October 2017 - Issue 68

Capstone Award Winner Announced at 2017 Risk Management Educational Forum

22nd Annual Forum – Members Set Attendance Record in Santa Barbara

Legislative Update - End of Year

2018 Brings Restrictions on Public Employers’ Inquiries Regarding Salary History and Conviction History

Governor Jerry Brown Vetoes Bill Easing Permits on Cell Phone Towers

New Resource Available: Proposition 64 White Paper

Occupational Safety and Health Administration (OSHA) Top 10 Violations 

Property Program Renewal and C.O.P.E. Data

News: Worthy

Capstone Award Winner Announced at 2017 Risk Management Educational Forum

The Capstone Award is presented annually to an individual at a member agency who best exemplifies the practice of risk management. The 2017 Capstone Award was presented at a ceremony held during the 22nd Annual California JPIA Risk Management Educational Forum, October 11-13, 2017, at The Fess Parker Resort in Santa Barbara.

Isaac Etchamendy, Associate Civil Engineer for the City of San Marcos, was selected Isaac Etchamendy Capstone winner 2017from five finalists and chosen for his exemplary risk management efforts. Some of Isaac’s accomplishments include the development of a risk project registry tool, preparation of a citywide risk manual that helps to identify crucial aspects of capital improvement projects and other engineering projects, and setting other risk management processes in place in order to ensure proper insurance specifications for contracts and reduced likelihood of change orders due to field inspection issues.

Michelle Bender, Human Resources/Risk Director, nominated Isaac for the Award. Michelle praised Isaac as someone who is “bringing risk management awareness to the colleagues he is working with” and furthermore “makes it clear that risk management really needs to be at the forefront of all of the projects that we are doing as an organization.”

The presentation ceremony also recognized the four other Capstone finalists. They are:

  • Debbie Bell, Management Services Director for the City of Laguna Niguel
  • Amy Dallosta, Accounting Technician II for the City of Indian Wells
  • Karen Johnson, Personnel Analyst for the City of Temple City
  • Kristen Petersen, Assistant City Manager / Director of Administrative Services for the City of Duarte

The 2018 Capstone Award will be presented in a ceremony at the 2018 Forum, which will be held from September 19-21, 2018, at the Park Hyatt Aviara Resort in Carlsbad. 

Photo: Norm Lefmann, Assistant Executive Officer for the California JPIA, with 2017 Capstone Award winner Isaac Etchamendy from the City of San Marcos.


News: Worthy

22nd Annual Forum – Members Set Attendance Record in Santa Barbara

A record 80 member agencies sent participants to the California JPIA’s 22nd Annual Risk Management Educational Forum: Risk Management – Facing the Future Together, held October 11 - 13.  Overall, 332 people representing member agencies, business partners, and Authority staff, met at The Fess Parker Hotel in Santa Barbara.

The forward-looking Forum led off Wednesday with two sessions.  During How to Avoid Being Tomorrow’s Headline: Reputational Risk, lessons learned from legal challenges and practical tips to mitigate reputation risk were shared with the audience.  In The Future of Communication is Now: Managing Social Media Risks, the audience heard effective strategies including creating a “limited public forum” for third party use of agency social media platforms, clear procedures for removal and retention of prohibited content, and the development and implementation of a comprehensive social media policy.  Those sessions were followed by Smoke on the Horizon: Recreational Marijuana Employment Concerns.  Participants were made aware of the impact of the passage of Proposition 64, which legalized marijuana for recreational use, on the public sector workplace.  Included in the presentation were the employer’s ability to prohibit drug use by employees and applicants, the constitutional limitations on a public employer’s ability to require drug testing of employees or applicants, and best practices for lawfully establishing and enforcing a drug-free workplace in the public sector.

The opening sessions were followed by a well-attended Welcome Dinner outdoors in the Plaza Del Sol, giving all in attendance an informal and relaxed opportunity to network, connect, and enjoy the evening.

On Thursday morning, after a full breakfast featuring regional networking opportunities, the Authority’s Chief Executive Officer, Jon Shull, provided a warm welcome to all assembled and introduced the Executive Committee.  Assistant Executive Officer, Norm Lefmann, provided an update of the Authority’s programs and then introduced this year’s five finalists for the Fifth Annual Capstone Award.  Each finalist was feted in a video highlighting scenes from their work and words from the person who nominated them.  Assistant Executive Officer Norm Lefmann had the honor of announcing this year’s winner: Isaac Etchamendy, Associate Civil Engineer for the City of San Marcos.

