September 2017 - Issue 67

Risk Management Educational Forum: 2017 Capstone Award Finalists Selected

Risk Managers Roundtable

Authority Live! – Active Shooter in the Workplace

Workers’ Compensation Symposium

Scott Grossberg

Assembly Bill 2007

Adverse Employment Action May Be Based on ‘Political’ Factors

News: Worthy 

Risk Management Educational Forum: 2017 Capstone Award Finalists Selected

The 2017 Capstone Award finalists have been selected and will be recognized at theCJPIA_RMEF 2017_Email Header Authority’s 22nd Annual Risk Management Educational Forum. The Capstone Award is presented each year to an individual that best exemplifies the practice of risk management in the public sector.

Nominations for the Capstone Award were received from across the Authority membership, and finalists for the award were determined based on the following key criteria:

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

The Authority is pleased to announce the five finalists:

  • Debbie Bell (Management Services Director, City of Laguna Niguel)
  • Amy Dallosta (Accounting Technician II, City of Indian Wells)
  • Isaac Etchamendy (Associate Civil Engineer, City of San Marcos)
  • Karen Johnson (Personnel Analyst, City of Temple City)
  • Kristen Petersen (Assistant City Manager/Director of Administrative Services, City of Duarte)

One of these finalists will be honored as the Capstone Award recipient during Thursday morning’s opening session, beginning at 8:00 a.m.


News: Worthy

Risk Managers Roundtable

By Maria Galvan, Risk Manager

Last month, the California JPIA conducted Risk Manager Roundtables in La Palma, Indio, and Paso Robles. The topic was Creating Intergenerational Harmony in the Workplace, and drew 25 participants from member agencies.

Doug Sjoberg of Sjoberg Training Services, facilitated the roundtables. An overview of the four generational characteristics in the workplace (Traditionalists, Baby Boomers, Gen X, & Millennials) was provided. The discussion emphasized that each generation has a different way of learning, advancing, and collaborating. Other points addressed are that succeeding generations must learn new technologies more quickly, older employees must be willing to learn from younger ones, and younger employees must not ignore the wisdom held by older employees.

An element towards intergenerational harmony that was discussed in detail during the Roundtables was “How You Say What You Say – Matters.” Examples were provided for the following elements of communication:

1. Tone and temper when packaging your messages

2. Make, not demand, action through requests and recommendations

3. Positioning your message

4. When opinions differ (“pushback”)

5. Understand your style - understand your listener’s style.

6. Consider the possible consequences of your message.

To request a copy of the Creating Intergenerational Harmony in the Workplace Roundtable materials, please contact training@cjpia.org.

Dealing with Cal/OSHA is the topic for the November Risk Manager Roundtable series. The Roundtables will take place on:

  • Tuesday, November 7, 2017, 12:00 p.m.- 2:00 p.m., California JPIA, California Room, 8081 Moody Street, La Palma
  • Tuesday, November 14, 2017, Desert region
  • Tuesday, November 15, 2017, Central Coast region

Registration details for the Desert and Central Coast regional offerings will be posted on the training calendar soon.

Dick Monod De Froideville, a former Cal/OSHA inspector, will facilitate the November roundtables. Participants of this Roundtable will learn what Cal/OSHA is looking for during inspections and audits, and how to best prepare for that eventuality. 


News:  Worthy

Authority Live! – Active Shooter in the Workplace

By Ryan Thomas, Training and Loss Control Specialist

One of the more serious threats to organizations these days is the threat of violence.  None is more frightening than the possibility of an armed intruder with hostile intent in the workplace or other public places.  The best way to maximize the safety of you, your coworkers and the public or patrons that may be in your facilities is to know what to do before a tragic situation occurs.

On Monday, November 6, 2017 at 10:00 a.m., the California JPIA will present the latest installment of Authority Live!, focusing on what to do in the frightening event of encountering an active shooter in the workplace. 

The guest speaker for this hour long event is Dr. Steve Albrecht, who is internationally-known for his consulting and training work in workplace violence prevention training programs, school violence prevention, and high-risk human resources.  Dr. Albrecht will discuss tactics such as “Run, Hide and Fight” which are proven the best chance for survival of you and others during an active shooter incident.  Please contact Ryan Thomas, Training and Loss Control Specialist, by email or at (562) 467-8775 for more information.


