March 2017 - Issue 61

Spotlight on 2016 Capstone Award Winner, Bellflower’s Susan Crumly

Local Agency Officials and Employees - Your Private Electronic Devices Are Not So Private Anymore!!!

Release of Legal Documents

Motor Vehicle Deaths in 2016 Estimated to be Highest in Nine Years; Sharpest Two-Year Climb in 53 Years

EEOC Releases Fiscal Year 2016 Enforcement and Litigation Data

Hugging Employees May Create a Hostile Work Environment, Appeals Court Rules

Discovery Rules Apply to Public Records Litigation—Court of Appeal

Officer Who Socialized With Murder Suspect Loses Benefits

News:  Worthy

Spotlight on 2016 Capstone Award Winner, Bellflower’s Susan Crumly

By Courtney Morrison, Administrative Analyst

After being presented with the Authority’s Capstone Award at the 2016 Risk Management Educational Forum, Susan Crumly, Human Resources and Risk Manager for the City of Bellflower, says she was pleasantly surprised at how many of her peers at the Forum stopped to congratulate her. Susan was one of five finalists for the award and was nominated for outstanding risk management efforts for her agency. “I like that the award also brought the city of Bellflower to the attention of more people,” Susan said, “as risk management is a very important part of our agency’s long-term strategy.”

When asked to share her thoughts on the Capstone Award experience, Susan noted that the attention from the Capstone has led to increased networking opportunities, and 02 News Worthy - Forum Capstone Award Photo Oct. croppedshe also wonders if it might be helpful to learn about some of the programs and procedures the other Capstone finalists have put into place at their agencies. “It would be nice to see the practical uses of some of these programs and come away with something that other Authority members can use as a resource.”

Susan most recently developed a training for mid-level managers. “We go through various risk management and personnel issues, including why performance evaluations are important, why it’s important to let the Authority know if you have a potential claim, and who to contact at the Authority if you’re working on a contract. We work through about 20 to 30 issues to make sure we’re all on the same page,” explains Susan.

The Capstone Award is presented each year to an individual at a member agency who best exemplifies the practice of risk management by working to support risk management efforts, developing loss control programs, and coordinating systems that support their agency’s risk management efforts.

Members who know of someone who has demonstrated excellence in risk management can nominate them for the Capstone Award. Nominations will be accepted beginning in April: details will be available on the Authority’s website.

The 22nd Annual Risk Management Educational Forum, “Facing the Future Together,” will be held October 11 – 13, 2017 at the Fess Parker Resort in Santa Barbara.

Photo: Norm Lefmann, Assistant Executive Officer for the California JPIA, and Susan Crumly, Human Resources and Risk Manager for the City of Bellflower and 2016 Capstone Award winner

News: Worthy

Local Agency Officials and Employees - Your Private Electronic Devices Are Not So Private Anymore!!!

By Kane Thuyen, Senior Associate, Burke, Williams & Sorensen, LLP

California Supreme Court Holds That Local Agency Employee And Official Emails Or Text Messages About Local Agency Business, Sent, Stored Or Received In A Personal Account Or Private Electronic Device, Are Not Exempt From Disclosure Under The California Public Records Act

In the wake of this recent California Supreme Court decision, local agencies will want to consider refining their public records and records retention policies and adopt new policies for conducting searches of the emails, and private phones and data devices of local agency officials and employees. 

On March 2, 2017, the California Supreme Court issued its expansive opinion in City of San Jose et al. v. The Superior Court of Santa Clara County (Smith), which involved a public records request seeking emails and text messages sent or received on private electronic devices used by officials and employees of the City of San Jose.  The Court addressed head on whether such emails or text messages were “public records” subject to disclosure under the California Public Records Act (CPRA).  The Court concluded, even though emails and texts were sent, received, or stored on the official or employee’s private electronic devices, that because they related to the City’s business, the emails and text constituted public records subject to disclosure under the CPRA.  The Court further held that the local agency had an obligation to direct their officials and employees to search for and produce responsive records.

In reaching its conclusion, the Court largely rejected the privacy-based policy arguments of local agencies and collective bargaining groups, holding that records that would otherwise be considered public records did not become exempt from production simply because they were not in a local agency’s physical possession or held on an official or employee’s private electronic device.  However the Court did describe a series of factors for local agencies to consider in determining whether a writing held on a private device was sufficiently related to the local agency’s business to constitute a public record, including: content; context; purpose of the message; the audience to whom it was directed; and whether it was prepared by the official or employee acting or purporting to act within the scope of their duties. 