CNN Hero and President and founder of Wine to Water, Doc Hendley then took the stage to deliver this year’s Keynote address, .  Motivated by his quest to bring clean water to those who need it, Doc inspired the audience with his story of not only founding a charity but working at the sharp end of it in Darfur, the world’s most dangerous region.  He related how relationships have the power to transcend perceived barriers, taking things that once seemed impossible and making them inevitable.  He also explained his philosophy of maximizing whatever is available to make the very most of every opportunity.

The Forum’s breakout sessions on Thursday addressed progressive issues relevant to public agencies, including: Overview of Public Entity Risk Management, Public Agency Drone Use, Liability Case Law Update, Public Safety Culture, Police Civil Liability, ADA Special Events, Cal/OSHA Compliance and Beyond, Weather Patterns and Property Loss Exposures, HR Back to Basics, Global Settlements, Contractual Risk Analysis, Accident Investigation, Crisis Management, The New Era of Property Schedule Maintenance, and Understanding COPE data.  Most presentations are accessible via links in the session descriptions here: Forum Agenda.

Further reinforcing the possibility of a positive future for our public agencies and the communities they serve, Friday’s first session: Predict Your Future by Creating It, was presented by the Authority’s partner and renowned futurist, Rebecca Ryan.  Rebecca illustrated how to anticipate the future, what agencies need to be thinking about now to be future-friendly, and how to use foresight to engage and keep the next generation talent within the public sector. 

Friday’s final session was presented by Mike Madrid, owner and Principal of GrassrootsLab Inc.  Mike has been helping to shape outcomes of political campaigns for over fifteen years throughout the country.  During What’s on the Political Horizon? Mike shared how California has impacted the national political landscape, as well as the potential impact that district election mapping may have on California JPIA members.

Facing the Future Together with trusted and experienced business partners is an important factor for successful public agency risk management. This is evident in how the Authority's partners work jointly with members in managing risk. It also pertains to the role our partners play in underwriting a significant portion of the Authority's Risk Management Educational Forum. More than 40 sponsors, contributing more than $200,000, have allowed the Authority to continue to deliver an exceptional educational experience for members throughout the state of California.

Mark your calendar now for the 23rd Annual California JPIA Risk Management Educational Forum to be held September 19 - 21, 2018, at the Park Hyatt Aviara Resort in Carlsbad.  


Legislative Update

By Abraham Han, Administrative Analyst

In a continued effort to provide members with information and updates on proposed bills that may have an impact on liability or workers’ compensation matters, the Authority provides this legislative update.

The 2017 legislative session has ended. Below are key bills that were being tracked, with the bill status noted.

AB 383 (Chau). Civil actions: discovery status conference.

Position: Support

Status: Approved by the Governor.

Summary: This bill encourages discovery conferences that are a cost-effective and efficient way for the judge in the case to get a quick look at the controversy and try to resolve disputes without the hundreds or thousands of pages of notices, motions, points and authorities and separate statements, exhibits, oppositions and replies generally required for a motion to compel.

AB 976 (Berman). Electronic filing and service.

Position: Support

Status: Approved by the Governor.

Summary: This bill authorizes all trial courts in the State of California to require the electronic filing and service of documents in civil actions, as specified, in accordance with certain requirements. This bill has the potential to make litigation more cost-effective and efficient for both litigants and for the courts.

AB 984 (Calderon). Courts: frivolous actions or tactics.

Position: Support

Status: Approved by the Governor.

Summary: Current law, until January 1, 2018, authorizes a trial court to order a party, the party’s attorney, or both, to pay the reasonable expenses, including attorney’s fees, incurred by another party as a result of bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay. Current law requires a party filing a motion pursuant to those provisions to promptly transmit specified information to the California Research Bureau of the California State Library. This bill indefinitely extends the authorization of the trial court to order the payment of those reasonable expenses, but would not extend, and instead delete, the requirements on the filing party and the bureau relating to transmitting and maintaining the specified information, respectively.

AB 1008 (McCarty). Employment discrimination: conviction history.

Position: Neutral.

Status: Approved by the Governor.

Summary: This bill repeals the prohibition on a state or local agency from asking an applicant for employment to disclose information regarding a criminal conviction, as specified. The bill would, instead, provided it is an unlawful employment practice under FEHA for an employer with five or more employees to include on any application for employment any question that seeks the disclosure of an applicant’s conviction history, to inquire into or consider the conviction history of an applicant until that applicant has received a conditional offer, and, when conducting a conviction history background check, to consider, distribute, or disseminate information related to specified prior arrests, diversions, and convictions.

