June 2012 - Issue 4

New Format Generates Increased Attendance at the California JPIA Public Works Academy

The City of La Mirada Employees Gain Momentum: Lose Pounds with "Biggest Loser" Competition

Public Sector Layoffs

Million Dollar Sex Assault Lawsuit Against a Park & Recreation Department

De-Mystifying Cal/OSHA Citations

Who Pays when an Employee is in an Accident in a Personal Vehicle?

Exercise Balls in the Office

Public Works Academy

News: Worthy

New Format Generates Increased Attendance at the California JPIA Public Works Academy

The California JPIA’s Public Works Academy: Navigating the Road Ahead was held June 5, 2012 through June 7, 2012 in San Luis Obispo. The Academy marked the introduction of a new Academy format. Sensitive to participants’ time away from the office, the Academy took place over the course of one to one–and–a–half days and offered three four–hour seminars. 

"The new format was a success," said Catherine Sloan, Senior Training Specialist for the California JPIA. "The schedule not only increased the number participants attending the Academy, but made it more convenient for agencies outside of the area to attend." Seventy–five participants representing 24 agencies attended the specialized academy. 

"The Academy shared relevant information and provided good tools for dealing with employees," said Bruce Keogh, Waste Water Division Manager with the City of Morro Bay. "Even though I have attended numerous seminars, I always learn something new or have ideas reinforced by the information presented." 

Geared for newly promoted public works supervisors and managers as well as those interested in rising through the public works ranks in the future, the Academy emphasized both effective supervision and risk management skills. 

"As an aspiring future supervisor, I feel that this Academy provided a great opportunity for me to learn how to be an effective supervisor from the beginning," added Jennifer Milam, Administrative Assistant with the City of San Luis Obispo. "It provided the essential tools and techniques for supervision."

The first track of the Public Works Academy, Liability, Litigation and Risk Management, was presented by attorney Scott Grossberg. In his session Scott talked about the importance of documentation and record retention, and litigation defenses–how to keep them and how to lose them. The second track So Now You’re A Supervisor Part I and Part II, was facilitated by Dr. Steven Albrecht. Steve’s interactive session focused on hands–on role playing scenarios relating to personality problems, issues in the workplace, and the role of a public works supervisor.

Senior Risk Consultant, Bob May, presented the third session entitled Contracts Administration. Bob reviewed the Authority’s recently revised Contracts Manual with the group. Additionally, participants learned how to identify exposures, require proper insurance limits, and adequately enforce contracts. 

More information about the academies and training workshops offered by the California JPIA can be found at the Resource Center

Biggest Loser

Re: Members

The City of La Mirada Employees Gain Momentum: Lose Pounds with "Biggest Loser" Competition

When the City of La Mirada employees, Department Secretary Leticia Revilla, City Attorney Ann Herrickson, and Assistant City Manager Kevin Preglovisk decided to hold their first "Biggest Loser" contest late last year, city staff was skeptical but up to the challenge. 

Two competitions, 56 participants, and close to 400 pounds later, people are not only awed by the weight loss, but inspired by the sense of community the competition instilled within staff. 

"It feels great," said Revilla who organized the interactive challenge. Revilla not only served as a confidante to contestants at their weekly weigh-ins, she participated in the "Biggest Loser"contest shedding her goal of 10 pounds. "It makes people more accountable. There is a strong sense of trust and accomplishment that develops both individually and as a group."

The first "Biggest Loser" competition was held October 24, 2011 through January 16, 2012. The winners, and losers of a grand total of 153.4 pounds, included Josh Gire, Community Services Coordinator (28.8 pounds); Alison Moore, Community Development Manager (20.8 pounds); and Jeff Boynton, Assistant to the City Manager (18 pounds). 

"It’s a group effort," continued Revilla of the informal wellness campaign that was designed not only to help co-workers lose weight, but also stimulate physical activity including: 15 minute walks, fitness equipment instruction, and video workouts. "We shared information and exchanged healthy recipes and fitness tips with each other in monthly newsletters and by email."

