February 2015 - Issue 36

Workers’ Compensation Root Cause Program

Authority's Annual Retrospective Computations Completed

Parks and Recreation Academy

El Centro Fire Department Finds New Way to Assist Victims

Work Release Programs

Special Events Liability Insurance Program

Mayor's Refusal to Sign Contract Not 'Absence,' C.A. Rules

News: Worthy

Workers’ Compensation Root Cause Program

by Jeff Rush, Workers’ Compensation Program Manager

In August 2014, the Authority expanded the collection of the root cause information to the compensation program. The goal of this program is to conclusively identify the cause of each injury that occurs throughout the workers’ compensation program.  

We believe that this information is of critical value, and will help members understand fundamental facts surrounding the cause of claims, including insight into factors surrounding the convergence of a condition, event, and a control that is otherwise designed to prevent the claim from happening. An example of this convergence is a wet floor (condition), a person walking on the floor (event), and a warning sign (control). If the sign is missing and the person slips, the control failed.

These factors are present in every preventable claim. Once known, they will help the Authority provide you data and tools that might prevent it from happening again. With workers’ compensation costs trending upward in our pool and throughout the state, we need your assistance in obtaining this information. 

For this purpose, we recently revised the Illness or Injury Event Report, which can be utilized by an employee’s supervisor to help identify the root cause of an injury.  The form now includes all possible root causes for an injury, including recent additions to reflect continuous trauma injuries and also some exposures specific to the work performed in public safety.   

If you have any questions about the workers’ compensation root cause program, please contact Jeff Rush, Workers’ Compensation Program Manager at jrush@cjpia.org or (562) 467-8707.

News: Worthy

Authority's Annual Retrospective Computations Completed

The Authority's annual retrospective computations have been approved by the Authority’s Executive Committee at its December 17, 2014 meeting. Retrospective adjustments can result in either additional deposits or refunds to your agency. Retrospective workbooks have been posted on the Authority’s website: Retrospective Deposits and Refunds.

Note that these workbooks are password protected and require a username and password. If you are unsure of your username or password, or need to register for the first time, please use the buttons at the bottom of the login box, and credentials will be e-mailed to you within one business day. Please note that these website credentials are different from the Resource Center/training credentials.

The liability program and the workers' compensation program have separate workbooks. There is also a summary document posted called Retrospective Balances and Administrative Transfer. This summary document provides a statement of retrospective balances before and after the new retrospective adjustment (for both programs). It also shows administrative balance transfers, which were done in situations where members have a deposit balance in one program and a refund balance in the other.

For members with workers’ compensation retrospective balances, they will be able to select optional payment plans sometime within the next few months. Additional information regarding payment options is posted here: Payment Options.

If you have questions regarding how the retrospective adjustments were calculated, or if you need further information, please contact Lam Le, Financial Analyst, at lle@cjpia.org.

News: Worthy

Parks and Recreation Academy

by Joe Eynon, Senior Training Specialist

The California JPIA Parks and Recreation Academy was held February 3 – 5, 2015 at the La Bellasera Hotel in Paso Robles. Scott Grossberg, founding partner with the law firm of Cihigoyenetche, Grossberg & Clouse; Marjorie Segale, founder and President of Segale Consulting Services,LLC;and Butch DeFillippo, managing partner for PlaySafe, LLC, with his team, facilitated the three–day academy which consisted of eleven sessions designed for parks and recreation directors, managers, and supervisors. 

"People come from a variety of communities and programs, so their perspectives and challenges vary greatly. The Academy audience also reflects a range of experience levels, from seasoned professionals to people who are just starting to investigate the park and recreation profession," reflected DeFillippo. With that in mind, the core curriculum for the Academy provided participants with strategies for developing new programs and evaluating existing ones, staffing, overseeing special events, and providing safe environments in parks and aquatic centers. Sessions included:
  • Parks and Recreation Risk Management
  • Safe Facilities: Conducting a Facilities Risk Review
  • Safe Parks & Recreation Spaces
  • Playground Maintenance and Safety
  • Contracts & Joint Use Agreements
  • Public Input Process: How to Get it Right
  • Participant Waivers, Releases, Facility Use Agreements
  • Emergency Plans
  • Aquatic Facilities
  • Background Checks, Volunteers, and Part-Time Employees
  • Recreation for Tomorrow and Creating an Action Plan

27 participants representing twenty agencies attended the specialized academy. Leslie McDonald, a first time attendee with the City of Mission Viejo commented, "The best aspects of the academy were variety of topics, depth of topic review, and the background materials and checklists." Ember Haller, with the City of Imperial, said, "Each session was applicable and useful for my position. I would love to be able to provide this California JPIA training to my seasonal staff; recreation leaders, lifeguards, and water safety instructors.”

The next Parks and Recreation Academy will be offered in early 2016. For more information about the Academies offered by the California JPIA, please contact Michelle Aguayo, Training Coordinator, at maguayo@cjpia.org or (562) 467-8777. 

