November 2013 - Issue 21

California JPIA "App" lauded for an Exceptional Educational Forum

Capstone Award

James Marta & Company Makes a Difference

2013 Employment Legislation Highlights

ADA Standards for Accessible Design

Globally Harmonized System - Update

Court of Appeal Applies Firefighters' Bill of Rights to Captain's Notes

Supreme Court Finds Qualified Immunity in Police Chase Case

News: Worthy

California JPIA "App" lauded for an Exceptional Educational Forum

There's an app for that risk

The California JPIA's 18th Annual Risk Management Educational Forum: There's an app for that risk held October 9 - 11 was deemed "the most successful educational forum" to date with 297 people representing 66 member agencies attending the event at the Hyatt Regency in Indian Wells.

The Forum kicked-off on Wednesday with the Opening Session: Public Agency Enterprise Risk Management. The opening session provided participants the opportunity to discover "what is Enterprise Risk Management and why it is important." Presented by a panel of subject experts, over 175 participants learned how enterprise risk management helps identify and quantify risk, reduce operational surprises, and minimize losses. 

This year's keynote speaker was Adam Schrager. Schrager has covered politics for more than 20 years, most recently at Wisconsin Public Television and at KUSA-TV in Denver. He is the author of "The Principled Politician," a biography of former Colorado Gov. Ralph Carr. Schrager brought to life the full story of Ralph Carr, a rare breed of politician who held his ground against popular opinion and was ahead of the curve in championing civil rights. Serving as governor during the anti-Japanese hysteria of World War II, Carr surprised and angered legions of voters — and faced threats of impeachment — when he became the only political leader in the country to champion the constitutional rights of Japanese Americans and welcome them to his state. 

The Forum's breakout sessions on Thursday addressed issues relevant to public agencies including: Diving into the Deep End of Disability; Public Records Act; ADA Accessibility; Inspiring Better Government; Liability Update; Cyber Liability; Workers' Compensation Update; Social Media; Cooperative Agreements; How Strategic Planning Facilitates Good Risk Management; iPad Tips for Increasing Productivity and Performance; Governing Body/Manager Relations; The Role of the Regional Risk Managers; and Putting Authority Resources to Work for You.

The Forum wrapped up on Friday with the Closing Session: Keeping You Safe/Violence in the Workplace. Presented by Steve Albrecht, the session provided participants with strategies to recognize potentially violent workplace situations, techniques to diffuse escalating situations, and security procedures to ensure the safety of employees during violent situations. 

The success of this year's Risk Management Educational Forum was significantly owed to the overwhelming support of 35 sponsors, who contributed $121,000 toward the various forum programs and activities. The Authority has always considered its business partners to be of strategic importance. This is true with respect to how they jointly work with members in managing risk, and also pertains to the role they play in underwriting a significant portion of the Authority's Risk Management Educational Forum that has allowed us allowed us to continue to deliver an exceptional educational experience for members. 

Mark your calendar now for the 19th Annual California JPIA Risk Management Educational Forum to be held October 29 - 31, 2014 at the Fess Parker's Hotel in Santa Barbara. 

Capstone Award

News: Worthy

Capstone Award

For many years, the Authority has recognized member agencies for their efforts in managing risk by awarding them appropriately at each year's annual meeting. But these awards would not be possible but for the work of individuals behind the scenes. These are tireless workers who take risk management responsibilities seriously in order to make a difference in their organizations. 

Now for the first time and at the recent Educational Forum, the Authority recognized one of those individuals who best exemplifies the practice of risk management, and bestowed that person with the first ever Capstone Award. 

Debra Garcia, Human Resources Officer for the City of Pismo Beach was selected from among five finalists to be the recipient of this award, which was the culmination of a five-month process. Nominations were received from across the pool, and were carefully vetted against the following key criteria:

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

Debra holds a Bachelor of Science degree in business administration/quantitative analysis, and has also earned an MBA. Prior to joining Pismo Beach, she worked 20 years in the private sector as a Director of Operations and Product Development for a payroll, HR, tax and benefits company and later as Vice President of Operations for an HR and payroll software development company.