News: Worthy

Workers’ Compensation Symposium

By Jeff Rush, Workers’ Compensation Program Manager

The California JPIA hosted the 9th Annual Workers’ Compensation Symposium at the Authority campus on August 16, 2017.  Eight presenters spoke on six different topics for members, adjusters, and attorneys handling workers’ compensation claims.

The program began with a presentation from one of the Authority’s Risk Managers, Alex Mellor.  Mellor addressed the topic of the Authority’s Root Cause Program, and explained that the goal of root cause initiative is to drill down following each injury to find out the root cause of an employee’s injury. The root cause is different than the proximate cause, revealing the control or system that failed. 

Bob Nagel, President of RJN Investigations, provided an update regarding several issues relative to workers’ compensation fraud.  Often, fraud is thought of in terms of an employee who may be malingering or exaggerating the extent of their injury.  Recent bills from the California Legislature have taken steps to restrict the ability of physicians indicted for fraud from practicing medicine in the workers’ compensation system. 

Steve Siegel, managing partner from Siegel, Moreno & Stettler, then addressed the topic of deposing physicians.  Siegel touched on some of the various reasons to depose physicians including to confirm whether an injury is industrial, if apportionment is applicable, or whether an employee is accurately representing the extent of their injury.

Jeff Rush, Workers’ Compensation Program Manager, provided a legislative update. There are several bills working their way through the legislature addressing topics such as apportionment, utilization review and education for patients receiving opioid medications.

DeAnn Wagner, Assistant Vice President of Claims with York Risk Services, introduced attendees to York’s new Team Comp Initiative.  This program utilizes predictive analytics to assist claims examiners in identifying files that may benefit from the oversight of a nurse case manager.

The concluding session featured a panel of attorneys; Daryn Diaz from the Law Offices of Robert Robin, Todd Sheehan of Siegel, Moreno & Stettler and Jessica Tyndall of Goldman, Magdalin & Krikes.  The panel shared some of their experiences from dealing with various Workers’ Compensation Appeals Board locations throughout the state.  The attendees gained a better understanding of the different types of court hearings that take place and the wide variety of outcomes that are possible.

If you have items you would like to see addressed at next year’s Symposium, please share your ideas with Jeff Rush, Workers' Compensation Program Manager.


Pro: Files

Scott Grossberg

by Ryan Thomas, Training and Loss Control Specialist 

If you have attended one of his trainings, you have likely heard Scott Grossberg start with the line, “This will be the best training you have ever attended.”  But, with his unmistakable showmanship, you’ll soon discover his trainings are more than a shallow promise.  You will experience a dynamic, interactive training from a facilitator who, at his core, is passionate about the learning process and is generous and gracious with05a Grossberg photo his time and knowledge.

Scott Grossberg is a founding partner of the California law firm of Grossberg & Hoehn and has served for nearly 30 years as lead trial counsel, advisor, and coach for political and business leaders, government agencies, and public employees.  Scott is also a popular public speaker, trainer, and executive coach.  He holds undergraduate degrees in Philosophy from Cal Poly Pomona, Theatre Arts from the American Film Institute and received his Juris Doctor degree from the University of La Verne College of Law. He is admitted to practice law before the Supreme Court of California, and the Supreme Court of the United States.

Scott represents public entities, public employees, and government pooling authorities in matters ranging from civil rights violations, defamation, police liability, and taxpayer lawsuits to complex, multi-jurisdictional matters. He is also called upon to offer legal opinions regarding cross-jurisdictional contracts and task force agreements, and asked to draft solutions to the challenges those situations present.  Scott focuses much of his time on technology and internet-related issues. He is the bestselling author of "The Million Dollar iPad" and "The iPad Lawyer" and maintains two technology-focused blogs that provide cutting edge and real-world technology solution and spent approximately three years presenting sessions on business technology for Apple.

A modern-day renaissance man, he has been a featured speaker, trainer and published author for many years on numerous topics including media relations, social media, technology, public speaking, memory, motivation, design immunity, handling tort claims, and police civil liability including providing past training to the Department of the Navy, Federal Bureau of Investigation and numerous law enforcement agencies throughout Southern and Central California. He is the creator of the "P3 Blueprint: Present. Persuade. Pitch" - an innovative approach to public speaking. 