SB 63 (Jackson). Unlawful employment practice: parental leave.

Position: Oppose

Status: Approved by the Governor.

Summary: This bill prohibits an employer from refusing to allow an employee with more than 12 months of service with the employer, who has at least 1,250 hours of service with the employer during the previous 12-month period, and who works at a worksite in which the employer employs at least 20 employees within 75 miles, to take up to 12 weeks of parental leave to bond with a new child within one year of the child’s birth, adoption, or foster care placement. The bill would also prohibit an employer from refusing to maintain and pay for coverage under a group health plan for an employee who takes this leave. This bill would potentially expose smaller agencies to costly litigation and hardships due to a smaller workforce.

AB 241 (Dababneh). Personal information: privacy: state and local agency breach.

Position: Oppose

Status: Two-year bill.

Summary: Current law requires a person or business, if it was the source of a data security breach, to offer to provide appropriate identity theft prevention and mitigation services at no cost to the person whose information was or may have been breached if the breach exposed or may have exposed the person’s social security number, driver’s license number, or California identification card number. This bill also would require a state or local agency, if it was the source of the breach, to offer to provide appropriate identity theft prevention and mitigation services at no cost to a person whose information was or may have been breached if the breach exposed or may have exposed the person’s social security number, driver’s license number, or California identification card number. There are concerns over a lack of specificity regarding appropriate remedial services.

AB 748 (Ting). Peace officers: video and audio recordings: disclosure.

Position: Oppose

Status: Two-year bill.

Summary: The California Public Records Act requires that public records be available to the public for inspection and made promptly available to any person. Current law makes records of investigations conducted by any state or local police agency exempt from these requirements. This bill would require that an agency release any video or audio recording promptly unless there is an articulable factual basis why disclosure would substantially impede an active investigation. Furthermore, this bill specifies that an agency may not withhold recordings under this section for a period of time exceeding 90 days. The bill’s text, as currently written, undermines a local agency’s authority in determining the balance between the public interest of withholding and the public interest of disclosure.

AB 913 (Gray). Construction-related accessibility claims: extremely high-frequency litigants.

Position: Support

Status: Two-year bill.

Summary: This bill would authorize a court to enter a prefiling order prohibiting an extremely high-frequency litigant, as defined, from filing any new litigation in the courts of this state without first obtaining leave of the presiding justice or presiding judge of the court where the litigation is proposed to be filed. The bill would require the clerk of the court to provide the Judicial Council with a copy of all prefiling orders, and would require the Judicial Council to maintain and annually disseminate a record of extremely high-frequency litigants subject to those prefiling orders, as specified.

AB 1295 (Chu). Workers’ compensation: aggregate disability payments.

Position: Oppose

Status: Two-year bill.

Summary: Current law requires every employer to establish a utilization review process, as described, and establishes an independent medical review process to resolve disputes over a utilization review decision, as specified. Current law requires that aggregate disability payments for a single injury occurring on or after certain dates be limited, as provided. This bill would require that if a denial of treatment requested by a treating physician is subsequently overturned by independent medical review or by the Workers’ Compensation Appeals Board, any temporary disability paid or owing from the date of the denial until the treatment is authorized would not be included in the calculation of the aggregate disability payment.

AB 1548 (Fong). Occupational safety and health: penalties.

Position: Support

Status: Two-year bill.

Summary: Current law requires any civil or administrative penalty assessed pursuant to the California Occupational Safety and Health Act of 1973 against a school district, county board of education, county superintendent of schools, charter school, community college district, California State University, University of California, or joint powers agency performing education functions to be deposited with the Workplace Health and Safety Revolving Fund. Current law authorizes these entities to apply for a refund of the civil penalties assessed against them if specified conditions are met. This bill would expand the application of this section to public entities, defined as a city, county, city and county, district, public authority, public agency, and any other political subdivision.

SB 467 (Wilk). Civil actions: appearance by electronic means.

Position: Support

Status: Two-year bill.

Summary: Current law regulates the procedure of civil actions and permits a party who has provided notice to appear by telephone at specified conferences, hearings, and proceedings, in a general civil case, defined as all civil cases except probate, guardianship, conservatorship, juvenile, and family law proceedings. This bill would permit a party who has provided notice to appear by electronic means that provide remote access to a conference, hearing, or proceeding in all civil cases, as specified.

SB 524 (Vidak). Employment: violations: good faith defense.

Position: Support

Status: Two-year bill.

