February 2017 - Issue 60

New Training Course:  Workplace Harassment for Local Agency Officials

Data Security Alert

Save the Date: 22nd Annual Risk Management Educational Forum

Authority Live! on Proposition 64

Short Takes

Hearing Conservation

Agreements with Non-Profits

Property Schedules

‘Trail’ Immunity Bars Suit by Man Hit by Golf Ball—Court of Appeal

News: Worthy

New Training Course:  Workplace Harassment for Local Agency Officials

By Ryan Thomas, Training and Loss Control Specialist

The Authority is pleased to announce a new classroom training, entitled “Workplace Harassment Training for Local Agency Officials."  This training enables your agency to comply with the training requirements under AB 1661 and will be offered regionally.  Should your agency wish to host this training, we ask that you allow officials from other member agencies to attend as well.  This will enable this training to be offered in a manner that furthers the most efficient use of Authority resources.

AB 1661 requires that compensated local agency officials, including elected officials and commissioners, receive workplace harassment training.  AB 1661 applies to any city, county, city and county, charter city, charter county, charter city and county, or special district, and it mandates harassment prevention training for any member of a local agency legislative body and any elected local agency official who earns any type of compensation, salary, or stipend.  The training must be completed within six months of taking office, and every two years thereafter.  A local agency official who serves more than one local agency may satisfy the training requirements once every two years, without regard to the number of local agencies he or she serves.

If you are interested in scheduling this training for your local agency officials, please contact Ryan Thomas, Training and Loss Control Specialist.

News: Worthy

Data Security Alert

Tax season is the perfect time for cyber criminals to send scam emails to human resources departments posing as the CEO to request W-2 forms and other information.  W-2 forms and records have a treasure trove of information cyber criminals dream about: names, addresses, Social Security numbers, wages, etc.Phishing scam graphic

Cyber criminals use this information to commit tax fraud and file fake tax return requests to steal the victim’s refund.  W-2 information also makes its way onto the dark web, usually selling for anywhere between $4 and $20 per record.

The typical scenario for this type of attack looks similar to the business email compromise or CEO fraud. Phishers will compromise or spoof the email of a company’s executive, most likely the CEO.  They email the human resources or payroll department to request W-2 data to be compiled in a file and emailed immediately.

The IRS shares some of the common language to be aware of from these scam emails:

  • Kindly send me the individual 2016 W-2 (PDF) and earnings summary of all W-2 of our company staff for a quick review.
  • Can you send me the updated list of employees with full details (Name, Social Security Number, Date of Birth, Home Address, Salary).
  • I want you to send me the list of W-2 copy of employees’ wage and tax statement for 2016, I need them in PDF file type, you can send it as an attachment. Kindly prepare the lists and email them to me asap.

Victims of tax return fraud usually learn of the crime after having their returns rejected due to the fraudsters filing before them.

IRS Alert

The IRS issued an urgent alert regarding these types of scams, noting cyber criminals are starting to combine the W-2 phishing scam with the wire transfer fraud.  Once the human resources department sends over the W-2 data requested, the phishers will email the payroll or finance department asking for a wire transfer to be completed.  The IRS notes that the range of targets for these attacks is only increasing.  Phishers are targeting school districts, healthcare organizations, chain restaurants, staffing agencies, and non-profits.

News: Worthy

Save the Date: 22nd Annual Risk Management Educational Forum

The future has long been a major focus of philosophers, scientists and religious leaders, testing even the greatest of minds. Winston Churchill is famously quoted as saying “It is always wise to look ahead, but difficult to look further than you can see.”Forum 2017 black logo

But the future is inescapable and common to every individual, every discipline, and every organization. How will we respond to the need for relevance, change, succession, and stability? Are we prepared to face every challenge, setting a path with purpose, competitiveness, and confidence? At the California JPIA, we believe that we can face the future of risk management together.

This fall, the Authority will hold its 2017 Risk Management Educational Forum in Santa Barbara, California from October 11 – 13, 2017. Over the course of two and one-half days, attendees will be absorbed in contemplating issues that could create future exposure and loss for local government. Led by future-minded experts, participants will draw from the lessons of the past to chart a new course for their organizations.

