November 2012 - Issue 9

Remembering Larry Van Nostran

Educational Forum is a "Masterpiece"

Alexander Smith, Finance Director

Employer’s "honest belief" employee abused medical leave no defense

Fire Safety: Holiday Safety Tips for Public Buildings

Larry Van Nostran

Remembering Larry Van Nostran

by Jonathan Shull, Chief Executive Officer

Larry Van Nostran, President of the Executive Committee, passed away at his home on November 9. He was 79 years old. He had been released from the hospital a week earlier with a progressive and incurable lung disorder. 

I visited with Larry the week he passed away. The Authority’s 17th Annual Risk Management Educational Forum was set to take place in San Francisco on November 7. Larry was saddened his illness would keep him from attending the Forum, as he had enjoyed attending all of previous events. He was pleased so many members would be in attendance, and he affirmed the Executive Committee’s decision to waive of all member registration fees and the creation of a scholarship program to attend the educational forum.

We talked about his service to the California JPIA. He said, "I think the decision that was made to form the JPIA was probably one of the wisest decisions that’s been made by cities in my tenure, and I’ve been 37 years on the city council. It solved a problem then that cities were facing, and certainly that problem is even more existent today, as far as how to protect the members."

Larry was elected president of the Executive Committee in 1990, and was the longest-serving president in the Authority’s history. The Authority was fortunate to have Larry on the Executive Committee during some of its most tumultuous times. His helpful hand was beneficial to the members as the Authority addressed the second insurance crisis in the mid-1980s, as well as ushering-in profession management to handle the day-to-day business of running the organization.

Since its beginning, the Authority has placed a strong emphasis on the needs of members. Over the years, under Larry’s leadership, the Board of Directors and Executive Committee have dedicated resources for the continued enhancement of programs and services that seek to fulfill a long-held commitment to unparalleled risk management solutions and unequalled member services. 

Van Nostran was born in Seville, Ohio in 1933 and moved to Lakewood in 1958, just four years after the city was incorporated. He was active in Lakewood civic life for over 50 years, including membership in the Elks Club, Jaycees, Kiwanis Club, Lakewood Pan American Association, and Masonic Lodge & Scottish Rite.

Van Nostran began his service in Lakewood city government in 1971 as a member of the Traffic and Safety Commission. As a council member he was a longtime member of the Public Safety Committee. He believed firmly that there’s no more important value than keeping a community safe. 

He was the longest-serving council member in Lakewood’s history with 37 years on the governing body. First elected to the council in 1975, he served as mayor of the city nine times and was serving his tenth term on the council when he passed.

Howard Chambers, who has served as Lakewood’s city manager since 1976, said, "I’ve known Larry throughout my entire career in Lakewood. For me, he was a mentor, an advocate and a friend. For Lakewood, he was a pillar of strength. In Larry, I saw a man who always fought the good fight, who never wavered in his convictions, and who lived and breathed the genuine spirit of his city each day." 

Larry cared similarly strong about the success of the Authority, and his legacy here will be a lasting one. Personally, I will remember his trademark "All, Aboard!" used to gather the Executive Committee for each monthly meeting, and the engaging handshake delivered by his large, enveloping hands.

Van Nostran is survived by his wife Charlene, sons Dennis and David, five grandchildren and ten great-grandchildren. 

Juliet Funt
Keynote speaker, Juliet Funt, presented Overcommitted, Overwhelmed, and Over It!

News: Worthy

Educational Forum is a "Masterpiece"

The California JPIA’s 17th Annual Risk Management Educational Forum: The Art of Risk Management held November 7 – 9 at the Mark Hopkins Hotel in San Francisco was deemed an exceptional work of art. Due to the generous contributions of sponsors and the Authority’s Executive Committee’s sensitivity to the cost of professional development for agencies, member registration fees were again eliminated for this year’s "three-day masterpiece-in-the-making" which contributed to an attendance of over 225 people.

The educational forum kicked off on November 7 with a four-hour opening session entitled The Fine Art of Leadership. Presented by organizational consultants Dr. Steve Albrecht and Jeff Bills, the session was an interactive study of leadership characteristics emerging from today’s great organizations. The leaders of these highly successful organizations exhibit distinct changes in core competencies, different from the leaders of the past. Participants were presented with innovative approaches to guide their agencies though these challenging and constantly-changing times. 

This year’s keynote speaker was Juliet Funt, daughter of Allen Funt from the Candid Camera show. Her presentation, Overcommitted, Overwhelmed, and Over It! Success Skills for the Blisteringly Busy was a humorous look at common sense ways to cope with the pace and quantity of your daily tasks and keeping "white space" on your calendar. Funt shared stories of how real people have rediscovered the excitement of tackling the challenges of work and savoring those precious moments with family and friends. 