Upon learning of her nomination and award, Debra stated that she is "extremely honored to be nominated for the Capstone Award" and that the award "represents the concerted efforts of the city council, management and staff of the City of Pismo Beach, to make the Risk Management Program one of our highest priorities and commitment of resources."

The other four finalists included Mary Ellen Rio from the City of Solvang, Diane Perkin from the City of Lakewood, Rayna Ospina from the City of San Gabriel, and Laurie Murray from the City of La Palma.

James Marta

News: Worthy

James Marta & Company Makes a Difference

by Lam Le, Financial Analyst

With over 25 years of industry experience, James Marta has worked with more than 80 risk pools in eight states. His CPA firm, James Marta & Company, specializes in financial consulting, auditing, accounting and tax services. As the California JPIA's auditor since 2011, James Marta is a valuable resource for our risk management pool. His philosophy is to be a resource for the California JPIA, its members, and the industry. 

Marta believes transparency and accountability rank high on the list of attributes for efficient management and effective governance. With tightening budgets, public agencies are hard pressed to use their limited financial resources to meet the needs of their constituents. A proactive approach to adapting to the changing financial landscape is prudent. Public agencies must be able to adapt to change by rethinking how service is provided and how it can be improved. Innovative processes must be implemented mitigate the impact of leaner budgets. He understands that the nature of insurance risk pooling is inherently risky. To minimize risk, he advises that public agencies must strengthen controls and increase knowledge and understanding of the risk landscape. If weaknesses in the processes or internal controls exist, they must be remedied to lower the exposure to risk. Marta believes that focus should be shifted to enterprise-wide risk management, in addition to current policies toward liability and workers' compensation risk management.

By thinking about public management in the long term, agencies will be better informed to make difficult decisions. The California JPIA and James Marta & Company are united in our goal be to a valuable resource to our members and to exceed expectations. 

Legislative Update

2013 Employment Legislation Highlights

by Kelly A. Trainer and Traci I. Park, Partners, Burke, Williams & Sorenson LLP

The 2013 legislative session produced a number of new employment laws in California. A few of these new legal obligations are outlined below. 

ASSEMBLY BILL 218 – Restrictions on Criminal History Inquiries
Assembly Bill 218 adds section 432.9 to the Labor Code. Effective July 1, 2014, this section will prohibit public agencies, including charter cities, charter counties, and special districts, from inquiring about an applicant's conviction history until after the agency has determined that the applicant meets the "minimum employment qualifications, as stated in any notice issued for the position." The section does not apply to a public agency who is conducting a conviction history background check that is required by law "to any position within a criminal justice agency." 
Public employers will need to revise their employment applications and determine at what point in the application process it will inquire about criminal convictions. This inquiry should come before the agency issues a conditional offer of employment pending the completion of any medical examinations to be compliant with the ADA/FEHA disability obligations. 

SENATE BILL 400 – Victims of Domestic Violence, Sexual Assault, and Stalking
Currently, Labor Code sections 230 and 230.1 provide protections to domestic violence or sexual assault victims by prohibiting an employer from taking an adverse employment action against a victim who takes time off from work to attend to specified issues arising as a result of the violence or assault. Senate Bill 400, which becomes effective January 1, 2014, amends these Labor Code sections to extend current protections to the victims of stalking. The bill also prohibits an employer from discharging or in any manner discriminating or retaliating against an employee because of the employee's status as a victim of domestic violence, sexual assault, or stalking if the victim provides notice to the employer of the status or the employer has actual knowledge of the status. The bill would also require the employer to provide reasonable accommodations that may include the implementation of safety measures or procedures for a victim of domestic violence, sexual assault, or stalking, as specified. 