The Court suggested that local agencies develop their own internal policies to address the disclosure requirements of the CPRA in light of the privacy concerns, including crafting agency-specific internal policies for conducting searches for relevant “public records” that may be found in private email accounts or devices.

News: Worthy

Release of Legal Documents

By Paul Zeglovich, Liability Program Manager

In December of 2016 a long-awaited ruling was filed in the Supreme Court of California relative to the need to release legal invoices in response to a Public Records Act Request.  In a four-to-three opinion, the California Supreme Court found that limited portions of attorney invoices provided to public entity clients may be disclosable as public records under the California Public Records Act (CPRA).  The court upheld the commonly followed practice that the entirety of invoices for “pending and active legal matters” are absolutely exempt from disclosure.  As for concluded matters, the Court held that portions of invoices, for example, the cumulative amount spent on the litigation, may be disclosable unless the public entity can provide a valid reason why it would disclose the deliberative process between attorney and client.

By way of background on the issue, the ACLU submitted a CPRA request to the County of Los Angeles, seeking attorney invoices from various open and closed lawsuits.  The County responded by disclosing some redacted invoices for the closed lawsuits but denied the request as it related to the open lawsuits, citing the attorney-client privilege.  The ACLU responded by filing suit to compel the unredacted disclosure of all the invoices, open or closed.  The trial court ordered the County to produce all invoices, including those on open matters, with only limited information redacted.  The County appealed and the Court of Appeal vacated the trial court’s order, holding that all invoices were confidential communications between attorney and client and, thus, were attorney-client privileged communications and exempt from disclosure under the CPRA.

The County then petitioned the California Supreme Court and the case was accepted.  The California Supreme Court ruled that an attorney-client privileged communication must be made for the purpose of legal consultation.  Applying this rule, the Court reasoned that invoices generally are not issued for the purpose of legal consultation, but are only ancillary to the attorney-client relationship.  Accordingly, attorney invoices could not categorically be considered privileged documents exempt from disclosure under the CPRA.

Alternatively, the Court recognized that the content of an attorney invoice could fall within the scope of the attorney-client privilege by providing insight into litigation strategy, the deliberative process or legal consultation.  As for the County case in particular, the Court made a distinction between pending and concluded litigation.  For pending litigation, the Court held that everything in an invoice is privileged because even the fee totals can provide insight into an attorney’s activities and strategy.  For concluded litigation, fee totals may not be privileged if they no longer reveal confidential details of the representation.

The Court adopted a rule that exempts from disclosure invoices which either communicate information for the purpose of legal consultation or where disclosure would risk exposing information that was communicated for such a purpose, including any invoice that reflects work in active and ongoing litigation.  The rule is therefore not absolute for either open or closed litigation, but rather, serves to govern on the issue of the content of the information to be released.

In the event your agency receives a Public Records Request for legal invoices on cases handled by the California JPIA, please contact Liability Program Manager, Paul Zeglovitch for assistance.

News: Worthy

Motor Vehicle Deaths in 2016 Estimated to be Highest in Nine Years; Sharpest Two-Year Climb in 53 Years

For the first time in nearly a decade, preliminary 2016 data from the National Safety Council estimates that as many as 40,000 people died in motor vehicle crashes last year. That marks a 6 percent increase over 2015, and a 14 percent increase over 2014 – the most dramatic two-year escalation since 1964 – 53 years. The preliminary estimate means 2016 may have been the deadliest year on the nation's roads since 2007. An estimated 4.6 million additional roadway users were seriously injured in 2016, and estimated cost to society was $432 billion.

A National Safety Council survey released February 15, 2017 provides a glimpse at the risky things drivers are doing. Although 83 percent of drivers surveyed believe driving is a safety concern, a startling number say they are comfortable speeding (64 percent), texting either manually or through voice controls (47 percent), driving while impaired by marijuana (13 percent), or driving after they feel they've had too much alcohol (10 percent).  