Summary: Under current law, an employer may face administrative sanctions, civil fines and penalties, and criminal penalties for violations of employment statutes or regulations. This bill would permit a person to raise as an affirmative defense that, at the time of an alleged violation of statute or regulation in a judicial or administrative proceeding, the person was acting in good faith, had sought, relied upon, and confirmed for a published opinion letter or enforcement policy of the division, and had provided true and correct information to the division in seeking the opinion letter or enforcement policy.

AB 1603 (Ridley-Thomas). Meyers-Milias-Brown Act: local public agencies.

Position: Oppose

Status: Ordered to inactive file at the request of Senator McGuire (9/16/2017)

Summary: Under the Meyers-Milias-Brown Act (MMBA) employees of local public agencies have the right to form, join, and participate in the activities of employee organizations of their own choosing for the purpose of representation on all matters of employer-employee relations. The MMBA authorizes a local public agency to adopt reasonable rules and regulations after consultation in good faith with representatives of a recognized employee organization or organizations for the administration of employer-employee relations under the act. This bill would revise the definition of “public employee” for the purpose of the Meyers-Milias-Brown Act to also include persons jointly employed by a public agency and any other employer at specified clinics and hospitals.

SB 632 (Monning). Civil discovery: depositions.

Position: Oppose

Status: Ordered to inactive file on request of Assembly Member Calderon (9/11/2017).

Summary: This bill would require that, in any civil action for injury or illness that results in mesothelioma, a deposition examination of the witness by counsel other than the witness’ counsel of record be limited to seven hours of total testimony if a licensed physician attests in a declaration that the deponent suffers from mesothelioma and is either (1) over 70 years of age and his or her health is such that a deposition of more than seven hours will prejudice the deponent’s well-being, or (2) without regard to age of the deponent, the deponent’s mesothelioma raises substantial medical doubt of the survival of the deponent beyond six months. Under this bill, the above stipulations would be in place regardless of the complexity of a case.

Bills with miscellaneous status

SB 772 (Leyva). Occupational safety and health: regulations.

Position: Oppose

Status: Read third time and amended. Ordered to third reading (9/7/2017).

Summary: Current law exempts a standard or amendment to any standard adopted by the Occupational Safety and Health Standards Board that is substantially the same as a federal standard from specified provisions of the existing Administrative Procedure Act, including a requirement that a state agency proposing to adopt, amend, or repeal a major regulation, as defined, on or after November 1, 2013, prepare a standardized regulatory impact analysis in the manner prescribed by the Department of Finance. This bill would seek to eliminate regulatory impact analysis, including a cost/benefit analysis, when creating new occupational safety and health standards and regulations.

The Authority will continue to monitor these bills and others as needed.

If you have any questions, please contact Abraham Han, Administrative Analyst.


Legislative Update

2018 Brings Restrictions on Public Employers’ Inquiries Regarding Salary History and Conviction History

By Katy A. Suttorp and Kelly A. Trainer, Burke, Williams, and Sorensen, LLP

Planning to hire in 2018?  California public sector employers need to understand new legal restrictions on lawful consideration of applicants’ conviction history and prior salary as of January 1, 2018.

In the past couple of weeks, Governor Brown has signed two pieces of legislation, that involve striking changes to the types of information employers may seek from applicants in the hiring process and when, or even if, certain information may be requested or considered.  Following is an overview of both bills and recommended steps for employers to consider before starting a hiring process on or after January 1, 2018.

ASSEMBLY BILL 1008 - REQUESTS FOR OR CONSIDERATION OF APPLICANTS’ CONVICTION HISTORY

AB 1008 requires particular attention by public employers because it rescinds existing “ban the box” legislation (Labor Code Section 432.9) [1]  and imposes new standards for all public and private employers with 5 or more employees (“Employers.”)   Specifically, AB 1008 adds new Government Code Section 12952 to the California Fair Employment and Housing Act (the “FEHA”), which contains the following requirements for any positions (except those identified below as expressly excluded):

  • Until an applicant for hire or promotion receives a conditional offer of employment,[2] the Employer cannot:
    • Include on any application a question that seeks disclosure of the applicant’s conviction history;
    • Inquire orally or in writing about the applicant’s conviction history; or
    • Consider any information obtained in any manner about an applicant’s conviction history.
  • If an Employer obtains conviction history for an applicant following issuance of a conditional offer of employment, then the Employer cannot deny employment on that basis without first performing an individualized assessment, which  must take into account the following factors:
    • The nature and gravity of the offense or conduct;
    • The time that has passed since the offense or conduct and completion of the sentence; and
    • The nature of the job held or sought.
  • A statement that if the applicant notifies the employer in writing, before the fifth business day, that the applicant disputes the accuracy of the conviction history and that the applicant is “taking specific steps to obtain evidence supporting that assertion,” then the applicant may have a total of at least 10 business days to respond.  The 10 business days includes the original five days.

