June 2018 - Issue 76

The Amazing Race to Risk Management Success

Workers’ Compensation Waiver of Subrogation

10th Annual Workers’ Compensation Symposium

Join Social Media Conversations with the Authority

The Click2Gov Issue Affecting Municipal Websites Explained

Baby Diaper Changing Stations (AB 1127)

California Lawmakers Move to Make Police Misconduct Records More Public

News: Worthy

The Amazing Race to Risk Management Success

 Reaching the finish line is only one part of a successful race. Those who finish the race aren't winners simply because they reached their goal, but also because they learned the path and planned for pitfalls. 

Registration continues for the 23rd Annual Risk Management Educational Forum, to be01a RMEF 2018 newsletter logo held in Carlsbad at Park Hyatt Aviara, from September 19-21, 2018, and we're bringing the best to be on your team.  In this race, you'll learn about many risks you may face on your way to the finish line.  There will be experts to help you overcome fear of disaster, cast aside threats from those attempting harm, and remove doubts as to whether your resources will last. ​

Keynote speaker and "Artist for the People," Phil Hansen, overcame a tremor in his01a RMEF Phil Hansen drawing hand to create art in new ways. His clients have raved that, "Phil's message of self-reinvention and the power of transforming adversity into opportunity is one that translates well across audiences-regardless of the industry."  Phil's ability to draw parallels to the business setting has won him followers among industry, business, and public-sector leaders.  Phil's approach to achieving artistic success is not only a natural fit for The Amazing Race to Risk Management Success but also a necessity for how to adapt to the accelerating pace of change.

Our race coaches for two and one-half days include attorneys, management experts, claim experts, city managers, and others who will present sessions such as The Homeless Dilemma, Why Injured Employees Hire an Attorney, Site Security, Decision Making for Elected Officials, and more.  The goal is to equip you with the tools necessary to avoid many current dangers you face when running the race.

Registration is limited to public agency officials and employees, and the Authority’s business partners.  There is no registration fee for California JPIA members, however non-members are charged  $475.  Lodging is not included in your Forum registration and must be arranged separately.  The Authority's room block is nearly sold out, so make your hotel reservations now.

For information or to register, click here

For questions, email us at forum@cjpia.org.


News: Worthy

Workers’ Compensation Waiver of Subrogation

By Alex Mellor, Risk Manager

It is common knowledge that all California employers, regardless of number of employees, are required to maintain coverage for payment of statutory workers’ compensation benefits.  Requiring and verifying this coverage is an important element of effectively transferring risk to vendors and contractors with whom your agency does business.

However, did you know that in certain circumstances, the vendor/contractor’s workers’ compensation insurer may seek reimbursement from your agency for the cost of those benefits? This action is known as “subrogation” and can result in a nasty shock for your agency if overlooked.

Let’s consider an example. Your public works director is driving from one site to another to inspect work being performed by multiple contractors. While entering the job site, the director receives an important text message from the city manager.  Rather than waiting until she is parked to read the message, the public works director looks down at her phone and strikes a contractor’s employee. The employee is seriously injured and transported to hospital. The contractor’s workers’ compensation insurer provides benefits including expensive medical treatment to the injured employee, but also conducts a thorough investigation to uncover the cause of the accident. The investigation reveals that your public works director was negligent in operation of her vehicle, and clearly caused the injuries to the contractor’s employee. The insurer then sends your agency a bill for the cost of workers’ compensation benefits.

Thankfully, there are steps your agency can take to eliminate this exposure.  The most common method is to require a provision in your contract with the vendor/contractor that they waive their subrogation (WOS) right in favor of your agency. This approach is effective for waiving the vendor/contractor’s own right of subrogation. However, since standard workers’ compensation policy forms prohibit waiving the insurer’s subrogation right prior to a loss, the policy must be endorsed. As such, obtaining a waiver of subrogation (WOS) endorsement from the insurer is also needed.

While this might seem fairly straightforward, the matter is complicated by the fact that obtaining a workers’ compensation WOS typically requires payment of additional premium to the insurer. This additional cost is typically 2 to 3% of premium based upon payroll allocated to the project. As you can imagine, vendors/contractors typically seek to pass this cost onto their clients.