Motor vehicle fatality estimates are subject to slight increases and decreases as data mature. The National Safety Council uses data from the National Center for Health Statistics, an arm of the CDC, so that deaths occurring within 100 days of the crash and on both public and private roadways – such as parking lots and driveways – are included in the Council's estimates.

"Our complacency is killing us. Americans believe there is nothing we can do to stop crashes from happening, but that isn't true," said Deborah A.P. Hersman, president and CEO of the National Safety Council. "The U.S. lags the rest of the developed world in addressing highway fatalities. We know what needs to be done; we just haven't done it." 

With the upward trend showing no sign of subsiding, the National Safety Council is calling for immediate implementation of life-saving measures that would set the nation on a road to zero deaths:

  • Mandatory ignition interlocks for convicted drunk drivers and better education about the nature of impairment and when it begins.
  • The installation and use of automated enforcement techniques to catch speeders.
  • Laws banning all cell phone use – including hands-free – should extend to all drivers, not just teens. States with existing bans need to upgrade enforcement from secondary to primary.
  • Seat belt laws should be upgraded from secondary to primary enforcement and restraint laws should extend to every passenger in every seating position, in all kinds of vehicles.
  • All new drivers under 21 – not just those under 18 – should adhere to a three-tiered licensing system.
  • Automotive safety technologies that have life-saving potential should be standardized and accelerated into the fleet. These technologies include blind-spot monitoring, automatic emergency braking, lane departure warning and adaptive headlights.
  • Motorcycle helmet laws should be passed or reinstated.
  • Communities and municipalities should adopt comprehensive programs for pedestrian safety.

The National Safety Council has issued traffic fatality estimates since 1921. Supplemental estimate information, including estimates for each state, can be found here.

News: Worthy

EEOC Releases Fiscal Year 2016 Enforcement and Litigation Data

The U.S. Equal Employment Opportunity Commission (EEOC) released detailed breakdowns for the 91,503 charges of workplace discrimination the agency received in fiscal year 2016. This is the second year in a row that the number of charges filed with EEOC has increased.

Overall, EEOC resolved 97,443 charges and secured more than $482 million for victims of discrimination in private, federal and state and local government workplaces. The agency reduced the workload of pending charges by 3.8 percent to 73,508 -- the lowest pending charge workload in three years. The agency responded to over 585,000 calls to its toll-free number and more than 160,000 inquiries in field offices, reflecting the significant public demand for EEOC's services. EEOC has previously released fiscal year 2016 highlights. 

This is the first year that EEOC has included detailed information about LGBT charges in its year-end summary.  EEOC resolved 1,650 charges and recovered $4.4 million for LGBT individuals who filed sex discrimination charges with EEOC in fiscal year 2016. Additionally, the data show a steady increase in the four years the agency has been collecting LGBT charge data. From fiscal year 2013 through fiscal year 2016, nearly 4,000 charges were filed with EEOC by LGBT individuals alleging sex discrimination, and EEOC recovered $10.8 million for victims of discrimination.

"EEOC advances opportunity for all of America's workers and plays a critical role in helping employers build stronger workplaces," said EEOC Chair Jenny Yang. "Despite the progress that has been made, we continue to see discrimination in both overt and subtle forms. The ongoing challenge of combating employ­ment discrimination is what makes EEOC's work as important as ever."

Specifically, the charge numbers show the following breakdowns by bases alleged, in descending order:

  • Retaliation: 42,018 (45.9 percent of all charges filed)
  • Race: 32,309 (35.3 percent)
  • Disability: 28,073 (30.7 percent)
  • Sex: 26,934 (29.4 percent)
  • Age: 20,857 (22.8 percent)
  • National Origin: 9,840 (10.8 percent)
  • Religion: 3,825 (4.2 percent)
  • Color: 3,102 (3.4 percent)
  • Equal Pay Act: 1,075 (1.2 percent)
  • Genetic Information Non-Discrimination Act: 238 (.3 percent)

These percentages add up to more than 100 because some charges allege multiple bases.

EEOC legal staff resolved 139 lawsuits and filed 86 lawsuits alleging discrimination in fiscal year 2016. The lawsuits filed by EEOC included 55 individual suits and 31 suits involving multiple victims or discrimin­atory policies. At the end of the fiscal year, EEOC had 168 cases on its active docket, of which 48 (28.6 per­cent) involve challenges to systemic discrimination and an additional 32 (19 percent) are multiple-victim cases. EEOC achieved a successful outcome in 90.6 percent of all suit resolutions.