SENATE BILL 288 – Time Off for Crime Victims
Existing law prohibits an employer from discharging or in any manner discriminating against an employee for taking time off to serve on a jury, an employee who is a victim of a crime for taking time off to appear in court as a witness in any judicial proceeding, or an employee who is a victim of domestic violence or a victim of sexual assault for taking time off from work to obtain, or attempt to obtain, prescribed relief. Senate Bill 288 adds new protections for crime victims to attend court proceedings involving the victim's rights, including any delinquency proceeding, a post-arrest release decision, plea, sentencing, post-conviction release decision, or any proceeding in which a right of the victim is at issue. Employers may not discriminate or retaliate against an employee who is a victim of specified serious crimes for taking time off from work to appear in any proceeding. Crimes include such as offenses as solicitation for murder and vehicular manslaughter while intoxicated. Senate Bill 288 defines a "victim" as any person "who suffers direct or threatened physical, psychological, or financial harm as a result of the commission or attempted commission of a crime or a delinquent act," and a victim also includes the person's "spouse, parent, child, sibling or guardian." Employees must comply with specific requirements for requesting the leave. Violations of the law will be enforced by the Labor Commissioner. Refusal to reinstate someone wrongfully fired under this law will be a misdemeanor. 

SENATE BILL 770 – Paid Family Leave Benefits
Under current law, employees may seek wage replacement benefits under the family temporary disability program (also referred to as paid family leave or PFL) for taking time off to care for certain seriously ill family members. Senate Bill 770 expands paid family leave benefits for employees to include benefits for time taken off to care for a seriously ill grandparent, grandchild, sibling, or parent-in-law. PFL does not create the right to a leave of absence, but provides California workers with some financial compensation/wage replacement during a qualifying absence. This legislation will not take effect until July 1, 2014. 

ASSEMBLY BILL 556 – Military and Veteran Status Added to the FEHA
Assembly Bill 556 amends the FEHA to include "military and veteran's status" as a protected characteristic for purposes of workplace harassment and discrimination. Military and veteran's status is defined as "a member or veteran of the United States Armed Forces, United States Armed Forces Reserve, the United States National Guard, and the California National Guard." The amendment specifically provides that it is not intended to prevent an employer to identify members of the military or veterans for the purpose of awarding a veteran's preference. Cities, counties, and cities and counties, both general and chartered, are reminded that Government Code section 50088 requires that the board of supervisors or city council either adopt a veteran's preference in the employment application process or adopt a resolution identifying the reasons that it does not implement a veteran's preference. 

Employers will need to update their harassment and discrimination policies to reflect this new protected characteristic and should also review all application forms and procedures to ensure that the only requests for information about veteran or military status are related to a veteran's preference. 

SENATE BILL 292 – Sexual Harassment 
Senate Bill 292 amends 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. 

SENATE BILL 496 – Whistleblower Protections 
This new legislation amends several existing statutes, including Labor Code section 1102.5 which prohibits an employer from retaliating against an employee who reports any suspected violation of state or federal law or regulation to any government or law enforcement agency. Senate Bill 496 expands Labor Code section 1102.5 to prohibit an employer from retaliating against an employee because the employer believes that the employee disclosed or may disclose information to a government or law enforcement agency, or to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation. The bill would also prohibit an employer from retaliating against an employee for disclosing, or refusing to participate in an activity that would result in, a violation of or noncompliance with a local rule or regulation. In addition, Senate Bill 496 exempts this cause of action from the presentation requirements set forth in the Government Claims Act. 

ASSEMBLY BILL 263 – Protections for Exercising Rights Under the Labor Code
Assembly Bill 263 amends various Labor Code provisions regarding retaliation. Existing law prohibits an employer from discharging or discriminating against an employee who seeks to enforce their rights under the Labor Code. Effective January 1, 2014, Labor Code sections 98.6 and 98.7, among others, will be amended to prohibit any adverse employment action or retaliation because the employee has engaged in protected conduct. The new legislation also expands protected conduct to include a written or oral complaint that the employee is owed unpaid wages. The bill also provides that an employee who was retaliated against or otherwise was subjected to an adverse action is entitled to reinstatement and reimbursement for lost wages. Violations of section 98.6 are already deemed misdemeanors; the amendment subjects a person who violates these provisions to a civil penalty of up to $10,000 per violation. The bill also provides that it is not necessary to exhaust administrative remedies or procedures in the enforcement of specified provisions. 