Given this reality, your agency should decide when to require workers’ compensation WOS endorsements, as there is greater justification in doing so where there is a real exposure that your agency may cause or contribute to a vendor/contractor’s employee being injured. For example, if a vendor/contractor will be working on your property or working alongside your agency’s employees at another location, a WOS is valuable and worth the extra expense. However, if all work will be performed at the vendor/contractor’s own location, and there will be little to no interaction with your agency’s staff, a WOS is likely of little benefit to your agency and therefore is not needed.

Regardless of the approach taken, the California JPIA recommends analyzing workers’ compensation subrogation exposure as part of each project-specific risk analysis. Doing so will ensure that waivers of subrogation are obtained where a real exposure exists, and the associated expense avoided where requiring such an endorsement has little benefit for your agency.

For additional information, please consult the California JPIA Contractual Risk Transfer Manual, or contact your assigned regional Risk Manager.


News: Worthy

10th Annual Workers’ Compensation Symposium

The California JPIA is pleased to announce the program for the 10th Annual Workers’ Compensation Symposium, which will take place on Thursday, August 16, on the Authority’s La Palma campus. The day will provide an opportunity for members to meet with the York claims team, the Authority’s panel attorneys, and to learn more about workers’ compensation subject areas.

The Symposium begins at 9:30 a.m. and concludes at 2:00 p.m. Lunch will be served. 
The program will feature the following presentations:

9:30 a.m.

Introduction

9:45 – 10:30 a.m.

Disability Retirement: Requirements and Employer Responsibilities
Catalina Jimenez, CalPERS

10:30 – 11:00 a.m.

2018 Legislative Update
Jeff Rush, California JPIA

11:00 – 12:00 p.m.

Causation of Injuries-An Introduction
Dr. Mark Hyman

12:00 – 12:45 p.m.

Lunch

12:45 – 1:15 p.m.

Successful Return to Work Programs
Cole Smith, Norm Peterson & Associates

1:15 – 2:00 p.m.

Resolving Claims with Difficult Employees
Steve Siegel-Siegel, Moreno & Stettler; Giovanni Valencia-Hayford, Felchlin, Valencia & McWhorter; Cliff Weinberg-Ingber & Weinberg

To register for the Symposium, please click here.

For registration questions, contact:
Michelle Aguayo, Training Coordinator
(562) 467-8777

For event questions, contact:
Jeff Rush, Workers' Compensation Program Manager
(562) 467-8707 


News: Worthy

Join Social Media Conversations with the Authority        

In order to reach new members and better connect with current members, the Authority has an active presence on social media. Members can find information on various topics on the social media channels listed below.Social Media Logo

Connect with our latest topics:  

Facebook 
“Members: We are thrilled to have multimedia artist Phil Hansen as the Keynote Speaker at the Authority's 23rd Annual Risk Management Educational Forum, ‘The Amazing Race to Risk Management Success.’ Phil is known for his unique approach to art and creativity, and believing that art is action, not just result: You don't want to miss this! For more information on the Forum, visit: https://www.cjpia.org/risk-management/educational-forum” Like, comment and share on the Authority’s Facebook page.

LinkedIn Page
“The heat of #Summer is fast approaching. To help beat the heat, agencies can provide access to ‘cool zones,’ where residents can rest, get safety from the heat, and share in communal air conditioning. The City of Claremont has several of these zones. Click to learn about Claremont's cool zones for inspiration for your own agency: https://lnkd.in/gvRyX6R #NationalSafetyMonth” Follow us, comment and share about risk management on the Authority’s LinkedIn page.

Twitter
“Registration for the 2018 Annual Board of Directors meeting, to be held on Wednesday, July 18, is now open. Note that the deadline to register is July 11. To learn more or to register, click here: https://tinyurl.com/yd7rdree” Tweet, retweet and follow the California JPIA on Twitter.

For information on how to join these sites or participate in discussions, please contact Courtney Morrison, Administrative Analyst.


News: Worthy

The Click2Gov Issue Affecting Municipal Websites Explained

By Erich Falke

(Reprinted from ePlace Solutions, Inc. website blog, June 25, 2018, with the permission of Brit Global Specialty USA, an Authority business partner)

Over the past year, over 10 US cities running billing vendor Superion’s Click2Gov software have alerted citizens to a data breach. Cities from California (Oxnard and Oceanside), Texas, Arizona and Wisconsin have been affected, and customers using these cities’ online payment applications may have had their payment card information exposed.