Come prepared to be inspired by this year’s keynote speaker, Doc Hendley. Doc is a CNN Hero and President and founder of the organization Wine to Water, bringing a knowledge of civil and human rights, global affairs and empowerment to his inspirational presentations.

Mark your calendar and save the date for the Authority’s 22nd Annual Risk Management Educational Forum, entitled “Facing the Future Together in Risk Management. Registration and general Forum information, including sessions and speakers, will be available in May.

News: Worthy

Authority Live! on Proposition 64

By Ryan Thomas, Training and Loss Control Specialist

In January, the California JPIA presented the latest installment of Authority Live!, focusing on the passage of Proposition 64 and the resulting “Adult Use of Marijuana Act” (AUMA).  Authority Live! is a web-based, live event designed for Authority members to receive the latest information on important and topical issues.

The guest speaker at this event was Stephen A. McEwen, Partner at Burke, Williams & Sorensen, LLP who has advised numerous municipal clients on matters involving medical marijuana. Topics discussed at the event included the development and enforcement of ordinances covering the regulation of marijuana businesses, personal use and private cultivation of marijuana.  

If interested in viewing a recording of the live event, members may contact Ryan Thomas, Training and Loss Control Specialist, by email for more information.

Stay tuned for information on the next Authority Live! event, which will take place in the spring and will focus on active shooters in the workplace.  

News:  Worthy

Short Takes

By Ryan Thomas, Training and Loss Control Specialist

The Authority is in the process of developing “Short Takes”, which are brief, recorded videos that cover a wide array of topics that we feel will benefit Members.  These five to 10 minute videos will augment the Authority’s e-learning training library and “Authority Live! events” by covering topics in a quick-hitting yet informative way.  Examples of topics include:  Preventing workplace horseplay, quick overview of Run-Hide-Fight, Declination of Medical Treatment form for workplace injuries/illness, the importance of facility inspections/what to look for, and certificate of insurance and endorsement review tips.  The topics will also prove beneficial to your agency as tailgate videos and as supplemental training content. 

For further information regarding Short Takes, or to provide ideas for potential topics, please contact Ryan Thomas, Training and Loss Control Specialist

Risk Solutions

Hearing Conservation

By Melaina Francis, Risk Manager

Occupational noise exposure is determined by two factors, the level of noise generated and the amount of time spent in that environment. 

Title 8, California Code of Regulations, General Industry Safety Orders, Sections 5095-5100 contain several requirements for employers to control occupational noise exposures.  Monitoring noise levels are required to determine if employees are exposed to noise at or above an 8-hour time-weighted average (TWA) of 85 decibels measured on the A-scale (slow response) otherwise referred to as (dBA).  If the monitoring indicates that there is an exposure above 85 (dBA), for an 8-hour (TWA), the employer is required to implement a hearing conservation program.

Identifying locations, specific activities, and equipment in the workplace that emit noise and evaluating if the noise levels are at or above 85 (dba) is the first step to a noise assessment.  There are published resources available to assist in this decision process, such as the chart below.

Conducting a walkthrough of these locations at different time intervals is essential. Should results of this preliminary assessment indicate that noise exposure levels Noise Levelslikely trigger compliance standards, the next step is to conduct a noise survey.  This noise monitoring test may be conducted by different methods; one type is a sound level meter (SLM).  The SLM takes the sound pressure level at one instance in a particular location typically held at arm's length at ear height for those exposed to the noise.  A standard SLM takes only instantaneous noise measurements.  An SLM can also be used to evaluate engineering controls aimed at reducing noise levels. Dosimeters are worn by the employee to measure their personal sound exposure.  The employee is asked to wear a noise dosimeter over a full eight-hour work shift to determine the TWA.  The results of a noise survey should indicate whether or not your agency (or possibly certain departments within your agency) must comply with Cal/OSHA’s hearing conservation program.

According to National Institute of Occupational Safety and Health (NIOSH), ten million people in the U.S. have a noise-related hearing loss.  Twenty-two million workers are exposed to potentially damaging noise each year.  Loud noises not only can cause hearing loss but also stress, fatigue, loss of concentration, lower morale, and contribute to accidents.  A 2016 study by NIOSH found that the mining sector had the highest prevalence of hearing impairment at 17%, followed by the construction sector (16%) and the manufacturing sector (14%).  The public safety sector had the lowest rate of hearing impairment, at 7%.