Round two of the competition was held earlier this year with 29 "biggest losers" dropping a combined total of 222.6 pounds. The top losers included Gabriel Bautista, City Planner (29 pounds); Ruperto Marquez, Maintenance Worker (27.8 pounds); and Norma Stein, Secretary (19.2 pounds). 

The California JPIA congratulates the La Mirada employees on their success and initiative toward better health and wellness. 

Legal Matters

Public Sector Layoffs

by Steve Filarsky, Law Offices of Filarsky and Watt

The state’s decision to eliminate redevelopment agencies (RDAs) in order to fix a billion-dollar budget gap was upheld by the California Supreme Court in late December, after redevelopment advocates challenged the constitutionality of the action in court. Effective February 1, 2012, RDAs were officially dissolved by the State of California. While public agencies are grappling with the task of forming successor agencies and oversight boards, questions remain about how to handle potential layoffs in the wake of the RDA fallout. 

Layoffs – a dreaded, and increasingly more common, word in the public sector. Until a few years ago, it was a concept that many thought would never happen at their agency. Many agencies have a layoff policy, drafted 30 to 40 years ago, that has never been utilized; some agencies have no policy at all. A well thought out layoff process and implementation will reduce the risk of both administrative and civil litigation. It will also result in an organization more capable of providing essential services with less manpower.

It is critical that an agency review its layoff policy well before it even contemplates layoffs. Since a layoff procedure is within the scope of bargaining, including impasse resolution, an agency must allow sufficient time to complete the bargaining process. Some considerations to take into account when reviewing and drafting a policy are:

  • Seniority vs. competence vs. a hybrid of the two
  • Time in class seniority vs. agency-wide seniority
  • "Bumping" vs. no "bumping"
  • Layoff/"bumping" by department vs. agency-wide
  • Notice provisions
  • Severance provisions
  • Administrative leave pending layoff date
  • Appeal rights (see Alameda Management Employees Association v. Superior Court (2011))

Generally, the decision to layoff is not subject to the meet and confer process. However, when such a decision results in contracting bargaining unit work to a third party, the layoff decision itself is subject to the meet and confer process, Rialto Police Benefit Association v. City of Rialto (2007) 155 Cal.App.4th 1295. The effects of a layoff decision are always subject to the meet and confer process, including the workload and safety of the remaining employees.

Agencies contemplating layoffs should "dust off" their layoff policy to determine if it meets their needs in defining their future organizational structure. They should also consider contacting their employment practices counsel for assistance well before initiating the layoff process. 

The Court Report

Don’t let volunteers go unsupervised. Park District fails to address questionable volunteer activity; sex assault victim gets $1.5 million in Oak Harbor pool lawsuit.

[Reprinted from Southeastern Security Consultants, Inc.(SSCI). SSCI is the background screening provider for the National Recreation and Park Association]

Million Dollar Sex Assault Lawsuit Against a Park & Recreation Department
June 6th, 2012

A past member of the Aquajets swim team who was sexually assaulted by a former swim coach in the 1990s won a $1.5 million settlement from North Whidbey Park and Recreation District.

In addition, another alleged victim has filed a lawsuit and a third has hired an attorney. "My sense is that other girls will be coming forward," said Lincoln Beauregard, a Tacoma attorney who is representing the victims alongside lawyers Jay Krulewitch and Michael Kolker.

The women, who were young girls at the time of the abuse, claim they were sexually assaulted by Andrew "Andy" King in the 1990s. King was the swim coach and the aquatics director at Oak Harbor’s John Vanderzicht Memorial Pool, which is owned and operated by North Whidbey Park and Recreation District.

King is currently serving 40 years in a California prison after pleading no contest to 20 child molestation charges. Detectives in San Jose uncovered during a 2009 investigation that King is a serial pedophile who’s raped and molested dozens of girls while coaching swimming over a 30-year career.

In Oak Harbor, King started molesting a promising young swimmer in 1994, when the girl was just 12 years old. The abuse continued until 1997, when King mysteriously disappeared right before the park and recreation board was scheduled to discuss complaints about his inappropriate behavior with young female swimmers.