Further investigation by Superion has shown the attackers didn’t break in through Click2Gov but through third-party software needed to use Click2Gov: Oracle’s WebLogic application server. In other words, the path used by hackers to access the municipalities’ environment was Oracle’s WebLogic application server and not Superion’s Click2Gov software.

Importantly, only those entities running a local client of Click2Gov have been affected. Those running the cloud version of Click2Gov do not appear vulnerable to this attack vector.

The good news is that the WebLogic vulnerability has been patched. Consequently, if you are running a local version of Click2Gov with Oracle’s WebLogic application, make sure that both pieces of software are updated with the latest patches.

If your organization is a Superion customer using Click2Gov, remain vigilant for suspicious activity even after you’ve patched both pieces of software. If you have questions about this issue, we recommend reaching out directly to Superion for information.

Key Takeaway

Software updates or patches are critical for keeping your computing environment safe because the updates or patches include security fixes for bugs that hackers can use to access your environment.  Make sure your organization has a patch management policy and program! Also, consider building a separate test environment to test patches before implementing enterprise-wide to avoid any potential disruptions.


Legislative Update

Baby Diaper Changing Stations (AB 1127)

By Maria Galvan, Risk Manager

Recently, the Authority received an inquiry on Assembly Bill 1127, which was signed into law by Governor Jerry Brown in October 2017.  Prior to AB 1127, no state laws mandated that publicly owned state and local buildings, or private businesses maintain diaper changing stations in restrooms.

AB 1127 has added Sections 15805 and 50535 to the Government Code, and Section 118506 to the Health and Safety Code. Government Code §15805 applies to the state, while Government Code § 50535 applies to local agencies:

§ 50535. 

(a) (1) A public building that is owned by a local agency, or a portion of a building that is owned by a local agency and includes at least one restroom that is open to the public, shall provide at least one safe, sanitary, convenient, and publicly accessible baby diaper changing station that is accessible to women entering a restroom provided for use by women and at least one safe, sanitary, convenient, and publicly accessible baby diaper changing station that is accessible to men entering a restroom provided for use by men, or at least one safe, sanitary, convenient, and publicly accessible baby diaper changing station that is accessible to both men and women.

(2) Each station shall include signage at or near the entrance to the station indicating the location of the baby diaper changing station. If there is a central directory identifying, for the benefit of the public, the location of offices, restrooms, and other facilities in the building, that central directory shall indicate the location of the baby diaper changing stations. Each baby diaper changing station shall be maintained, repaired, and replaced as necessary to ensure safety and ease of use, and shall be cleaned with the same frequency as the restroom in which it is located.

(b) (1) Subdivision (a) applies to all new construction and, except as otherwise provided in paragraph (2), to all renovations of bathrooms, for which a permit has been obtained, in which the estimated cost of the new construction or renovation is ten thousand dollars ($10,000) or more.

(2) Subdivision (a) does not apply to a renovation if a local building permitting entity or building inspector determines that the installation of a baby diaper changing station is not feasible or would result in a failure to comply with applicable building standards governing the right of access for persons with disabilities. The permitting entity or building inspector may grant an exemption from the requirements of this section under those circumstances.

Members are advised to factor in the requirement of baby diaper changing stations when budgeting for new construction and restroom renovation projects. If you have questions, please contact your assigned Risk Manager.


Legislative Update

California Lawmakers Move to Make Police Misconduct Records More Public

(Reprinted from the Desert News, June 18, 2018)

California law generally prevents information about investigations into police officer misconduct from being released to the public, but a bill making its way through the state legislature could open records related to serious crimes committed by officers.

State Sen. Nancy Skinner, D-Berkeley, who drafted the legislation, Senate Bill 1421, said California’s restrictions do not serve the best interest of the public. Sen. Skinner wants to provide the public with the ability to request information regarding officer misconduct investigations, except for personal details like names of family members and home address. While similar bills have been proposed in the past, SB 1421 has come closest to becoming law.

SB 1421 will unseal internal investigation records related to when officers use weapons on people, commit sexual assault or lie in police reports. The bill will require the records to be unsealed 18 months after the incident. Currently, a court order is required for the public to see them at all.

