by residents and visitors to your community.
Designate and allocate adequate resources for a trail management team—or an individual or individuals—to assume responsibility for appropriate acquisition, identification, planning, inspection, operation, maintenance, and coordination of your agency’s trails.
Document trail plans, and regularly update trail maps to reflect current conditions.
Coordinate planning and management with internal and external stakeholders, including adjacent property owners or other local and regional agencies.
Create a sustainable notification system for the public to notify your agency or its representatives of trail concerns.

Some member agencies have formed partnerships with local volunteer organizations to steward their communities’ trails. In the City of La Cañada Flintridge, for example, the nonprofit La Cañada Flintridge Trails Council serves as informant, collaborator, and ambassador. Volunteers alert staff to trail-related issues so that they may be resolved promptly, maintain the city’s trail map, and provide strategic guidance on improvements, policy development, and usage protocols.

For more information, please read the California JPIA’s white paper on trail immunity, which explains trail immunity, explores an extensive series of key court cases interpreting the immunity, and outlines actions agencies can take to help establish and maintain the immunity.

ReClaim Campaign Roundtable Features Governmental Immunities

The California JPIA’s quarterly Risk Manager Roundtables provide opportunities for members to explore important topics and share experiences with their peers, serving as a forum for open discussion and dialogue about timely issues. This year, a new virtual format has leveraged a webinar platform and breakout rooms to facilitate not only insightful presentations but also peer engagement.

August’s roundtable drew 75 attendees for a robust discussion about lessons learned in the realm of governmental immunities, including design, trail, and hazardous recreational activity immunities. Speakers included John Barber, partner at the Law Offices of Barber & Bauermeister; Ed Richards, partner at Kutak Rock; David Ferrante-Alan, junior partner at Wesierski & Zurek LLP; and Josh George, partner at Adamski Moroski Madden Cumberland & Green LLP.

The topic of governmental immunities was presented as part of the California JPIA’s ReClaim awareness campaign, which defines potential claims affecting public agencies, educates staff on specific actions necessary to manage those exposures, and integrates those actions into risk management strategies.

Since 2016, the California JPIA has paid over $46 million to settle liability claims that could have potentially been defended with the application of governmental immunities. These include roadway and street design claims, recreational accident claims, and claims occurring on trails. Governmental immunities protect municipal agencies from tort lawsuits arising from many of these claims, falling within the category of qualified immunities, which protect local governments from liability only when certain conditions are in place.

“The session was a good refresher on how governmental immunities may be the first layer of protection for a city when preparing its defense,” said Mike James, ICMA-CM, who holds dual responsibilities as assistant city manager and public works director for the City of Lemon Grove.

Changes to the Memorandum of Coverage – Liability Program

Throughout each coverage period, staff continually evaluates the Authority’s Memoranda of Coverage for sections that should be considered for clarification, amendment, or change. These changes accomplish the goal of providing an easy to follow, fair coverage document for the Authority’s membership.

On June 23, 2021, the California JPIA Executive Committee approved revisions to the Memorandum of Coverage – Liability Program, as follows:

Page 3-4 – Protection Limit; Additional language was added to clarify how coverage will be applied when faced with an employment claim spanning multiple coverage periods. This is also reflected on Page 3 of Endorsement 2 for the excess liability program, and it also clarifies application of the member retained limit.

Page 15 – Definition of Weapon; Created definition for new term in the MOC. Necessary for inclusion of new Exclusion “GG” for weapons in the workplace.

Page 16 – Exclusion “E”; Add additional language to the exception to the exclusion for inverse claims to include fire, sewer backup and construction activities due to recent claims and our intent that matters such as that be covered.

Page 20 – Exclusion “P”; Added to the exclusion to include claims for “by-district” or “at-large” elections.

Page 21 – Exclusion “W”; Added a new exclusion relative to claims by member employees or councilpersons for expenses incurred in defending administrative actions.

Page 24 – Exclusion “GG”; Added a new exclusion relative to claims that involve weapons in the workplace, unless it is involving an employee that is certified by POST to carry a weapon as part of their job duties.

Page 25 – Protected Party’s Duties in the Event of an Occurrence or Claim; Added language to confirm that failure to adhere to these duties may result in a denial or recission of coverage, and that the Executive Committee governs that process.

Endorsement 1; Added clarification that the most the Authority will pay for the Organic Pathogens sublimit is $1,000,000 in the primary liability program and $1,000,000 in excess of the member retained limit in the excess liability program. We have created this Endorsement in order to address the exposures related to COVID 19 and limit the Authority’s exposure.

You can access the current Memorandum of Coverage – Liability Program on our website. Your agency’s personalized Memoranda of Coverage and Program Certificates for 2021-22 are available for download. Members can go to cjpia.org, then click on Coverage and then Memoranda of Coverage. Log in to land on your agency’s Organization page in our Member Portal and have access to this year’s Memoranda and Program Certificates.

If you have any questions about coverage related issues, please contact Paul Zeglovitch at pzeglovitch@cjpia.org or (562) 467-8786.

Newsletter

Issue 115 - September 2021

NEWS: WORTHY

RISK SOLUTIONS

COVERAGE MATTERS