The girl reported the abuse to police in 2000. Teri Gardner, then a detective with the Oak Harbor Police, investigated the allegations, but she and the chief criminal prosecutor felt there was not enough evidence to charge King.

By then, King was coaching in California and had moved on to new victims.

Krulewitch said the police, the prosecutors and officials at the park district "missed the boat" by not doing anything, despite obvious signs. King would massage the little girls, do "weigh ins" with them in private, have them sit on his lap, buy them roses, invite them over at his house and take them on out-of-town "dates."

King was "a master manipulator" who convinced everyone that the victim was a bad girl and shouldn’t be believed, Krulewitch said.

"She was courageous for coming forward in 2000 and she was courageous in bringing the lawsuit," he said. "The settlement was really a vindication for her and all the girls he abused in Oak Harbor and elsewhere." 

It’s unclear how the lawsuits will affect the finances of the district, which is insured by Enduris. Harvey Prosser, a longtime elected commission for the district, was reached by phone Tuesday, but would not discuss whether taxpayer funds will be used in the settlement.

"I think it’s confidential and I’m not going to tell you, so cross me off your list," he said before hanging up.

The attorney for the park district and a spokesperson for the insurance company did not return calls for comment.

Krulewitch said the district was liable for the damages because officials "knew or should have known" that the abuse was occurring. Not only were signs ignored, he said, but the district didn’t do a responsible background check before "jumping" to hire King, an experienced USA Swim coach.

"We believe that if they looked into his background, they never would have brought him to Oak Harbor," he said, referring to allegations that King had molested at least one girl before coming to Oak Harbor.

In addition, Krulewitch said King had virtually no supervision after he became both the swim coach and the aquatics director.

"It was the perfect system for a master manipulator and serial pedophile," he said. The woman’s lawsuit against North Whidbey Park and Recreation was filed in King County Superior Court last year. The lawsuit originally asked for $15 million in damages. The second alleged victim filed a complaint in March and additional lawsuits may be on the way.

Beauregard said his client still struggles with the effects of the abuse, but has a successful career in the insurance industry and is working on an MBA.

"She’s doing well," he said. "She’s a fighter." 

Risk Management Solutions

De-Mystifying Cal/OSHA Citations

by Bob May, Senior Risk Consultant

Members sometimes ask the question "What should we do if we receive an OSHA citation?" For example, a member agency recently received two citations resulting from Cal/OSHA’s investigation into a worker injury. The citations, accompanied by penalties of $5,935, were as follows:

  1. Non-compliance with requirement to report serious employee illness within 8 hours of knowledge. CCR Title 8 §342. Reporting Work-Connected Fatalities and Serious Injuries, and;
  2. CCR Title 8 §3276(e) Care, Use, Inspection and Maintenance of Ladders.

So, what should you do if your agency receives a Cal/OSHA citation? 

First, remember that citations and associated penalties are not automatic, and every employer is provided an opportunity to appeal to the Cal/OSHA Board. Since penalties are due within 15-days of receipt of the citation and notification of penalties, members must act quickly in order to appeal within writing or by telephone within those 15 days. If the 15 working-day deadline is missed, the citation and notification of penalties becomes a final order of the Appeals Board, not subject to further review by any court or agency. 

Second, when an employer appeals the proposed citations and penalties, the local Cal/OSHA enforcement office will review the totality of the inspection and written violations. In this setting, you will be given the opportunity to "share your side of the story," as there may be mitigating circumstances the issuing inspector failed to take into consideration when issuing the citations and penalties. 

Third, remember to contact the Authority for assistance. In the above example, the member was encouraged to appeal the citation and penalties, and also review its safety practices and programs. In addition, additional training on reporting workplace injuries and illness was provided to its staff. The member notified Cal/OSHA of these actions as part of the appeal, and Cal/OSHA responded by reducing the penalty to $2,800.

In conclusion, remember that Cal/OSHA can make unannounced visits to worksites to ensure compliance with health and safety regulations. In addition, Cal/OSHA conducts site inspections in cases of imminent danger or industrial accidents; fatal injury to one or more employees; serious injury or illness; serious exposure; or inpatient hospitalization of an injured worker, regardless of duration. Also, inspectors will visit worksites in response to employee allegations or complaints concerning workplace safety.