In 2006, the California Supreme Court ruled in the Copley Press v. County of San Diego case that misconduct investigations are confidential, laying the groundwork for the current approach to withholding records.

"California is an outlier when it comes to providing public access to law enforcement records," Skinner wrote in a press release. "SB 1421 is a sunshine ordinance that will help build trust and accountability."

Theresa Smith, who founded Law Enforcement Accountability Network after the death of her son, supports SB 1421.

"On December 11, 2009, my son was killed by the Anaheim Police Department. All I knew was that it was a homicide by five police officers. That’s all I was allowed to know," Smith said.

"This bill is important because it took me over a year and a half before I knew what officer was responsible for the death of my son. It’s important to me to have the right to know. It’s part of the grieving process; it’s part of our healing. We’re not asking for personal information. And we’re not looking to retaliate," Smith said.

Advocates for increased disclosure argue opening police misconduct investigations to the public would increase trust between the police and the community. Currently, these investigations are sealed.

"Investigations of use of deadly force are conducted by internal affairs," said Merrick Bobb, co-executive director of the Police Assessment Resource Center. "The records that result from these investigations are not open to the public, according to current state law. They are considered part of an officer’s personnel file and those are not available. In order to get access to these records you ultimately need a court order."

Sen. Skinner, in testimony before the Senate Public Safety Committee, explained what sets SB 1421 apart from previous bills that have also sought to increase public transparency into officer misconduct investigations.

"1421 is narrow. It is far narrower than bills that have been on this subject in the past," Skinner said. "And it would only allow records to be publicly accessible related to law enforcement’s discharge of a firearm, the use of serious or deadly force, completed investigation of verified on the job incident of sexual assault, and completed investigation of verified job-related dishonesty."

Skinner worked with police unions to fine-tune the bill, in order to try to gain their support, but once the bill passed out of the senate on May 30, some law enforcement unions were still undecided.

The Riverside Sheriff’s Association, a union with nearly 3,000 members among the sheriff’s department and district attorney’s office in Riverside County, has spent money lobbying on SB 1421.

"We are working with the author’s office to ensure officer safety is protected while improving transparency for the public," said Ian Anderson, the union’s vice president.

Shaun Rundle, deputy director of the California Peace Officers Association, said his organization is also undecided about the bill.

"We’re concerned groups would use this as an opportunity to sue cops for perceived misconduct," Rundle said. "Public distrust is high, yes. But as much as we want to build and sustain relationships, we’re not convinced this is the way to do it. We are in the process of reviewing the latest amendments."

The California State Sheriffs’ Association, a union representing the 58 sheriffs elected in the state, is opposed to the bill.

"We have concerns about releasing information generally," said Cory Salzillo, legislative director for CSSA. "Officers are put in dangerous situations, they have been entitled to privacy. It is not entirely clear that having access to the records would solve some perceived problem."

Jeff Stone, the Coachella Valley’s state senator, voted against SB 1421 as it moved through the senate.

"Unlike any other profession, peace officer’s duties include using physical force against others and engaging in daily confrontations with criminals," Stone said in testimony. "Generally, public employees accused of misconduct are entitled to closed hearings and employee’s personal records are presumed to be confidential and require a judicial weighing of the public interest before they are released."

Stone said giving the public more information than what the law allows now could lead to dangerous new situations for police officers.

"This bill would provide unwarranted new exceptions to this privacy … ultimately only lead to unnecessary accusations – attacks – potentially on police officers and a general degradation of law enforcement response to criminal activity."

But the dozens of witnesses who offered testimony in support of the bill and the advocacy groups that have supported SB 1421 say they want the same transparency available in other states.

"As the public, we can’t tell how thoroughly they investigated it," Lizzie Buchen, a legislative advocate for the ACLU said. "In most states, citizens enjoy these rights. We’re asking for basic public transparency for the most serious uses of police power."

For those who have lost loved ones, like Theresa Smith, the bill would honor those they have lost, she said.

"We’re just mothers who have lost a child," Smith said. "And that’s all we’re asking for is for them to be held accountable. I do this work because I love my son."

The bill is scheduled for a hearing in the California Assembly’s Committee on Public Safety June 26.