July 2018 - Issue 77

Annual Board of Directors Meeting

Celebrating Shared Success: 2018 Risk Management Awards

Risk Management Educational Forum: 2018 Capstone Award Finalists Selected

The Amazing Race to Risk Management Success

Newly Elected Officials Academy

If You Travel on Foot, Your Safety Risk Is Increasing, New Findings Show

Victory “Going and Coming"

District Failed to Reasonably Accommodate Probationary Employee, Or Engage in Interactive Process, When it Granted Her Medical Leave and Terminated Her While on Medical Leave

News: Worthy

Annual Board of Directors Meeting

The Annual Board of Directors Meeting was held in La Palma on July 18, 2018 with a quorum of delegates in attendance, representing 73 member agencies.

Curtis Morris, President of the Executive Committee welcomed delegates and shared a brief overview of the Authority’s accomplishments and endeavors.

The Board of Directors unanimously elected Margaret Finlay as Vice President of the Executive Committee. Tom Chavez, City of Temple City; Daryl Hofmeyer, City of Paramount; Mary Ann Reiss, City of Pismo Beach; and Mark Waronek, City of Lomita, were elected as members of the Executive Committee, each serving a two-year term. 

President Morris presented Risk Management Awards to members that demonstrated01a BOD EC superior risk management programs as shown by their cost of claims in both the primary liability and workers’ compensation programs.

Chief Executive Officer, Jon Shull, presented the strategic plan, operational overview, and current initiatives of the Authority, with emphasis on continued commitment to the foundational principals of integrity, excellence, innovation, and teamwork. 

The meeting was adjourned to July 17, 2019.

Photo:  Front row from left to right:  Lori Donchak, San Clemente; Secretary Mary Ann Reiss, Pismo Beach; President Curtis Morris, San Dimas; Vice-President Margaret Finlay, Duarte; Darcy McNaboe, Grand Terrace.

Back row from left to right: Daryl Hofmeyer, Paramount; Sonny Santa Ines, Bellflower; Tom Chavez, Temple City; Mark Waronek, Lomita.

News: Worthy

Celebrating Shared Success: 2018 Risk Management Awards

This year the California JPIA recognized six of its members for their achievements in risk management. The Authority’s Risk Management Awards Program celebrates the members’ risk management successes while it highlights an important point: as a risk pooling organization, the success of each individual member’s risk management efforts benefits all members. The significant improvements in risk management that these members made came as a result of dedicated efforts, sometimes against difficulty or tight budgets. 

Winners of the 2018 awards were recognized at the Annual Board of Directors meeting held on July 18, 2018. Members were divided into groups for which awards were presented. For the Primary Liability Program, the groups were Non-Municipal Members, Members without Police exposure, and Members with Police exposure. For the Primary Workers’ Compensation Program, the groups were Non-Municipal Members, Members without Public Safety exposure, and Members with Public Safety exposure. 

“The Authority’s Risk Management Award is an important recognition of accomplishment for our members,” said Jonathan Shull, Chief Executive Officer of the California JPIA. “Not only does it recognize the risk management efforts of our winners, the award also serves to highlight the importance the California JPIA places on how good governance and effective management can benefit all Authority members.”

These awards recognize members that have demonstrated the best overall performance in each program. Authority staff evaluated both quantitative and qualitative factors that are reflective of a member’s risk management efforts. Factors included an agency’s five-year average cost of claims per $100 of payroll, its improvement in claims severity when comparing two, five-year coverage periods, its progress toward completing Loss Control Action Plan items, its Agency Exemplar rating, and its participation in Authority trainings and risk management events.

For the Primary Liability Program, the Best Overall Performance Award winners were:

For non-municipal agencies: Midpeninsula Regional Open Space District
For municipal agencies without police exposure: City of Bradbury (3rd year in a row)
For municipal agencies with police exposure: City of Signal Hill

02a RM Awards Liability

Left to Right: President, Curtis Morris; Lori Woods, City of Signal Hill; Scott Williams, City of Signal Hill; Jed Cyr, Midpeninsula Regional Open Space District; Paul Zeglovitch, Liability Program Manager.

For the Primary Workers’ Compensation Program, the Best Overall Performance Award winners were:

For non-municipal agencies: Coastal Animal Services Authority
For municipal agencies without public safety exposure: City of Rolling Hills Estates
For municipal agencies with public safety exposure: City of Poway

02b RM Awards WC

Left to Right: Jeff Rush, Workers’ Compensation Program Manager; Michael Whitehead, City of Rolling Hills Estates; Steve Zuckerman, City of Rolling Hills Estates; Kimberly Cholodenko, Coastal Animal Services Authority; Linda Shields, City of Poway; President, Curtis Morris.

News: Worthy

Risk Management Educational Forum: 2018 Capstone Award Finalists Selected

The 2018 Capstone Award finalists have been selected and will be recognized at the Authority’s 23rd 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 this year’s finalists:

  • Karina Bañales (Assistant to the City Manager / Human Resources, City of Palos Verdes Estates)
  • Teri Davis (Program Manager, City of Moorpark)
  • Sarah Siep (Deputy City Clerk, City of Big Bear Lake)
  • Brad Stewart (Facilities Maintenance Supervisor, City of San Dimas)

One of these finalists will be honored as the Capstone Award recipient during a ceremony at the Forum on Thursday, September 20.