ASSEMBLY BILL 263, SENATE BILL 666, AND ASSEMBLY BILL 524 – Protections for Immigration Status
Assembly Bill 263 prohibits an employer from engaging in "unfair immigration-related practices" when an employee asserts protected rights under the Labor Code. Under the new legislation, employers cannot use immigration law to retaliate against employees who exercise their employee rights. For instance, an employer may not threaten to contact, or contact, immigration authorities because an employee complained that he/she was paid less than the minimum wage. Employers who engage in unfair immigration-related practices will face various penalties, including an employee's right to bring a civil action and potential suspension of certain business licenses. 
On a related note, Senate Bill 666 permits the state to suspend or revoke an employer's business license when that employer reports, or threatens to report, the immigration status of any employee because the employee makes a complaint about employment issues. It also allows for disbarment of attorneys for similar conduct against witnesses or parties in a lawsuit. 

The law covers reports, or threats to report, employees, former employees, prospective employees or family members, as defined, to immigration authorities. Employers are not subject to the suspension or revocation of a business license for requiring a worker to verify eligibility for employment under the Form I-9. Similarly, Assembly Bill 524 clarifies that a person may be guilty of criminal extortion if the person threatens to report the immigration status or suspected immigration status of an individual, or his/her relative or a member of his/her family. 

SENATE BILL 462 – Attorney's Fees Limited for Prevailing Employer in Wage Claims
Currently, the law requires a court in any action brought for the nonpayment of wages, fringe benefits, or health and welfare or pension fund contributions, to award reasonable attorney's fees and costs to the prevailing party if a party requests attorney's fees and costs upon initiation of the action. Senate Bill 462 amends Labor Code section 218.5 to provide that, where the prevailing party is the employer, attorney's fees and costs shall only be awarded if the court finds the employee brought the action in bad faith. 

Assembly Bill 537 amends the MMBA in the following two ways: (1) it requires that a tentative agreement be accepted or rejected by the governing body within 30 days of presentation at a public meeting; and (2) makes contractual arbitration subject to the California Arbitration Act. 

With respect to the first amendment, the use of "tentative agreement" ("TA") in the MMBA is new. Typically, parties will "TA" on certain provisions in the contract during the course of negotiation, evidencing their agreement on that topic. Once the parties have reached agreement on all the provisions of the contract, there is a TA on the memorandum of understanding ("MOU"). The TA is then typically presented to the union membership for ratification by the union membership, and then a final MOU is drafted and presented to the governing body for final approval. While more often than not, the final TA and the MOU are the same, the TA is not usually presented to the governing body – only the MOU in final draft form is presented to the governing body. 

Assembly Bill 537 also confuses this traditional process by adding a requirement that the parties shall jointly prepare the MOU if the governing body accepts the TA. However, there is no requirement that the governing body must also adopt the MOU. A dispute could potentially arise after a TA is approved by the governing board, but before the MOU is adopted, and the MMBA is silent on how such a situation would be resolved. As a practical matter, agencies may wish to consider whether the TA and the MOU can be presented to the governing board at the same time, so that the actual contract is approved by the governing board in a timely manner. There is nothing in the language of the statute that expressly prohibits this. 

The change regarding contractual arbitration addresses the issue of what happens when a grievant misses a contractual deadline in the processing of a grievance. Commonly, the employer will refuse to arbitrate the grievance based on that failure, and then the union must bring a motion to compel arbitration in superior court. Assembly Bill 537 changes this by requiring that the defense be submitted to the arbitrator. 