Scott has served as a special prosecutor for the County of San Bernardino and as both a Judge Pro Tempore and settlement officer for the Counties of San Bernardino and Los Angeles.  When asked about his involvement with the California JPIA, he recalls “I’ve been working with the Authority for nearly 30 years. My first work concerned being retained to assist with a police use of force matter. My first presentation for the Authority was at Risk Management Conference held at the Hotel Del Coronado where I spoke about design immunity.” 

Perhaps one of the more fascinating anecdotes about Scott’s life is that he is also a magician, and a member of the Magic Castle in Hollywood.  When asked about his interest in magic and performing, he explained “I’ve been performing magic since I was a teenager. My first experience with it as a ‘performer’ was watching a magician while I was at summer camp and he was mesmerizing the other kids. I wanted to be able to do that. This started my long journey into the realm of performing. Originally, I wanted to be an escape artist like Houdini. When The Sting was released, the card work in the movie moved me to learn close-up magic. Uri Geller and his spoon-bending phenomena expanded my performances into what is called mentalism (mind-reading). Uri and I, by the way, ultimately became friends and he has been quite the inspiration. I have created a number of magic tricks/effects, written books, and created routines that I’m honored to say other entertainers are using. I’m able to give back to the magic community now by lecturing to private magic associations and at The Magic Castle.”

Whether in front of a jury, training class, or any other type of audience for that matter, Scott Grossberg always puts on a show.  


Risk Solutions

Assembly Bill 2007

by Maria Galvan, Risk Manager

Recently, the California JPIA received an inquiry on California Assembly Bill (AB) 2007, known as the Concussion Management in Youth Sports Act. It was signed by Governor Brown on September 23, 2016. The bill took effect on January 1, 2017 and will require youth sports organizations to follow certain concussion protocols.

Prior to the enactment of AB 2007, existing law required a school district, charter school, or private school, if it offers an athletic program, to immediately remove an athlete from an athletic activity for the remainder of the day if the athlete is suspected of sustaining a concussion or head injury, and prohibits the athlete from returning to the athletic activity until the athlete is evaluated and cleared by a licensed health care provider trained in the management of concussions.

Existing law also required that annually, a concussion and head injury information sheet to be signed and returned by the athlete and athlete’s parent or guardian before the athlete’s initiating practice or competition. It is important to note that AB 2007 now applies these provisions to athletes participating in youth sports organizations, as defined to include organizations, businesses, nonprofit entities, or local governmental agencies that sponsor or conduct amateur sports competitions, training, camps, or clubs in which persons 17 years of age or younger participate in any of the 27 designated sports.

While most members have outside organizations running football, softball, and baseball leagues, there are some that sponsor or conduct amateur sports competitions, training, camps, or clubs for sports designated on the legislation’s list. Member are advised to review the legislation thoroughly to ensure compliance. The following is text from AB 2007:

SECTION 1.

Article 2.5 (commencing with Section 124235) is added to Chapter 4 of Part 2 of Division 106 of the Health and Safety Code, to read:

Article 2.5. Youth Sports Concussion Protocols 124235.

(a) A youth sports organization that elects to offer an athletic program shall comply with all of the following:

(1) An athlete who is suspected of sustaining a concussion or other head injury in an athletic activity shall be immediately removed from the athletic activity for the remainder of the day, and shall not be permitted to return to any athletic activity until he or she is evaluated by a licensed health care provider. The athlete shall not be permitted to return to athletic activity until he or she receives written clearance to return to athletic activity from a licensed health care provider. If the licensed health care provider determines that the athlete sustained a concussion or other head injury, the athlete shall also complete a graduated return-to-play protocol of no less than seven days in duration under the supervision of a licensed health care provider.

(2) If an athlete who is 17 years of age or younger has been removed from athletic activity due to a suspected concussion, the youth sports organization shall notify a parent or guardian of that athlete of the time and date of the injury, the symptoms observed, and any treatment provided to that athlete for the injury.

(3) On a yearly basis, the youth sports organization shall give a concussion and head injury information sheet to each athlete. The information sheet shall be signed and returned by the athlete and, if the athlete is 17 years of age or younger, shall also be signed by the athlete’s parent or guardian, before the athlete initiates practice or competition. The information sheet may be sent and returned through an electronic medium including, but not necessarily limited to, fax or electronic mail.