     

  • The Employer must then make a preliminary determination based on the results of the individualized assessment. If that preliminary determination is to disqualify the application based on conviction history, the Employer must notify the applicant in writing of its intent to disqualify and include, at minimum:
    •  Notice of the conviction(s) forming the basis for the intended disqualification;
    • A copy of the conviction history report, if any; and
    • A statement that the applicant has a right to respond within five business days (or more) to present evidence to:
      • Challenge the accuracy of the conviction history information or report; and/or
      • Provide evidence of mitigating circumstances
  • The Employer must consider any information provided by the applicant before making a final decision on disqualification.  If the final decision is to disqualify the applicant solely or in part based on conviction history, the Employer must provide written notice, which must include:
    • Information about the Employer’s internal appeal procedures, if any; and
    • An explanation of the applicant’s right to file a complaint with the California Department of Fair Employment and Housing.
    Of particular importance, we note that the requirement that Employer refrain from requesting conviction history information until after issuance of a conditional offer of employment is the same standard that currently applies under the FEHA and the federal Americans with Disabilities Act to employer requests for medical examinations, which requires that such a request be the last step in a hiring process.  The statute does not address whether its provisions affect the existing timing for requesting medical examinations. 

     

    The following positions are excluded from the above requirements:

  • Positions in criminal justice agencies
  • Positions as farm labor contractors;
  • Any position for which an Employer, or agent of an Employer, is required by any state, federal, or local law to conduct criminal background checks for employment purposes or to restrict employment based on conviction history.

     

    Recommended Steps Prior to January 1, 2018

  • Employers should review all positions carefully to determine which qualify for exclusion from the new law.
  • Employers should review all application, interview, or other hiring materials carefully to remove any questions for non-excluded positions that require information regarding conviction history.
  • Employers should ensure that recruitment practices for non-excluded positions no longer include requests for conviction history information after screening for minimum qualifications.  
  • Employers should ensure that any requests for conviction history for non-excluded positions are delayed until after issuance of a conditional offer of employment.
  • Employers who require medical examinations of applicants as well as conviction history should ensure that both requests are made only after issuance of a conditional offer of employment.
  • Employers should consider implementing or revising procedures for conducting individualized assessments and issuing initial and final determinations, as well as determining timeframes for applicants’ response to initial determinations.
  • Employers should monitor FEHC revisions to existing regulations regarding conviction history to determine the extent to which those provisions will remain in effect after January 1, 2018.
  • In taking some or all of these steps, Employers should determine whether additional obligations may apply under applicable labor relations laws.
  •  

    ASSEMBLY BILL 168 -  CONSIDERATION OF APPLICANTS’ PRIOR COMPENSATION AND BENEFITS

    AB 168 reflects a continuation of the recent efforts by California to address statistics showing gender-, race-, and ethnicity-based pay disparities among employees.  Since January 1, 2017, Labor Section 1197.5 has expressly prevented private employers from justifying sex-, race-, or ethnicity-based pay disparities based solely on prior salary.  As of January 1, 2018, these provisions will also apply to public employers .[3] 

    With AB 168, California goes a step further by adding Section 432.3 to the Labor Code, that significantly limits the circumstances in which an applicant’s “salary history information (including compensation and benefits) can even be considered lawfully by employers (including state and local government employers and the Legislature).  These requirements will apply regardless of an employer’s size.

    The new law does recognize that some salary history for applicants is available through information disclosable to the public under laws such as the California Public Records Act and the federal Freedom of Information Act and permits that  information to  be considered.  In addition, the law permits applicants to choose on their own to provide prior salary history information to prospective employers, as long as that choice is truly voluntary.

    Outside of these limited exceptions, starting January 1, 2018, employers will be subject to the following express restrictions:

    • Employers cannot rely on an applicant’s salary history in determining whether to offer a position to that applicant.
    • Employers cannot rely on an applicant’s salary history in determining what salary to offer to an applicant, unless the applicant has provided that information voluntarily and without prompting.
    • Employers cannot request salary history information from an applicant in any written or oral form.
    • Employers cannot use third parties to seek or request salary history information that they are prohibited from seeking or requesting directly from applicants.