Re: Members

El Centro Fire Department Finds New Way to Assist Victims

(Reprinted from the Imperial Valley Press, February 5, 2015)

The El Centro Fire Department has found a different way to immediately help those who have lost significant property in a fire or disaster. El Centro

In a new program offered through the California Fire Foundation called Supplying Aid to Victims of Emergency, or SAVE, El Centro firefighters will be able “to help those victims take the first step towards healing” by providing them with immediate financial assistance, said El Centro Fire Engineer Jason Bandaruk. 

As part of SAVE, designated incident commanders will carry $100 SAVE gift cards on calls that threaten significant property damage, and if the property loss is judged to be greater than 25 percent of total value, the commander is authorized to immediately issue a SAVE card to the person or family affected by the disaster. 

Often during such disasters, victims have lost credit cards, IDs and more, Bandaruk explained. The SAVE cards will allow them to immediately buy medicine, food, clothes or possibly a place to stay for the night. 

“When someone loses their home in a fire or disaster, they’re usually in a state of shock. They don’t know where to turn,” said El Centro Fire Chief Kenneth Herbert. “As first responders, we’re in a unique position to offer a little extra arm around the shoulder to help victims get through a very tough time.”

The program is funded by the California Fire Foundation. The foundation is a nonprofit foundation that supports fallen firefighter families and communities, and it relies on private donations and corporate sponsorship for the SAVE card program. 

“Firefighters do what we do because of a desire to serve,” said foundation chairman Lou Paulson. “By offering SAVE cards to those who have lost so much, the El Centro Fire Department is able to continue providing comfort and support after the fire is out.”

The El Centro Fire Department, the El Centro Firefighters Association and California Firefighter Foundation signed a memorandum of understanding to participate in the program. 

El Centro fire has been issued 10 $100 gift cards and may be able to request more as needed. 

“The wonderful thing about this program is it doesn’t cost the city or taxpayers,” Herbert said. 

The American Red Cross also provides similar assistance in the form of gift cards, shelter, food and more, he noted “so this is something we can do on top of that.” 

Herbert said he’s not aware of any other Valley fire departments using the SAVE program yet, but it is open to all California fire departments. 

“This is a great program to take part in, not only for the public, but also for our department,” Bandaruk said. “It shows the public that as firefighters, we are devoted to the community we serve and really do try to help everyone.”

Risk Solutions

Work Release Programs

by Alex Mellor, Risk Manager

California Penal Code sections 4024.2 and 4024.3 establish the authority for counties to institute a program under which offenders committed to a detention facility may participate in a Work Release Program in lieu of incarceration.  Many counties make the offenders who choose to participate in this program available to local public agencies to perform tasks including graffiti abatement, trash abatement, and other forms of manual labor. This arrangement is beneficial to all parties, and allows the local public agency to take advantage of manual labor at little or no cost.

The requirements of the Work Release Program agreement between the county and local public agency can vary greatly from county to county.  In some arrangements, the county charges the local agency a fee to participate in the program, whereas in others there is no cost. The county may also provide an individual to supervise the offenders while they perform the work assigned by the local public agency, whereas in others they do not.  In addition, certain counties may require that the local public agency provide workers’ compensation coverage for the offenders.

Regardless of the contractual arrangement, it is important that member agencies analyze the written agreement (often provided by the county with little room to negotiate), paying close attention to the indemnification language and insurance requirements, so an effective analysis of the costs, benefits and risks of the program can be performed.  For example, if the member agrees to provide workers’ compensation coverage for the offenders, any claims will be the responsibility of the member and will directly affect the member’s annual contribution to the California JPIA. As with a workers’ compensation claim filed by a member employee, the greater the severity of the claim, the greater the effect on the member’s annual contribution.

In addition, and especially where the member takes responsibility for directly supervising the offenders, it is important to consider steps that can be taken to reduce the potential for loss. For example, offenders should be trained on the tasks they are being asked to perform in order to ensure they understand how to safely complete the task and how to safely operate any required tools or equipment. Also, offenders should be required to wear high visibility vests while performing the work so they can be easily identified by vehicle drivers. This is critical if they are working in close proximity to a roadway.

Performance of an effective risk analysis and use of appropriate loss control techniques will go a long way towards reducing exposure to losses associated with Work Release Programs.

For more information, or to ask a question, please contact your assigned Regional Risk Manager.

Coverage Matters

Special Events Liability Insurance Program

by Jim Thyden, Insurance Programs Manager

What do you do when a resident wants to use an agency property for an event like a wedding, job fair, or soccer game? What if you would like to contract with an instructor to teach a chess class or a golf or yoga class? Do you require the residents or instructors to provide proof of insurance to cover an accident during the event? What if they don’t have insurance? Do you want to sponsor an event that is open to the public?

Best risk management practice usually requires insurance from the facility user or instructor if someone gets injured or property not owned by the member is damaged during the event. While businesses can usually provide evidence of coverage, many individuals cannot or choose not to put their homeowner’s insurance at risk. The Special Events Liability Insurance Program can be the best solution.