Interestingly, an earlier version of Assembly Bill 537 had a provision that would have prohibited ground rules that limit the ability of union negotiators to communicate directly with the governing body, but that provision was deleted from the final version that was submitted to the Governor for signature. 

ASSEMBLY BILL 1181 – Union Release Time 
Assembly Bill 1181 amends the MMBA to require employers to give paid time off (commonly referred to as "release time") to a reasonable number of employees for the following activities: 
• Formally meeting and conferring with the public agency on matters within the scope of representation. 
• Testifying or appearing as the employee organization designated representative in conferences, hearings, or other proceedings before PERB or a PERB agent in matters related to charges filed by the employee organization or public agency against the other. 
• Testifying or appearing as the employee organization designated representative in matters before a personnel or merit commission. 

The union must provide reasonable notice to the employer of the need for release time. 

The MMBA has always required a reasonable number of employees with release time for negotiations, so the only change is to the attendance at PERB proceedings and personnel/merit commission proceedings. Many agencies have negotiated release time in their MOUs, and it is important to consider those provisions during negotiations to determine if any changes are necessary and if it is appropriate for the parties to agree to further details on release time, such as what is a "reasonable" number of employees and what is "reasonable" notice. 

SENATE BILL 313 – Brady List 
Senate Bill 313 prohibits a public agency from taking any punitive action or denying a promotion on grounds other than merit, against a public safety officer, because the officer's name was placed on the "Brady List." The Brady List is a term commonly used to describe officers whose personnel files contain evidence of dishonesty or bias, which is maintained by the prosecutor's office in accordance with Brady v. Maryland (1963) 373 U.S. 83. An agency may still take punitive action against the officer because of the underlying acts or omissions that caused the officer's name to be placed on the Brady List.

Senate Bill 313 also limits the introduction of evidence that an officer's name is on the Brady List during administrative appeals of a punitive action against an officer. According to Senate Bill 313, evidence may only be introduced if, "the underlying act or omission for which that officer's name was placed on a Brady List is proven and the officer is found to be subject to some form of punitive action." Further, evidence that a public safety officer's name was placed on a Brady List may only be used for the sole purpose of determining the type or level of punitive action to be imposed. 

Assembly Bill 729 would have established an evidentiary privilege for communications between a union representative and the represented employee. Governor Brown made the following statement regarding his decision to veto: "I don't believe it is appropriate to put communications with a union agent on equal footing with communications with one's spouse, priest, physician or attorney. Moreover, this bill could compromise the ability of employers to conduct investigations into workplace safety, harassment and other allegations." 

Senate Bill 655 would have modified and limited the California Supreme Court's controversial holding in Harris v. City of Santa Monica (2013) 56 Cal. 4th 203. In Harris, the Supreme Court held that where an employee demonstrates the employer's adverse action was substantially motivated by discrimination but the employer demonstrates the employee would have been discharged even in the absence of any discriminatory intent, then a court cannot award back pay, damages, or reinstatement. However, where the unlawful discrimination was a "substantial motivating factor" in the employment decision, the court held that the employee may be entitled to other remedies in the form of declaratory relief, injunctive relief, and attorney's fees and costs. 

The backlash against the Harris opinion by the plaintiff's bar and employee advocates statewide was immediate. Just shortly after the Harris opinion was issued, California Senator Roderick Wright proposed Senate Bill 655, which would have amended the Fair Employment and Housing Act to require a plaintiff to prove that the employer's discriminatory motive was a "substantial motivating factor," which would have been defined under the legislation as one that is "more than a remote or trivial factor" contributing to the employment decision, but "need not be the only or main cause of the employment action." In cases like Harris, where an employer is then able to show it would have made the same employment decision without regard to the discriminatory motive, Senate Bill 655 would have foreclosed the possibility of reinstatement or back pay. However, Senate Bill 655 would have significantly departed from Harris in that, in addition to authorizing attorney's fees and injunctive relief in these cases, it would also allow the employee to recover "noneconomic damages caused by the adverse action" and would impose a mandatory statutory penalty of $15,000 against the employer. 