    Further, employers must provide the “pay scale” for a position to an applicant “upon reasonable request.” 

     Recommended Steps Prior to January 1, 2018

    • Employers should review all application, interview, and other hiring materials carefully to remove any questions requiring an applicant to disclose salary history, whether orally or in writing. 
      • Employers may wish to revise these materials to advise that salary history information may be obtained where it is publicly disclosable under state and federal law such as the California Public Records Act and the federal Freedom of Information Act.
    • Employers should determine how they will comply with the requirement of providing the pay scale for a position to an applicant “upon reasonable request.”  Most public agencies should already have publicly available pay scales that are published on their websites as part of the agency’s compliance with CalPERS’ requirements.  For public agencies who are not subject to those requirements, some possible issues for consideration include:
      • Whether an established pay scale exists for each open position, and if not whether to establish one prior to an applicant’s request.   
      • Whether to provide established pay scales as part of a job announcement or only upon an applicant’s request. 
    • In taking some or all of these steps, employers should determine whether additional obligations may apply under applicable labor relations laws.

    [1]The new law also appears to conflict with regulations issued by the Fair Employment and Housing Commission (the “FEHC”) in July 2017.  We note that the FEHC has included “discussion of chaptered legislation” on the agenda for its October 30, 2017 meeting.  Accordingly, clarification of the intended inter-relationship between Section 12952 and the existing FEHC regulations may be forthcoming.
    [2]Although public employers were already subject to restrictions in their consideration of applicants’ conviction history, the timing requirements will change significantly.  Under the law currently in effect, public employers need only wait until an applicant has been screened for compliance with minimum qualifications, a relatively early stage.  As of January 1, 2018, public employers must wait until after issuance of a conditional offer, which typically occurs later in the hiring process.  
    [3] See Assembly Bill 46, which adds sub-section (e) to Section 1197.5 to specify that the term “employer” used in that section “includes private and public employers.”  This amendment appears to apply regardless of employer size.


    Legislative Update

    Governor Jerry Brown Vetoes Bill Easing Permits on Cell Phone Towers

    (Reprinted from the Mercury News, October 16, 2017)

    On October 14, Governor Jerry Brown vetoed a bill backed by the cell phone industry that would have made it easier to install microwave radiation antennas.

    Senate Bill 649, authored by Sen. Ben Hueso, D-San Diego and co-authored by Assemblyman Bill Quirk, D-Hayward, proposed to scale back the permitting process for antennas and other equipment in an effort to meet demand for wireless services.

    In a signing statement, Brown wrote that while he saw the value in “extending this ​innovative technology rapidly and efficiently,” the bill took too much control away from cities and counties.

    The bill was primarily supported by the Cellular Telecommunications and Internet Association, the main trade group for the U.S. wireless telecommunications industry. The group said SB 649 would help boost the economy.

    Yet the bill had alarmed many local government officials around the state. They worried if SB 649 became law, it would cap how much they could charge phone companies for leases to $250 a year. Others raised concerns about the risk to public health from cell towers.

    Grass-roots activists and scientists said that if SB 649 became law, a projected 50,000 new cellular antennas would be installed on public buildings and utility poles in California neighborhoods, creating a risk to public health because of the dangers of radiation and electromagnetic frequencies emitted by cell towers.

    “I am thrilled that Governor Brown showed strength and stood up to this powerful wireless industry and said no — you are not going to do this in my state!” Ellen Marks, a San Francisco-based leader of the California Alliance for Safer Technology, wrote in an email after Brown’s decision was posted online.

    “This is a tremendous victory for democracy,” said Marks, whose group is trying to keep cellular antennas away from homes, schools, offices and parks.

    An industry spokeswoman said the bill maintained local authority for “small cell” antennas, particularly in historical or coastal areas, and that governments could recover capital and administrative costs.

    San Jose Mayor Sam Liccardo was among several Bay Area leaders who voiced their opposition to the bill.

    Quirk and Hueso called the health concerns overblown, saying the cell towers are safe.

    Joel Moskowitz, director of the Center for Family and Community Health at UC Berkeley’s School of Public Health, was heartened by Brown’s veto, coming on the heels of a federal appeals court ruling last week that supports Berkeley’s landmark cell phone “right to know” ordinance.

    The city law, which took effect in 2016, requires retailers to warn cellphone customers that wearing their device next to the body could result in exposure to radio frequency radiation exceeding federal guidelines. Cellphone retailers must either post the message or provide a paper copy to anyone who buys or leases phones.