For agencies that must comply with a hearing conservation program, here are the necessary requirements.

Determine if engineering or administrative controls may be exercised first, as this is the best solution for eliminating or controlling the noise hazards.

  • Engineering controls:
    • Quieter machinery 
    • Quieter processes 
    • Reduction of noise transmission 
    • Isolation or insulation of equipment or the equipment operator 
    • Proper maintenance of machinery and equipment 

  • Administrative controls:
    • Rotation of employees to limit exposure times 
    • Flexible machinery operation schedules to limit exposure 
    • Task rotation to reduce the amount of time an employee must spend in a noisy area 
    • Purchasing procedures that specify maximum noise levels 

If administrative and engineering controls are not feasible, hearing protection shall be provided at no cost and may consist of earmuffs and ear plugs.  There are many varieties of earplugs such as banded, foam, and molded styles.  Employees should be offered various options to ensure the most comfortable fit possible while attaining the appropriate Noise Reduction Rating (NRR).

Employees determined to be exposed at or above the 85 dBA action level shall be included in the agency’s audiometric testing program, that is provided at no cost to the employee.  The program includes a baseline audiogram as part of the initial physical examination and an updated audiogram test annually after that.  Any changes in hearing levels over time should be thoroughly investigated as to the cause, and it should be noted that testing itself is not a preventative approach to hearing conservation. It is recommended to review audiometric results immediately with employees, since doing this immediately after testing yields a more positive impact.  To obtain a fact sheet explaining the audiometric testing process, please visit this NIOSH Publication resource.

All audiograms will be compared to the employee’s baseline to determine if the audiogram is valid and if there has been a threshold shift of 10 dB or more.  Per Cal/OSHA standard 14300.10 (Recording Criteria for Cases Involving Occupational Hearing Loss), “If an employee's hearing test (audiogram) reveals that the employee has experienced a work-related Standard Threshold Shift (STS) in hearing in one or both ears, and the employee's total hearing level is 25 decibels (dB) or more above audiometric zero (averaged at 2000, 3000, and 4000 Hz) in the same ear(s) as the STS, you must record the case on the Cal/OSHA Form 300.”   For more information regarding evaluating thresholds, please visit the Department of Industrial Relations - Cal/OSHA website.

Training, record keeping, and ongoing monitoring of the program are all essential components of a Hearing Conservation Program.  To further assist members to comply with this important standard, the Authority has recently revised the Hearing Conservation Program template, incorporating additional sections such as an Implementation and Assessment Checklist and Permissible Noise Exposure Appendix, along with added descriptive text expanding upon the standard.  This template is designed to assist members with their compliance efforts of Title 8, California Code of Regulations, General Industry Safety Orders, Sections 5095-5100, Hearing Conservation requirements and contain no changes in these regulations.

To access the new Hearing Conservation Program template, please visit the Resources and Documents page of the California JPIA website here.

For questions regarding the Hearing Conservation Program, please contact your assigned Risk Manager.

Risk Solutions

Agreements with Non-Profits

By Maria Galvan, Risk Manager

Many members work with non-profits to assist them with functions of their operations. Some examples include friends of the library groups or a non-profit that runs a member’s historical museum or facility. During risk management evaluations, the Authority’s risk managers have found that some agencies do not have written agreements with non-profits they work with. For members seeking to minimize potential liability and ensure coverage is in place for the non-profit in the event of a loss, contractual risk transfer and a written agreement with a non-profit is a useful risk management tool.

One misconception heard during evaluations is the belief that the non-profit is automatically covered under the member’s liability and/or workers’ compensation coverage. To the contrary, a non-profit organization is not an automatic protected party under the Memoranda of Coverages for the Primary and Excess Liability Programs (MOCs). According to the MOCs, a non-profit or unincorporated association is a protected party under the following definition:

Any nonprofit California corporation or unincorporated association under written contract, approved by the Member’s governing board or council, to perform specified functions under the Member’s direction and control. The corporation or unincorporated association is a Protected Party only for Occurrences arising out of the functions described in the contract. For the purposes of this section, direction and control means the authority of the Member to be involved in decision making and to overturn decisions.