In rejecting this proposed legislation, Governor Brown stated, "I think Supreme Court Justice Goodwin Liu got it right in his well-reasoned opinion in that case and I see no reason for further legislative intervention."

Risk Solutions

ADA Standards for Accessible Design

by Tim Karcz, CSP, ARM-P, CPSI, Director with Poms and Associates

Part three of a three-part series.

On September 10, 2010, The US Department of Justice issued new regulations in which they adopted revisions to the Americans with Disabilities Act (ADA), including the new 2010 ADA Standards for Accessible Design. Often overlooked in these regulations is the fact that ADA standards are also built into the national playground standards. As public entities put forth efforts to evaluate their services, programs, and facilities, care must be taken to not overlook the accessibility of public playgrounds. Operators of public playgrounds must comply with these requirements starting with the installation of the playground and throughout the life of the equipment. These guidelines also apply to alterations made to existing play areas that affect, or could affect, the usability of the play area. Examples include removing a climbing play component and replacing it with a spring rocker, or changing the ground surfacing. Existing playgrounds found to not be in compliance with these regulations should be addressed, budgeted, and otherwise planned for in a public agency's ADA Transition Plan.

Compliance with the regulation requires an understanding of the enforceable minimum design standards for public playgrounds as well as the maintenance requirements for the accessible route to and from accessible play components. An accessible route is defined as "a continuous unobstructed path connecting all accessible elements and spaces of a building or facility. Inside the boundary of the play area, accessible routes may include platforms, ramps, elevators, and lifts. Outside the boundary of the play area, accessible routes may also include parking access aisles, curb ramps, crosswalks at vehicular ways, walks, ramps, and lifts." A Ground-level Accessible Route must be provided which includes a 60-inch minimum width. This route can be reduced to 36 inches, but only for a total length of 60 inches.

Playground surfacing plays a major role in determining its accessibility. The Consumer Product Safety Commission's Handbook for Public Playground Safety states that "Special consideration should be given to providing accessible surfaces in a play area that meets the ASTM Standard Specification for Determination of Accessibility of Surface Systems Under and Around Playground Equipment, ASTM F1951. Equipment selection and location along with the type of protective surfacing are key components to ensuring the opportunity for children with disabilities to play on the playground." Section 1008 of ADA Standards requires ground surfaces on playgrounds to comply with this standard. In addition, the standard requires ground surfaces located within use zones to also comply with ASTM F1292, Standard Specification for Impact Attenuation of Surface Systems Under and Around Playground Equipment. Therefore, ground surfaces must be of a type and consistency that provides accessibility, while also providing appropriate head impact attenuation properties when installed under and around playground equipment.

To stay compliant with the standard, surfacing, including loose fill surfacing, shall be inspected and maintained regularly and frequently to ensure continued compliance with the standard.

The following website resources are provided to assist you in researching and developing your comprehensive playground safety and risk management program:

Public Playground Safety Handbook (2010), U.S. Consumer Product Safety Commission: 

Playground Safety Publications, U.S. Consumer Product Safety Commission: 

Americans with Disabilities Act, Accessibility Guidelines for Buildings and Facilities (ADAAG):

Americans with Disabilities Act, Accessibility Guidelines for Play Areas:

Additional resources are available via the Authority's Resource Center.

Risk Solutions

Globally Harmonized System - Update

By Maria Galvan, Risk Manager

In the April 2013 edition of The Authority newsletter, members were notified of pending changes to the Cal/OSHA Hazard Communication Standard. New changes to the Hazard Communication Standard are bringing the United States into alignment with the Globally Harmonized System of Classification and Labeling of Chemicals (GHS), further improving safety and health protections for workers. Building on the success of OSHA's current Hazard Communication Standard, the GHS is expected to prevent injuries and illnesses, save lives and improve trade conditions for chemical manufacturers. The Hazard Communication Standard in 1983 gave the workers the 'right to know,' but the new Globally Harmonized System gives workers the 'right to understand.'