    “The Governor’s veto of SB 649 protects Californians from exposure to millimeter radiation from as many as 50,000 new cell towers,” Moskowitz wrote in an email Sunday night.

    He noted that more than 180 scientists and doctors have signed a declaration calling for a moratorium on the increase of cell antennas required for 5G deployment, “as we are concerned about the health effects including neurological impacts, infertility, and cancer.”


    Risk Solutions

    New Resource Available: Proposition 64 White Paper

    By Abraham Han, Administrative Analyst

    The Authority has recently made available to members a white paper on Proposition 64, also known as the “Control, Regulate and Tax Adult Use of Marijuana Act” (the “AUMA”).

    The white paper provides an overview of the new law, measures local agencies can take to control the distribution and cultivation of marijuana, and consumption of marijuana in the workplace.

    Members are encouraged to review the white paper for the consideration and adoption of best practices.

    This white paper is available electronically to members via the Authority’s website. The document is located in the “White Papers” dropdown section within the “Resources and Documents” section of the Authority’s website.

    For questions about this resource, members can contact their regional Risk Manager.


    Risk Solutions

    Occupational Safety and Health Administration (OSHA) Top 10 Violations 

    The Occupational Safety and Health Administration (OSHA) recently released the top ten violations for fiscal year 2017, which ended September 30.  Generally, this list does not change much from year to year with the top three violations always being fall protection, hazard communication and scaffolding. OSHA noted that not all violations had been added to its reporting system but that the list was not expected to change.

    The top 10 OSHA standards allegedly violated during FY 2017 are:

    1. Fall Protection (Construction – 29 CFR 1926.501).  Total of 6,072 violations with frequently violated requirements including failure to provide fall protection for unprotected edges and open sides in residential construction and failure to provide fall protection on low-slope roofs.

       

    2. Hazard Communication (29 CFR 1910.1200) Total of 4,176 violations with frequently violated requirements for failure to have a written hazard communication program and failure to provide employee access to safety data sheets.

       

    3. Scaffolding (29 CFR 1926.451) Total of 3,288 violations with the most frequent violations including improper access to surfaces and lack of guardrails.

       

    4. Respiratory Protection (29 CFR 1910.134) Total of 3,097 violations with the most frequent violations for failure to establish a written respiratory protection program and failure to provide medical evaluations.

       

    5. Lockout/Tagout (29 CFR 1910.147) Total of 2,877 violations with the most frequent violations for employee training and failure to conduct periodic inspections.

       

    6. Ladders (Construction – 29 CFR 1926.1053) Total of 2,241 violations with frequent violations including improper use of ladders, damaged ladders, and using the top step.

       

    7. Powered Industrial Trucks (29 CFR 1910.178) Total of 2,162 violations including employee training and refresher training.

       

    8. Machine Guarding (29 CFR 1910.212) Total of 1,933 violations with the most frequent for failure to guard points of operation.

       

    9. Fall Protection—Training (Construction – 29 CFR 1926.503) Total of 1,523 violations with the most frequent for failure to train employees in identifying fall hazards and proper use of fall protection equipment.

       

    10. Electrical (29 CFR 1910.305) Total of 1,405 violations including temporary wiring in lieu of permanent wiring.

    Cal/OSHA has a number of regulations which require training on workplace safety and health.  The specific Cal/OSHA training requirements that apply to the workplace depend on the types of work activities employees are actually performing. 

    The Authority offers a wide range of safety-related training sessions that are free to members.  Following is partial listing:  

    • Fall Protection Awareness
    • Hazard Communication
    • OSHA Construction: Scaffolding Safety
    • Respiratory Protection and Safety
    • Lockout, Tagout, Basic Electrical Safety
    • Ladder Safety
    • Forklift Operator Training

    Additionally, the topic for the Authority’s November Risk Managers Roundtable is Dealing with Cal/OSHA.  The Roundtables will be presented by Dick Monod de Froideville.  Monod de Froideville is retired from the Enforcement & Consultation Unit of the California Division of Occupational Safety & Health (Cal/OSHA) and an Adjunct Instructor for the OSHA Training Institute, Chabot-Las Positas Community College District.

    Participants attending the Roundtable will learn what Cal/OSHA is looking for during inspections and audits; how to best handle when an inspector unexpectedly appears; the process of filing an appeal and the components of successful appeals; and completing and posting your OSHA 300 Log.