The Court Report

Hugging Employees May Create a Hostile Work Environment, Appeals Court Rules

(Reprinted from the Los Angeles Times, March 1, 2017)

Hugging can create a hostile work environment.

In a decision Thursday, a three-judge panel of the U.S. 9th Circuit Court of Appeals revived a sexual harassment lawsuit against Yolo County Sheriff Edward G. Prieto, who was charged with hugging a female correctional officer more than 100 times over a 12-year period.

Prieto argued he also hugged male employees. If he hugged women more, his lawyers said, it was because of “genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and the opposite sex.”

But the 9th Circuit said hugging can create an abusive work environment if it is both unwelcome and pervasive.

Victoria Zetwick, the correctional officer who sued the sheriff, also charged that Prieto once kissed her when congratulating her on her marriage to another deputy.

She said she saw Prieto hug dozens of other female employees during her 12 years in the department but give male employees mere handshakes.

In defending against the suit, Yolo County said Zetwick admitted that she had hugged male co-workers occasionally.

The county also pointed to a declaration in which Zetwick described Prieto’s hugs as brief.  He made no sexual comments or touched her otherwise, the county said.

Still, the court said, Zetwick argued his hugs were “chest to breast.”

A federal district judge dismissed Zetwick’s lawsuit in 2014. But the 9th Circuit said she had offered enough evidence to possibly persuade a reasonable juror that she had suffered from sexual harassment.

“She submitted evidence from which a reasonable juror could conclude that, even if Prieto also hugged men on occasion, there were `qualitative and quantitative differences’ in the hugging conduct toward the two genders,” wrote District Court Judge Mark W. Bennett, a senior judge from Iowa who was filling in on the 9th Circuit.

She said in her suit that Prieto’s conduct made it difficult for her to concentrate. She was constantly stressed and anxious, she said, and she had to resort to taking medication for sleep.

Prieto’s hugs, she argued, had sexual overtones.

A spokesman for the sheriff's office said he could not comment on the decision while the litigation was pending.

The Court Report

Discovery Rules Apply to Public Records Litigation—Court of Appeal

(Reprinted from the Metropolitan News Enterprise, March 6, 2017)

The Civil Discovery Act applies to litigation under the California Public Records Act, the Court of Appeal for this district has ruled.

Div. Seven Thursday granted in part a petition for writ of mandate brought by the City of Los Angeles. The panel rejected the city’s claim that the discovery statute does not apply to CPRA proceedings, but ruled that Los Angeles Superior Court Judge Jane Johnson should not have imposed monetary sanctions, and that the city may interpose new objections to the discovery requested by Los Angeles attorney Cynthia Anderson-Barker.

Anderson-Barker sued the city in November 2011, seeking disclosure of electronically stored documents and data relating to vehicles impounded by the Los Angeles Police Department. The city had previously rejected Anderson-Barker’s CPRA request, saying the materials were not public records because they were owned by a private party.

Objection to Discovery

Anderson-Barker sought discovery on the issue of who owned the materials. The city objected on the sole ground that the discovery act does not apply in CPRA proceedings, and Anderson-Barker moved to compel.

Johnson granted the motion, ordered the city to pay some $5,500 in sanctions, and barred the city from making further objections to the requests. The city then brought its writ petition.

Justice Laurie Zelon, writing for the Court of Appeal, said the trial judge was correct in ruling that the discovery act applied. A proceeding to enforce the CPRA is “a special proceeding of a civil nature,” to which the Civil Discovery Act applies, according to Code of Civil Procedure §§2017.010 and 2016.020(b), the justice said.

A special proceeding, the jurist elaborated, is one that is neither an action at law or a suit in equity, but is established by statute and not dependent on the existence of a separate civil action. “Because the CPRA qualifies as a special proceeding of a civil nature, and the Legislature has not included any exemption precluding discovery in such proceedings, we conclude that the discovery act applies,” the justice wrote.

Zelon rejected the city’s argument that the CPRA’s silence as to discovery indicates that the Legislature did not intend to permit it. The justice cited cases applying the discovery act to other special proceedings, including civil commitment proceedings under the Sexually Violent Predator Act, when there was no specific statutory language on the issue.