The significance of the California JPIA’s annual Risk Management Educational Forum was underscored this year by the support provided from 34 sponsors that together contributed $131,000 to support the various forum endeavors. At the highest tier of sponsorship, the California level, were the firms of Carl Warren & Company, Cihigoyenetche, Grossberg & Clouse, and York Risk Services Group, Inc. 

Mark your calendar now for the 18th Annual California JPIA Risk Management Educational Forum to be held October 9 — 11, 2013 at the Hyatt Regency Hotel in Indian Wells (formerly known as the Hyatt Grand Champions Resort). 


Alexander Smith

Pro: Files

Alexander Smith, Finance Director

Alex Smith will soon mark his 4th anniversary as Finance Director with the California JPIA. Smith, along with Lam Le, Financial Analyst, and Grazyna Buchowiecki, Accounting Specialist, make up the Authority’s finance division.

Smith specializes in coordinating projects that support the Authority’s risk managers with targeted loss prevention. He has developed loss data analysis tools and financial metrics for evaluating claims activity using a combination of quantitative and qualitative methods. He also has experience in coordinating and evaluating actuarial studies, and financial audits.

Smith’s public agency risk pool experience includes tenures at Southern California Schools Risk Management JPA and Southern California Schools Employee Benefits Association. 

"Risk management is a team sport," says Smith. "What I enjoy most about my job is interacting with staff at our member agencies and helping them with information requests, cost analysis, financial reporting, and anything else that comes up. I try to make a positive impact and contribute to the success of our members by supporting risk management and cost containment efforts, both here at the Authority and in City Hall."

He holds a Masters of Business Administration from the University of La Verne and is an active member of the California Municipal Treasurers Association (CMTA), and the California Association of Joint Powers Authorities (CAJPA). He also serves as Vice Chairman of the Administration Committee for the California Society of Municipal Finance Officers (CSMFO).

Alex grew up in a large family in Wichita, Kansas and served four years in the United States Marine Corps before settling in California. He enjoys biking, running, spending time outdoors, and playing volleyball with his daughter. 

The Court Report

Employer’s "honest belief" employee abused medical leave no defense

A California court of appeals, in Richey v AutoNation, Inc, ruled that an employer’s good faith "honest belief" that an employee on California Family Rights Act (CFRA) leave was misusing the leave is no defense to the employee’s claim for violation of his CFRA leave. Instead, the employer bears the burden of proving that the employee had, in fact, abused his leave rights by working while on leave in violation of company policy. 

Reprinted from the Metropolitan News-Enterprise 
Wednesday, November 14, 2012

Court of Appeal Rules:
Firing Not Justified by Belief Employee Was Misusing Leave
By a MetNews Staff Writer

A man who went on medical leave and who, during that period, worked at his own fish market, may have been wrongfully denied restoration of his job, this district’s Court of Appeal ruled yesterday.

Div. Seven, in an opinion by Presiding Justice Dennis Perluss, said that a good-faith belief on the part of the employer, AutoNation, Inc., that its Power Toyota of Cerritos sales manager, Avery Richey, was misusing his leave time by working elsewhere was not enough to justify firing him.

The decision reverses Los Angeles Superior Court Judge Malcolm Mackey’s denial of Richey’s motion to vacate an arbitrator’s award in favor of the employer.

Mackey said the "critical issue is whether the employer maintained a good-faith, reasonable belief" that Richey had abused his medical leave under the California Family Rights Act ("CFRA") and the federal analogue. Such a belief, he concluded, was established, and was "enough to justify the employee’s discharge."

He recited:
"Richey was operating his own fish market business at the time he claimed he was disabled. There is no showing that he was unable to do his job as sales manager if he could work at a fish market and there was no showing that he was severely disabled. It appears that he just had a back sprain from lifting furniture and was being treated by a chiropractor."

Appeals Court’s View

Perluss saw it differently. He declared:
"[A]n employer may not, in terminating or failing to reinstate an employee who has been granted CFRA leave, defend a lawsuit from that employee based on its honest belief the employee was abusing his or her leave."

The jurist wrote:
"The honest belief defense accepted by the arbitrator is incompatible with California statutes, regulations and case law and deprived Richey of his unwaivable statutory right to reinstatement under [Government Code] section 12945.2, subdivision (a). This clear legal error abridged Richey’s statutory rights under CFRA–rights based on, and intended to further, an important public policy."

That section provides that the employer must not only grant a medical leave, where the employee qualifies for it, but must provide "a guarantee of employment in the same or a comparable position upon the termination of the leave."