Major changes to the Hazard Communication Standard:

• Hazard classification: Chemical manufacturers and importers are required to determine the hazards of the chemicals they produce or import. Hazard classification under the new, updated standard provides specific criteria to address health and physical hazards as well as classification of chemical mixtures. 

• Labels: Chemical manufacturers and importers must provide a label that includes a signal word, pictogram, hazard statement, and precautionary statement for each hazard class and category. 

• Safety Data Sheets (SDS): Material Safety Data Sheets (MSDSs) are now known as Safety Data Sheets (SDSs). SDSs must meet a specified 16-section format. The new format requires 16 specific sections, ensuring consistency in presentation of important protection information. 

 Information and training: To facilitate understanding of the new system, the new standard requires that workers be trained by December 1, 2013 on the new label elements and safety data sheet format, in addition to the current training requirements. 

These changes will require employers to revisit their Hazard Communication Program to ensure compliance with the new standards. Employers are required to train employees on the new label elements and SDS format by December 1, 2013. NOTE: there is no grace period for the December 1, 2013 training deadline. 

The Authority included the GHS and SDS components to the instructor-led Hazard Communication training curriculum as of May 2013 (Hazard Communication training prior to that date did not include the GHS and SDS standards). Instructor-led Hazard Communication training will be limited to the instructor's availability through early 2014. To assist agencies in meeting the Hazard Communication training requirement, the Authority's web-based training (WBT) via the Resource Center addresses the new GHS and SDS standards. The Hazard Communication WBT is approximately two hours in length and can be viewed in a group setting. Sign-in sheet records for group participation should be returned to the Authority's Training Division at or by fax at (562) 402-8692.

For more information about the new Hazard Communication Standard, contact your agency's regional risk manager.

Legislative Update

The Court Report

Court of Appeal Applies Firefighters' Bill of Rights to Captain's Notes

Reprinted from the Metropolitan Enterprise News, November 5, 2013

A law requiring notice to firefighters before any adverse comments are entered into their personnel files applies to a supervisory captain's handwritten and computerized notes that were kept separate from official personnel files, the Fourth District Court of Appeal ruled yesterday. 

Div. Three made the ruling in what the author described as the first published appellate decision interpreting the Firefighters' Procedural Bill of Rights, codified under Government Code § 3255.

The law states in part:
"A firefighter shall not have any comment adverse to his or her interest entered in his or her personnel file, or any other file used for any personnel purposes by his or her employer, without the firefighter having first read and signed the instrument containing the adverse comment indicating he or she is aware of the comment. . . ."

The suit was brought by Orange County firefighter Steve Poole against his employer, the Orange County Fire Authority. He claimed that he was unfairly evaluated by Fire Captain Brett Culp, who had been keeping daily notes on the performance of his subordinated. Culp said he maintained such files for use in preparing his annual evaluations that were required under a performance improvement plan. 

Poole said he was given a "substandard" rating based on Culp's notes, which were relayed to a battalion chief. After his evaluation, Poole contacted a representative with the Orange County Professional Firefighters Association who in turn demanded to see Poole's personnel file at the station house. 

An inspection of Poole's file revealed a wide variety of notes where Culp felt that Poole needed an improvement in his job performance. 

After learning of the notes, Poole made a written demand to the Orange County Fire Authority that all adverse comments about him in the station file be removed in accordance with his rights under § 3255. The fire authority refused, arguing that Culp's notes were not part of Poole's personnel file and that "while the notes were intended for personnel purposes, they were never 'entered' into any file" and thus not subject to the provisions of § 3255. 

Poole and the Orange County Professional Firefighters Association sued for damages, injunctive relief and a writ of mandate forcing defendant to comply with § 3255.

A trial judge denied relief, concluding that Culp's notes were not part of Poole's personnel file and more akin to "Post-it notes" to help remind Culp of things to consider in preparing employee evaluations. 