The justice also rejected the claim that allowing discovery would be inconsistent with legislative intent that public records requests be resolved expeditiously. Trial judges can manage and limit discovery in CPRA cases, just as in other proceedings, while denying discovery outright my thwart the public’s right to know, which is the essence of the CPRA, Zelon said.

Abuse of Discretion

The jurist went on to conclude, however, that the imposition of sanctions and denial of the right to make further objections constitute abuses of judicial discretion. The case is one of first impression, she said, so the lack of prior authority constituted substantial justification for the city’s objection.

Attorneys on appeal were Deputy City Attorneys Blithe Smith Bock and Gabriel L. Ruha for Los Angeles; Shawn Hagerty, Rebecca Andrews and Victoria Hester of Best Best& Krieger for the California State Association of Counties, as amicus supporting the city; Donald Cook for Anderson-Barker; and Kelli L. Sager, Dan Laidman and Thomas R. Burke of Davis Wright Tremaine, for media and open government organizations supporting Anderson-Barker.

The case is City of Los Angeles v. Superior Court (Anderson-Barker), 17 S.O.S. 1123.

The Court Report

Officer Who Socialized With Murder Suspect Loses Benefits

(Reprinted from the Metropolitan News Enterprise, March 22, 2017)

Court of Appeal Finds No POBRA Violation

A former Oxnard police officer who was engaged in an intimate relationship with a woman he knew to be a murder suspect was justifiably denied non-monetary retirement benefits such as carrying an ex-officer’s badge and a concealed weapon, the Court of Appeal for this district held yesterday.

The appellant, Thomas Chronister, retired from his position as a commander on July 1, 2012, three days after he was questioned at the Oxnard station by Santa Monica police officers who wanted to ascertain what he knew about his girlfriend’s possible involvement in a slaying. He had been with the force for 29 years.

The girlfriend, Kelly Soo Park, had been indicted for the 2008 murder of an aspiring actress, Juliana Redding, and was free on bail. A condition of her release was that she wear an ankle monitor.

She frequently visited Chronister at the police station and went on unauthorized ride-a-longs. Their relationship was in violation of a department policy which provided:

“Except as required in the performance of official duties or, in the case of immediate relatives, employees shall not develop or maintain personal or financial relationships with any individual they know or reasonably should know is under criminal investigation.”

Chronister and Park were wed in November 2012, according to an article in the Ventura County Star. In June 2013, Park was found not guilty, after a jury trial, Yegan’s opinion said.

In May 2013, Chronister brought suit in Ventura Superior Court alleging violations of the Public Safety Officers Procedural Bill of Rights Act (“POBRA”), as well as breaches of internal policies, rules, and regulations, and denial of his federal civil rights. He sought injunctive relief and damages.

His appeal from a judgment in favor of the city, its former police chief, and its former city manager was rebuffed in an unpublished opinion by Justice Kenneth Yegan of Div. Six.

POBRA Provision

The appeals court rejected Chronister’s contention that the interrogation of him was in contravention of his rights under POBRA. A provision of the act sets forth conditions that must be met “[w]hen any public safety officer is under investigation and subjected to interrogation by his or her commanding officer, or any other member of the employing public safety department, that could lead to punitive action....” 

But, he wasn’t interrogated by his department, the opinion said, noting:

“He was interrogated by investigators from the Santa Monica Police Department.”

A commander in the Oxnard Police Department was present during questioning, but remained silent, the opinion pointed out.

It also said Chronister is wrong in contending that POBRA was violated by denying him an administrative appeal of the punitive action taken against him. Such an appeal, the court said, is available only where action is taken that can lead to an officer’s “dismissal, demotion,” or “reduction in salary.”

Voluntary Retirement

Yegan wrote that before the defendants could take such action, “appellant voluntarily retired,” elaborating:

“Immediately after the June 28, 2012 interview, appellant was placed on administrative leave, which meant that he was suspended with pay. But the suspension was rendered moot by his retirement three days later.”

He said the denial of a retirement badge, a concealed weapons permit, and opportunity to buy his service weapon “did not qualify as ‘punitive action.’”

Chronister was not entitled to those benefits by an internal policy, the opinion continued.

Other contentions were also rejected.

The case is Chronister v. City of Oxnard, B267929.