Members need to evaluate whether they are involved in the non-profit’s decision-making process before determining whether coverage would be extended to the non-profit under the MOC, and guidance from the California JPIA is advised. When a non-profit is not under the direction and control of a member, it may be possible to extend coverage under a protected contract. As stated in the MOC,

Protected Contract means a written agreement that satisfies all of the following:

  1. The agreement pertains to the Member’s operations and by the contract terms the Member assumes the Tort Liability of another to pay damages because of Bodily Injury or Property Damage to a third person or organization;
  2. The agreement is entered into prior to the Bodily Injury or Property Damage for which a Claim is made; and
  3. The agreement, including its value, is reported by the Member and approved by the Authority through issuance of an evidence of coverage letter prior to the Bodily Injury or Property Damage and the value is added to the Member’s annual payroll for use in any retrospective deposit or annual contribution computation.

A Protected Contract may cover an architect, engineer, or surveyor for his or her role as a Public Official, except for the application of paragraphs B.(i) and B.(ii) below. Protected Contracts may apply to contract public works directors, building officials, planning directors, city managers, Chief Executives, city attorneys, city prosecutors, redevelopment directors, or other contracted Public Officials for occurrences arising out of their official duties, but this coverage applies only to the named contract Public Official and does not extend to other individuals within the contractor’s firm.

Protected Contract does not include any part of any contract or agreement:

  1. That indemnifies any person or organization for injury or damages caused by or arising out of the ownership, operation, maintenance or use of any AircraftAirport or Watercraft;
  2. That indemnifies an architect, engineer, or surveyor. This exclusion does not apply in the instance where an individual is under an exclusive contract as a contract Public Official solely for the benefit of the Member (i.e., no work is performed by the person for any other person or entity), for injury or damage arising out of:
    1. Preparing, approving, or failing to prepare or approve maps, drawings, opinions, reports, surveys, change orders, designs or specifications; or
    2. Giving or failing to give directions or instructions, if that is the primary cause of the injury or damage;
  3. Under which the Protected Party, if an architect, engineer, or surveyor, assumes liability for injury or damage arising out of the Protected Party’s rendering or failing to render professional services, including those listed in B. above and supervisory, inspection, or engineering services; or
  4. That indemnifies any person or organization for damages by fire, explosion, or water damage to premises rented or loaned to the Member.

When it comes to workers’ compensation coverage, a non-profit’s volunteers would only be covered under the Memorandum of Workers’ Compensation and Employer’s Liability Coverage under the following definition:

Volunteers are considered employees under this Memorandum only if the Member has a resolution in effect, and passed prior to the date of injury or illness at issue, providing workers’ compensation coverage to volunteers under Labor Code §3363.5, and while performing specific functions in the course and scope of authorized activities under the direction and control of the Member.

Members are advised to work with their legal counsel when drafting agreements with non-profits and consult with their assigned Authority risk manager for guidance. The agreement should clearly define the scope, function, and responsibilities of both parties to the agreement.

A member’s indemnity obligations and coverage intent must be clear. For example, in some cases, a member may not want to extend automobile liability coverage, the non-profit’s volunteers are not considered employees for purposes of workers’ compensation coverage, or the member may not want to extend coverage related to the non-profit’s fundraising efforts.

If you have questions, please contact your assigned Risk Manager.

Coverage Matters

Property Schedules

By Alex Mellor, Risk Manager

As all members who participate in the Authority’s Property Insurance Program are aware, there have been some significant changes to the program beginning with the 2016-17 coverage period. These changes include revisions to the cost allocation formula, resulting in member premiums being more sensitive to property characteristics and claims experience.

In order to obtain the lowest possible premium, and to ensure that insurance carriers on the program have accurate underwriting information, members must now pay greater attention to ensuring that their property schedules are up to date with important underwriting data. This includes building construction type, occupancy type, protection systems (i.e. fire alarms, sprinklers), and exposure to hazards (proximity to a high-hazard operation, wildfire risk; damaging winds and/or flood and earthquake zones). In addition, each property location or group must be scheduled at accurate replacement cost.

Recognizing the importance of ensuring that the information in their property schedule is as accurate as possible, a number of members have taken a proactive approach to gathering and updating that data.