The Court of Appeal reversed in an opinion by Justice Eileen C. Moore, who wrote:

"Because the daily logs on Poole's activities at work and kept in a file with his name on it were used for personnel purposes and were disclosed to superiors—again for personnel purposes—Poole was entitled to respond to adverse comments contained therein."

Moore likened the Firefighters Procedural Bill of Rights to similar protections afforded police and educators in California which apply to various forms of employment memoranda that are found outside of an employee's official personnel file. 

The justice said it was "evident the daily logs affected Poole's job status" and that daily logs kept in the fire station apart from his official personnel file were "used for personnel decisions," even though the plaintiffs' counsel admitted that if Culp had written the evaluation strictly from his memory, no lawsuit would have been warranted. 

The case is Poole v. Orange County Fire Authority, G047691. 

Legislative Update

The Court Report

Supreme Court Finds Qualified Immunity in Police Chase Case

Reprinted from the Metropolitan News Enterprise, November 5, 2013

Panel Overrules Ninth Circuit, Which Would Have Allowed Homeowner to Sue La Mesa Officer

A police officer in San Diego County did not violate clearly established law by entering an enclosed residential yard without a warrant while pursuing a suspect wanted on a misdemeanor charge, the U.S. Supreme Court ruled yesterday. 

In a unanimous, per curiam opinion, the court said the Ninth U.S. Circuit Court of Appeals was wrong to deny the La Mesa officer, Mike Stanton, qualified immunity in a suit by local resident Drendolyn Sims.

Sims alleged that Stanton violated her Fourth Amendment rights by coming onto her property after he and his partner responded to a call regarding a disturbance involving a person with a baseball bat in a neighborhood reportedly known for gang violence. 

While approaching the area where the disturbance had been reported, Stanton saw three men walking in the street. Upon seeing the officers, two of the men turned directions into a nearby apartment complex while a third, Nicholas Patrick, quickly made towards Sims' residence. 

Stanton later testified that he considered the men's behavior suspicious, exited his police vehicle, identified himself as an officer and ordered Patrick to stop. Stanton said Patrick looked directly at him, but ignored his order to stop and quickly went through the front gate of a tall wooden fence that enclosed Sims' yard.

Plaintiff Injured
While in pursuit of Patrick, Stanton kicked the gate door open, striking Sims, who was standing behind the gate at the time. Sims suffered a cut forehead and injured shoulder when the gate struck her, and claimed in her complaint that Stanton's actions constituted an unreasonable search. 

The Ninth Circuit held that Stanton's warrantless entry was unconstitutional and that he was not entitled to qualified immunity. The panel said it was established law that a warrantless entry into a home is not justified in pursuing a suspected misdemeanant "except in the rarest of circumstances."

The Supreme Court, without resolving the question of whether Stanton committed a constitutional violation when he entered Sims' property, said the law was sufficiently unsettled for the officer to claim qualified immunity. 

Court's Explanation
The justices explained:
"There is no suggestion in this case that Officer Stanton knowingly violated the Constitution; the question is whether, in light of precedent existing at the time, he was 'plainly incompetent' in entering Sims' yard to pursue the fleeing Patrick...The Ninth Circuit concluded that he was. It did so despite the fact that federal and state courts nationwide are sharply divided on the question whether an officer with probable cause to arrest a suspect for a misdemeanor may enter a home without a warrant while in hot pursuit of that suspect."

While the high court noted that precedent allows warrantless entries by officers in hot pursuit of a fleeing felon, it said there was no "categorical rule" for cases involving misdemeanors or minor offenses. It cited two opinions of the California Court of Appeal as affirmatively authorizing Stanton's actions. 

The court went on to say:
"It is especially troubling that the Ninth Circuit would conclude that Stanton was plainly incompetent—and subject to personal liability for damages—based on actions that were lawful according to courts in the jurisdiction where he acted."

The case is Stanton v. Sims, 12–1217.