(4) On a yearly basis, the youth sports organization shall offer concussion and head injury education, or related educational materials, or both, to each coach and administrator of the youth sports organization.

(5) Each coach and administrator shall be required to successfully complete the concussion and head injury education offered pursuant to paragraph (4) at least once, either online or in person, before supervising an athlete in an activity of the youth sports organization.

(6) The youth sports organization shall identify both of the following:

(A) Procedures to ensure compliance with the requirements for providing concussion and head injury education and a concussion and head injury information sheet, as contained in paragraphs (3) to (5), inclusive.

(B) Procedures to ensure compliance with the athlete removal provisions and the return-to-play protocol required pursuant to paragraph (1).

(b) As used in this article, all of the following shall apply:

(1) “Concussion and head injury education and educational materials” and a “concussion and head injury information sheet” shall, at a minimum, include information relating to all of the following:

(A) Head injuries and their potential consequences.

(B) The signs and symptoms of a concussion.

(C) Best practices for removal of an athlete from an athletic activity after a suspected concussion.

(D) Steps for returning an athlete to school and athletic activity after a concussion or head injury.

(2) “Licensed health care provider” means a licensed health care provider who is trained in the evaluation and management of concussions and is acting within the scope of his or her practice.

(3) “Youth sports organization” means an organization, business, nonprofit entity, or a local governmental agency that sponsors or conducts amateur sports competitions, training, camps, or clubs in which persons 17 years of age or younger participate in any of the following sports:

(A) Baseball.

(B) Basketball.

(C) Bicycle motocross (BMX).

(D) Boxing.

(E) Competitive cheerleading.

(F) Diving.

(G) Equestrian activities.

(H) Field hockey.

(I) Football.

(J) Full contact martial arts.

(K) Gymnastics.

(L) Ice hockey.

(M) Lacrosse.

(N) Parkour.

(O) Rodeo.

(P) Roller derby.

(Q) Rugby.

(R) Skateboarding.

(S) Skiing.

(T) Soccer.

(U) Softball.

(V) Surfing.

(W) Swimming.

(X) Synchronized swimming.

(Y) Volleyball.

(Z) Water polo.

(AA) Wrestling.

(c) This section shall apply to all persons participating in the activities of a youth sports organization, irrespective of their ages. This section shall not be construed to prohibit a youth sports organization, or any other appropriate entity, from adopting and enforcing rules intended to provide a higher standard of safety for athletes than the standard established under this section. 

While the bill’s text doesn’t specifically use the word “classes,” the inclusion of the word “training” is broad and may apply to classes. AB 2007 has not yet provided specific educational material, tools, information sheets or protocols. However, agencies can find free, online concussion training, an information sheet, and additional resources on the Centers for Disease Control and Prevention website.

Members that sponsor or conduct amateur sports competitions, training, camps, or clubs in which persons 17 years of age or younger participate in the sports outlined in the legislation are advised to have a process in place to meet the requirements outlined under Article 2.5, Youth Sports Concussion Protocols. Members should also have a documented procedure for addressing suspected concussions within their recreation department’s programming. If you have questions, contact your assigned Risk Manager.


The Court Report

Court of Appeal Holds:

Adverse Employment Action May Be Based on ‘Political’ Factors

Reverses Judgment of Nearly $4 Million in Favor of Two LAPD Officers Who Were ‘Benched’ Based on the Fatal Shooting of an Unarmed Autistic African American Man

(Reprinted from the Metropolitan News Enterprise, September 15, 2017)

The Court of Appeal for this district yesterday reversed a cumulative $3.98 million judgment in favor of two Hispanic Los Angeles Police Department officers who claimed they were discriminated against in their assignments after one of them fatally shot a 27-year-old African American man he thought was threatening them with a gun—but, it turned out, was unarmed and autistic.

The evidence showed that the officers were not penalized based on their ethnicity but, rather, because of their tactical errors and the “political implications” of returning them to the field in light of ire within the black community over the incident, Justice Elwood Lui Of Div. One declared. Los Angeles Superior Court Judge Gregory W. Alarcon, he said, should have directed a verdict in favor of the city.