One such member, City of La Quinta, gathered representatives from each city department and divided the responsibility for collecting the required underwriting data. For example, parks and recreation were responsible for gathering information on city parks, while the housing department was responsible for gathering information on city-owned residential properties.

“It just seemed easier to divide the work amongst staff, and get everyone involved in the process”, commented Pam Nieto, Deputy City Clerk.

“We created inventory forms and then asked staff members from each department to inspect their own properties and gather the needed data”.

Once completed, the inventory forms were returned to the City Clerk’s office and the city’s property schedule was updated through the Alliant Oasys-Net system. The inventory forms also serve to document the process by which information was collected and documented.

Whether the required underwriting information and property values are obtained via an internal process, or through formal appraisals, members are strongly encouraged to review and update the information in their property schedule.

For more information, please contact Insurance Programs Manager, Jim Thyden, or your assigned Risk Manager.

The Court Report 

‘Trail’ Immunity Bars Suit by Man Hit by Golf Ball—Court of Appeal

(Reprinted from the Metropolitan News Enterprise, January 27, 2017)

A Government Code section that protects public, and certain private, entities from liability to persons injured while using public recreational trails bars a suit by a man who was hit by a flying golf ball while walking on a public path next to a golf course, the Fourth District Court of Appeal has ruled.

Div. One Wednesday certified for publication the Jan. 18 opinion by Presiding Justice Judith McConnell, in which the court affirmed San Diego Superior Court Judge Randa Trapp’s award of summary judgment to Crockett & Company, Inc.

Crockett operates the Bonita Golf Club in unincorporated San Diego County. In 2009, the club granted the county two public easements for an unpaved hiking and equestrian trail parallel to the golf course.

The course is separated from the trail by a chain-link fence about six feet high, and a line of eucalyptus trees spread eight to 12 feet apart, in the area of the 13th hole. The plaintiff, Miguel Leyva, was struck in the eye by a golf ball while walking on the trail with his wife in 2013, costing him 80 percent of the vision in his left eye.

Crockett pled trail immunity under Government Code §831.4 and recreational use immunity under Civil Code §846 as defenses. Trapp ruled that trail immunity foreclosed the plaintiff’s claim.

Court of Appeal Opinion

McConnell, writing for the Court of Appeal, agreed. She explained that Crockett qualifies for the immunity as a private landowner that dedicated an easement to a public entity for public recreational use.

The jurist rejected the argument that the immunity did not apply because the suit involved a failure to erect safety barriers, rather than an allegedly negligent condition of the trail. The plaintiff argued that its claim fell outside the scope of the statute, which applies to claims for “an injury caused by a condition of…[a]ny unpaved road which provides access to fishing, hunting, camping, hiking, riding…water sports, recreational or scenic areas” or “[a]ny trail used for the above purposes.”

Prior Court of Appeal decisions explain that the purpose of the immunity is to encourage public entities to make property available for public recreational use, by sparing those entities the expense of defending liability claims and the costs of putting the property in a safe condition.

McConnell explained that the statute has been held to bar claims regarding both design and maintenance of trails, and rejected the argument that the trail’s location next to the golf course “has nothing to do with the fact that [Leyva] was injured by a golf ball from the Club property” and that the injury was not caused by a “condition” of the trail.

Leyva, the presiding justice said, “would not have been struck by the golf ball if he had not been walking on a trail located next to a golf course.”

Case Cited

McConnell cited Amberger-Warren v. City of Piedmont (2006) 143 Cal.App.4th 1074, in which the court said the immunity barred a claim for injuries sustained in a slip-and-fall on a path in a public dog park. Rejecting the plaintiff’s argument that immunity did not apply because the alleged causes of the injuries—the city’s failure to install a guardrail and its decision to locate the path next to a slope—were unrelated to the design of the path, the court said immunity “must” extend to a trail’s design and location.

“Just as the trail’s location next to a hill in Amberger-Warren…is an integral feature of the trail, so is the trail’s location next to the golf course,” McConnell wrote. “Further, it makes no difference whether the alleged negligence in failing to erect safety barriers along the boundary between the golf course and the trail occurred on the golf course or on the trail itself because the effect is the same.”

The jurist went on to say that it was unnecessary to determine whether recreational use immunity barred the action as well.

The case is Levya v. Crockett & Company, Inc., 17 S.O.S. 445.