For information about Cal/OSHA and the inspection process, or to learn about the recent Authority roundtable on De-Mystifying Cal/OSHA, contact your assigned risk consultant

Risk Management Solutions

Who Pays when an Employee is in an Accident in a Personal Vehicle?

by Jim Thyden, Insurance Programs Manager

Many members have a policy that requires employees to use their personal vehicle for agency business. These types of policies are in place for different reasons. Perhaps, the member chooses not to own vehicles, or the use of privately owned vehicles is more efficient and allows employees flexibility in conducting member business.

The question often arises, "Who is responsible for the insurance coverage on a personal vehicle while conducting agency business?" Well, as with many things, the answer is "it depends." 

In the State of California, insurance follows the vehicle. Insurance Code §11580.9 states that: Where two or more policies affording valid and collectible liability insurance apply to the same motor vehicle in an occurrence out of which a liability loss shall arise, it shall be conclusively presumed that the insurance afforded by the policy in which the motor vehicle is described or rated as an owned vehicle is primary and the insurance afforded by any other policy shall be excess.

This means that if an employee using his or her private vehicle for member business purposes is involved in an accident which results in injury or property damage, the employee’s own insurance must respond to defend the employee. The carrier may also have a duty to defend the member.

Should a claim exceed the limits of the employee’s liability insurance coverage, the member’s liability protection program would respond. However, the member is not legally liable for any damage to an employee’s vehicle except under specific circumstances according to the member’s vehicle use policy. 

It also depends on whether the member has a Vehicle Use Policy and, if so, what the Policy states. The Authority recommends that members establish a Vehicle Usage Policy that includes the following guidelines: driver training, license requirements of the particular vehicle being used (Class A, B or C), reporting of accidents, DMV pull notice program, insurance requirement with minimum amounts per person and occurrence, and use of electronic devices. The Authority’s Vehicle Usage Policy template is available on the online Resource Center. 

One of the recommendations in the Vehicle Use Policy is for members to require insurance of all employees who drive their private vehicles on the job. The Authority recommends policy limits of not less than $100,000 per person/ $300,000 per occurrence (or a combined single limit of $300,000) and property damage coverage in an amount not less than $25,000 per occurrence.

For more information, please contact your agency’s assigned risk consultant

Risk Management Solutions

Exercise Balls in the Office

by Diana Rich, Workers’ Compensation Program Manager

A trend has been emerging that supports the use of exercise balls in the workplace as replacements for desk chairs. The theory is that exercise balls combine core-strengthening elements with maneuverability and versatility, and thereby reduce spinal compression. 

The Authority’s ergonomic experts advised that there is no scientific evidence to support these claims. While the use of exercise balls as part of an overall physical conditioning regimen can be beneficial, sitting on an exercise ball for prolonged periods may be harmful.

Muscle contraction that occurs during exercise can be detrimental when maintained for extended periods. Specifically, using exercise balls causes the muscles of the pelvis and spine to contract and pull the body out of optimal alignment for desk work. Additionally, because exercise balls lack arm rests and back supports, the upper body might not be properly and fully supported. The use of an armrest takes some strain off the neck and shoulders and makes you less likely to slouch. 

Prolonged improper sitting posture and office equipment that promotes bad posture can damage spinal structure and cause recurring back and neck pain. When sitting and resting your arms on a desk, your upper arms should be parallel to your spine. When you look at your computer, your gaze should be aimed at the middle of your screen. Your thighs should be parallel to the floor with your feet planted firmly on the ground. Keep in mind that you might just as easily slouch on a stability ball as you would in a chair, so practice good posture regardless of the seat.

There is also the issue of a safety hazard in the workplace since the ball is inherently unstable, further the lack the upper body adjustability even if they are put on a stand to elevate the individual high enough for proper alignment while using a keyboard is questionable. There is also the liability issue of the ball exploding due to increase weight or over inflation and people actually falling off. There are other chair designs that may accomplish the same posture and trunk toning goals as the ball, but also provide adjustability and stability which is really the key. 

Contact your assigned risk consultant for more information.