The special events program provides liability insurance when member-owned premises are used for special events or short-term activities like classes. Examples include weddings, art festivals, parades, block parties, yoga classes, and member-sponsored events such as job fairs, carnivals, and swap meets.

If an agency sponsors but does not supervise an event like an Easter Egg Hunt or parade, this program offers additional coverage that transfers risk away from the member and the Authority.

Members administer the program, accept funds, issue certificates of insurance, and file quarterly reports with Alliant Insurance Services, with whom the California JPIA contracts for this program. The member can be added as an additional insured on the certificate. Liability limits are purchased in $1,000,000 per occurrence increments with no deductible.

Medical payments are also available with limits of $5,000 and the option to purchase $5,000 in additional increments. Participating members have received the current manual documents through email.

New program members can contact Gail White at Alliant Insurance at gwhite@alliantinsurance.com or (949) 660-8127 to enroll in this program. More information is available on the Authority’s website at http://www.cjpia.org/protection/coverage-programs/special-event-program or by contacting Jim Thyden, Insurance Programs Manager at jthyden@cjpia.org or (562) 467-8784.

The Court Report

Mayor’s Refusal to Sign Contract Not ‘Absence,’ C.A. Rules

(Reprinted from Metropolitan News Enterprise, February 17, 2015)

Panel Upholds Ruling Invalidating Controversial Montebello Hauling Contract

A mayor’s purported refusal to sign a contract duly approved by the city council does not authorize the mayor pro tem to sign the contract in the mayor’s “absence” under Government Code §40601, the Court of Appeal for this district ruled Friday.

Div. Three affirmed Los Angeles Superior Court Judge James Chalfant’s ruling invalidating a contract between Arakelian Enterprises, Inc., which does business as Athens Services, to become Montebello’s exclusive provider of commercial and industrial sanitation services.

In 2008, the council voted 3-2 to award the 15-year, $150 million contract to Athens by a 3-2 vote. The contract caused a political firestorm in the city, as all three of the council members who voted for it were eventually ousted by the voters, and the newly constituted council voted to sue its former members, and the former city administrator, for conflict of interest based on the alleged trading of their votes for campaign donations.

The Court of Appeal ruled last year that the lawsuit was not barred by the anti-SLAPP law. 

In the separate action to invalidate the contract, Chalfant ruled that the contract was invalid without the signature of Mayor William Molinari, who voted against it and refused to sign it. The city attorney, who advised the pro-Athens mayor pro tem, Rosemarie Vasquez, that she could sign the pact if the mayor didn’t, was wrong, Chalfant said.

The trial jurist also ruled that even if the contract was properly executed, it imposed a new tax that required voter approval under Proposition 218. Justice Patti Kitching, writing Friday for the Court of Appeal, said in a footnote that the lack of signature by the mayor rendered that issue moot.  

General Law City
The justice explained that as a general law city, Montebello must execute its contracts in the manner prescribed by the Government Code, including the mayoral signature requirement. The evidence before Chalfant, she noted, showed that the mayor was present at City Hall the day the mayor pro tem signed the hauling contract, which was apparently taken from the mayor’s mailbox.

While §40601 does not define “absence,” she said, the words “absence” and “absent,” in reference to a mayor, are used elsewhere in the code. It is clear from the usages, she said, that the terms refer to a lack of physical presence, rather than an unwillingness to perform a function while present. 

“Our conclusion is bolstered by the lack of any statutory authorization for the actions taken by the City Attorney and Mayor Pro Tempore in this case,” the jurist wrote. “While physical absence is essentially a binary concept—the mayor is either physically present or he is absent, absence in the dereliction of a ministerial duty sense advanced by Athens is more amorphous—requiring at a minimum some determination that the mayor has a ministerial duty he refuses to perform.  Here, that determination was initially made by the City Attorney, who recommended that the Mayor be ‘deemed absent’ for purposes of signing the Contract.  The determination then was apparently ratified by the Mayor Pro Tempore, who, on the City Attorney’s advice, purportedly signed the Contract.  However, nothing in the Government Code authorized the City Attorney or Mayor Pro Tempore to unilaterally deem the Mayor absent based on their own determination that he had failed to perform a ministerial duty.”

The appropriate procedure, she said, would have been to seek a writ of mandate directing the mayor to sign the contract. 

No Attorney Fees

Although the citizen who brought the action succeeded in having the contract invalidated, the appellate panel ruled that Chalfant did not abuse his discretion in denying attorney fees under the private attorney general statute, based on his finding that the plaintiff took on no financial burden by litigating because his fees were paid by competitors of Athens. 

Attorneys on appeal were Stephen M. Miles and Frank W. Battaile for the plaintiff, Mike Torres; John G. McClendon of Leibold McClendon & Mann, P.C. for the city; and Paul T. Gough, Colleen C. McAndrews, and Thomas W. Hiltachk of Bell, McAndrews & Hiltachk, along with Gibson, Dunn & Cutcher’s Robert E. Palmer, Lauren D. Friedman, Courtney A. Dreibelbis and Thomas Manakides for Athens. 

The case is Torres v. City of Montebello (Arakelian Enterprises, Inc.), B246615.