    The Roundtables will be offered at the following locations (lunch will be provided):

    • 12:00 P.M. - 2:00 P.M., Tuesday, November 7, 2017

      California JPIA, California Room, 8081 Moody Street, La Palma

    • 12:00 P.M. - 2:00 P.M., Tuesday, November 14, 2017

      City of La Quinta, City Hall - Council Chambers, 79-495 Calle Tampico, La Quinta

    • 12:00 P.M. - 2:00 P.M., Wednesday, November 15, 2017

      City of San Luis Obispo, City Hall - Council Hearing Room, 900 Palm Street, San Luis Obispo

    To register for one of the Risk Managers Roundtable sessions, go to http://cjpia.org and log into myJPIA.


    Coverage Matters

    Property Program Renewal and C.O.P.E. Data

    by Jim Thyden, Insurance Programs Manager

    Property Program

    The California JPIA’s insured programs provide members with access to coverage for property, earthquake, mechanical breakdown, vehicle physical damage, pollution and remediation legal liability, crime, special events, and vendors/contractors.  A third-party administrator is used to investigate and manage property claims.

    The property program includes all-risk coverage for real and personal property, including buildings, office furniture and equipment, fine art, contractor’s equipment, mobile and unlicensed equipment, vehicles, property of others while in the member's care, and buildings under construction.

    Members participating in the property program are asked to keep their property schedules current and accurate.  Since property schedules determine premiums for the program, updates should include adding or deleting buildings, equipment, and vehicles acquired/sold since the schedule was last updated.  With that understanding, the Authority is asking members to update their property schedules by December 14, 2017 in preparation for the Property Program renewal on July 1, 2018.

    AlliantConnect

    There are several steps involved in the renewal process so that the best results can be achieved for each member.  The first step is obtaining accurate exposure information on property to be covered.  This data has been contained in the “Oasys” database for many years with the Authority’s property coverage broker, Alliant Insurance Services.  Recently, Alliant has transitioned to a new database and user interface called “AlliantConnect.”  Property Schedules are now being maintained in the new AlliantConnect system, while vehicle schedules will remain in the Oasys database.

    Members can access their agency’s property schedules here and vehicle schedules here.

    Property premiums are determined by the value and type of property being covered, as well as loss history.  Essential underwriting information such as construction type, occupancy type, year built, square footage, etc., should be included on every location and every vehicle that is intended to be covered.  It is important to complete all the information requested for scheduled items because incomplete information may result in less favorable pricing.  

    Jasmine Say, Account Manager with Alliant, will be working to gather this data from members to complete the property schedules in a timely manner.  Jasmine can be reached at Jasmine.Say@alliant.com or (949) 527-9896.

    If your agency participates in the Authority’s pollution program, property schedules are also used as the primary document to capture information needed for that program as well.  By updating your schedule, you are completing two necessary administrative tasks at once.

    C.O.P.E.

    The Authority has implemented cost allocation changes to the property program over the past few years to make the rating process as equitable as possible amongst the membership based upon exposure characteristics of scheduled items and the loss history that each member brings to the program.  As such, it is in the best interest of each member to provide the most accurate information possible, as a lack of critical information may result in less favorable treatment in the rating process. 

    During a session at the Authority’s Annual Risk Management Educational Forum, the use of C.O.P.E. data was discussed by the Authority’s reinsurance partner, XL Catlin.  C.O.P.E stands for:

    • Construction – What it is made of?
    • Occupancy – What it is used for?
    • Protection – How is it protected? (Fire Alarms, etc.)
    • Exposure – Proximity to Natural or other Hazards? Proximity to Fire Station?

    This data is important because it significantly impacts premium calculations.  Over the past few years, as losses have trended upward, the quality of the C.O.P.E. data submitted to underwriters has become even more important.  From an underwriting perspective, the goal is to properly assess a location’s risk and determine the level of exposure associated with that location. 

    It is also important to note, that the same construction type of a building can have a drastically different impact based on the type of coverage that is being underwritten.  For example, while a wood frame building may have a higher risk rating factor for “All-Risk” (e.g. fire) perils, the very same building would have a more favorable rating factor for earthquake.  The reason being that wood bends and sways during an earthquake but in a fire, it burns faster than concrete. Understanding C.O.P.E. and what it means to the underwriting process will help members better insure their property locations and improve accuracy in premium calculations.

    Resources

    While the AlliantConnect system is designed to be easy to use, group or individual training sessions can be arranged with Alliant.  Members may contact Joe Sanders, Senior Business Analyst with Alliant, to schedule AlliantConnect training. 

    If you have any questions or need assistance, please contact Jim Thyden, Insurance Programs Manager.