“[T]he trial court should not have permitted the case to go to the jury based upon the evidence that the Officers provided,” Lui wrote.

On remand, Alarcon must scrap an award of $2.085 million in favor of Officer Allan Corrales, who on March 20, 2010 killed Steven Washington, and $1.9 million to Corrales’s partner, George Diego, and enter judgment for the city.

The officers claimed that based on their race and that of the victim, they were “benched”—denied field assignments—losing promotional opportunities and the chance of landing off-duty work. The fact that they were penalized was not in dispute; LAPD Chief Charlie Beck publicly stated:

“I do not have confidence in their ability to perform the duties of a field officer. I have no immediate intention of returning them to the field.

”The city has paid $950,000 to Washington’s mother in settlement of her wrongful death claim.

Lui's Opinion

Lui noted that under Government Code §12940(a), it is an unlawful practice for an employer “because of the race...of any person, to...discriminate against the person in compensation or in terms, conditions, or privileges of employment.

”What the plaintiffs needed to show, he said, was that they were discriminated based on being Hispanic, with the race of the victim not being juxtaposed. On the other hand, Washington’s race could play a role in the city’s justification for confining the officers to desk duties, Lui wrote, explaining:

“In deciding whether to return the Officers to the field, the City could assess the political implications of doing so without violating employment discrimination laws. Those laws would not permit the City to treat the Officers differently because they are Hispanic, but they did not prohibit the City from assessing the risk management implications of returning officers of any race to the streets of Los Angeles who had been involved in a fatal shooting of an innocent, unarmed and autistic African-American man. The Officers claimed that African-American officers would have been treated differently, but they did not introduce any competent evidence to support that claim.”

The jurist went on to say:

“An employment decision based on political concerns, even if otherwise unfair, is not actionable under section 12940 so long as the employee’s race or other protected status is not a substantial factor in the decision….

“[A]bundant evidence, including some introduced by the Officers, supported the City’s claim that the Officers remained benched because of the possible consequences of returning them to the field, not because of their race.

Washington’s Race Irrelevant

Lui said the jury should have been told it could not making a finding of discrimination by the LAPD against the officers  by taking into account that they are Hispanic and Washington was African American. He wrote:

“The lack of such an instruction permitted the Officers to blur the distinction between alleged differential treatment due to the race of the victim and the race of the Officers. For example, in closing argument the Officers suggested that any consideration of ‘race’ in how the Officers were treated was unlawful: ‘[W]hat we have shown you here is that both Diego and Corrales were essentially thrown under the bus because of race. And that is a big component in this case and I’ll show you why.’ The race of the victim was a prominent component of that theme. The Officers suggested that ‘the big elephant in the room, this was about race. Because two Hispanic officers had killed an unarmed African American.’ ”

Lui elaborated:

“Without considering alleged differences in the Officers’ treatment due to the victim’s race, the evidence is not sufficient to support the Officers’ employment discrimination claim.

“Uncoupling the Officers’ race from the race of victim Washington in analyzing the sufficiency of the evidence does not just preclude the Officers from relying on evidence that they were treated differently because their shooting involved an African-American man. Ironically, it also means that some evidence the Officers introduced helps support the City’s risk management justification.”

Beck testified that if the plaintiffs “were to get into a similar field situation and do something similar in the future, if they were involved in another, quote, unquote, ‘bad shooting,’ there’s not enough money in the city to cover that.” He said that risk management is “a big part of my job,” maintaining: “I have to look after my city.”

The officers also sued for retaliation, contending they remained benched—for an inordinately long period of time—based on having filed their lawsuit. Lui recited the original reasons for the benching, and said:

“The fact that the benching continued, even for the five-year period that the Officers identify as unusual, is fully consistent with that justification and cannot itself support a conclusion that the City’s motives changed after the lawsuit was filed.”

The case is Diego v. City of Los Angeles, 2017 S.O.S. 4644.

The attorneys on appeal were Deputy Los Angeles City Attorney Juliann Anderson, for the city, and Gregory W. Smith and Marla A. Brown, along with Douglas G. Benedon and Judith E. Posner of Benedon & Serlin for the officers.

Copyright 2017, Metropolitan News Company