Employer’s Handbook

The employer’s handbook provided:
"You are not allowed to accept employment with another company while you are on approved [CFRA] leave"

Richey was advised, by letter, while on leave, that he was in violation of the policy. He did not respond to the letter, however, apparently convinced that it did not apply to him as owner of the business.

An AutoNation employee was dispatched to Richey’s business and found him working there.

Under yesterday’s decision, the legitimacy of the termination must be decided without reference to the employer’s good-faith belief, putting the burden on the employer to justify its refusal to restore Richey to his job.

Perluss said that "[a]lthough an employer is permitted to terminate an employee and deny reinstatement when the employee’s employment otherwise would have ceased, it bears the burden of establishing the employee would not otherwise have been employed at the time of reinstatement."

Remand to Mackey

The case was remanded to Mackey "with directions to deny the petition to confirm the arbitration award, grant the petition to vacate the award and to conduct further proceedings not inconsistent with this opinion, including, if appropriate, an order requiring binding arbitration before either a new or the original arbitrator."

Among issues unresolved by the arbitrator, Perluss said, were "whether Richey was given adequate notice of Power Toyota’s policies regarding CFRA leave...; whether Power Toyota’s policy barring secondary employment during an employee’s CFRA leave differed from the policy pertaining to secondary employment held by employees who were not on CFRA leave; whether, as a result, the policy itself violated CFRA; whether Richey’s activities at the restaurant exceeded the limitations imposed by his physician, thus rising to a level of activity that could be found to constitute abuse of his leave; and whether Power Toyota carried its burden of proof on these issues."

Joining in Perluss’s opinion were Justice Frank Jackson and Acting Justice John Segal, on assignment from the Los Angeles Superior Court. 

Long Beach attorney Scott O. Cummings represented Richey. Richard A. Derevan and Christopher B. Pinzon of Snell & Wilmer argued for AutoNation, Inc.

The case is Richey v. AutoNation, Inc., 12 S.OS. 5793.
Copyright 2012, Metropolitan News Company 

Risk Management Solutions

Fire Safety: Holiday Safety Tips for Public Buildings

by Bob May, Risk Management Program Manager

Decorating public buildings is a long–standing tradition around the holiday season. Unfortunately, these same decorations may increase chances of fire. In the holiday season, members are reminded to follow safety precautions when using live trees, artificial decorations, and indoor/outdoor lighting to decorate public buildings. 

Members are encouraged to consult with local fire officials about decorating plans including putting live trees in public buildings. The California Fire Code and California Code of Regulation Title 19 have specific requirements for the use of decorative material in public buildings.

Live trees
Use artificial trees, wreaths, and boughs when possible. Cut evergreen trees, wreaths, boughs create a serious fire hazard in public buildings.

If your agency includes a natural tree in its festivities, make sure your live tree is freshly cut. Needles on fresh trees should be green and hard to pull back from the branches, and the needles should not break if the tree has been freshly cut. The trunk should be sticky to the touch. Old trees can be identified by bouncing the tree trunk on the ground. If many needles fall off, the tree has been cut too long and, has probably dried out, and is a fire hazard. State and local regulations may require flame retardant be applied to a live tree before use in a public building.

Placement of trees
Trees should not be placed close to a heat source, including heat vents. The heat will dry out the tree, causing it to be more easily ignited by heat, flame or sparks. Do not put your live tree up too early or leave it up for longer than two weeks. Keep the tree stand filled with water at all times.

Christmas trees account for hundreds of fires annually. Typically, shorts in electrical lights or open flames from candles, lighters or matches start tree fires. Well–watered trees are not a problem—a dry and neglected tree can be.

Holiday lights
Only lights that are listed by an approved testing laboratory (UL) should be used. Before installing the lights it is important to inspect for excessive kinking or wear, frayed wires, gaps in insulation, bare spots, and cracked or broken sockets. Never use a "three-prong-to-two-prong" plug adapter to by-pass a grounded plug.

Keep all lights away from combustible materials such as fabrics or paper decorations; and keep all electrical cords out of traffic areas, and not under rugs, through doorways or taped to the floor.

Holiday decorations
Injuries due to falls are a major holiday hazard: if you need to hang something higher than you can safely reach, use an approved ladder and not a chair, desk, or box. Make sure you know how to safely use a ladder. Plan your decorating to minimize tripping hazards or snagging clothing. 

Holiday decorations should not be placed near sources of heat or flame, including heat vents. Only nonflammable or flame-retardant decorations should be used. 

Make sure seasonal decorations do not block, hide or obscure safety equipment such as fire alarm strobe lights or horns, safety signage or evacuation plans, fire extinguishers, safety showers or eyewash units, and exit ways.

The California JPIA encourages its members to follow safety precautions this holiday season. For more information or questions about appropriate holiday decorations, consult your agency’s designated risk manager