News: Worthy

The Amazing Race to Risk Management Success

Every year, nearly 200 employees and public officials from more than 70 Authority members come together to gain insight, information, and guidance from experts and each other.  With this knowledge, they plan for pitfalls and create a winning path to risk01a RMEF 2018 newsletter logo management success for their agencies. As such, it is the premier risk management educational event for California public entities.

Come and join us at the starting line by registering for the 23rd Annual Risk Management Educational Forum to be held September 19 – 21, 2018, in Carlsbad at Park Hyatt Aviara.​

01a RMEF Phil HansenKeynote speaker and "Artist for the People," Phil Hansen, overcame a tremor in his 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.  Download the California JPIA Forum app from your device’s app store.

For questions, email us at forum@cjpia.org.  Registration closes August 22.

Photo: Phil Hansen

News: Worthy

Newly Elected Officials Academy

By Michelle Aguayo, Training Coordinator

The Authority held its Newly Elected Officials Academy in June at the Surf & Sand Resort in Laguna Beach.  Geared toward elected officials that are new to local government, the Academy was a valuable opportunity for those first seated between November 2016 and April 2018.   

Elected officials were provided an overview of the California JPIA along with educational sessions that covered the fundamentals of local government, the council/board member’s role, and reducing risk for elected officials and public agencies.  The sessions delved into the legal, financial, and governmental structure issues for public agencies, the elected official’s role in risk management issues including civil rights violations, street design defects, and lawsuits from personnel, and complex risk management issues such as eroding government immunities, lawsuits from personnel, and dealing with the media.  

Twenty-two elected officials representing 17 member agencies attended the two-day Academy.  “This is an incredible academy.  It should be a ‘must’ for every newly elected member.  Not only are the speakers interesting and dynamic, but the material supplied is a great reference.  It’s also a great way to develop contacts and network,” shared Kathy Flachmeier, council member, City of La Palma.  Manuel Acosta, council member, City of South El Monte, shared, “I’ve attended three conferences as a newly elected official, and this Academy was the best by far.” 

The Newly Elected Officials Academy is held annually with the next opportunity in June 2019. 

For questions regarding the academies offered by the California JPIA, please contact Michelle Aguayo, Training Coordinator.

Risk Solutions

If You Travel on Foot, Your Safety Risk Is Increasing, New Findings Show

(Reprinted from Forbes, May 13, 2018)

The following article re-print discusses a major exposure for California JPIA members; roadway incidents involving pedestrians. Whenever a vehicle hits a pedestrian, the local agency is often brought into the legal mix of potentially responsible parties, often through no direct fault of its own, because the responsible party is not sufficiently insured.  Potential defenses include establising design immunity, which is discussed in detail through one of the Authority’s white papers found on myJPIA – Resources and Documents. Contact your regional risk manager to discuss potential problem locations that have a history of complaints, accidents, or near misses.

Pedestrian crashes have become deadlier and more frequent. The spike has occurred mostly in urban or suburban areas, away from intersections on busy main roads designed mainly to funnel vehicle traffic toward freeways. The collisions, which often happen in the dark, are increasingly likely to involve SUVs and high-horsepower vehicles.

Those are the highlights of a new study “On Foot, At Risk,” that looks at the rising pedestrian death toll and ways to reduce it. Nearly 6,000 pedestrians were killed in crashes in 2016, the highest number since 1990 and a jump of 46 percent since reaching a low point in 2009, according to researchers, who examined crash and fatality trends using federal data.

The report, released last week by the Insurance Institute for Highway Safety, a nonprofit financed by the insurance industry, noted that while the March crash of an Uber vehicle that killed a woman in Tempe, Arizona was unusual, as it involved a self-driving vehicle, it was typical of current fatal pedestrian crashes: an SUV traveling on an urban arterial road struck a person crossing midblock in the dark.

“Understanding where, when and how these additional pedestrian crashes are happening can point the way to solutions,” David Harkey, the institute's president said in a statement. “This analysis tells us that improvements in road design, vehicle design and lighting and speed limit enforcement all have a role to play in addressing the issue.”

The report detailed a range of possible strategies to lessen the risk to pedestrians, from lowering speed limits and implementing broader use of speed cameras to designing roads more suited to pedestrians with safer and more convenient crossing locations. Improving lighting on streets and on vehicles was among the report’s recommended actions. Headlights, for example, have been gradually gotten better. In the 2016 model year, there were just two models with available good-rated headlights. To date for the 2018 model year, there are 26 good headlight packages.

Vehicle design changes could also help lessen the severity of crashes, especially when it comes to SUVs, the report found. Although pedestrian crashes most frequently involved cars, fatal single-vehicle crashes involving SUVs increased 81 percent, more than any other type of vehicle, according to the report. Modifications that include softer vehicle fronts was one example cited, and vehicles with front crash prevention systems that recognize pedestrians, particularly if designed to work in low light, were also found to be effective. A recent analysis by the Highway Loss Data Institute, an affiliate of the Insurance Institute, showed that Subaru vehicles equipped with pedestrian detection had claim rates for pedestrian injuries that were 35 percent lower than the same vehicles without them.

The Court Report

Victory “Going and Coming”  

By Rebecca J. Chmura and Ryan J. Kohler, Attorneys, Collins, Collins, Muir + Stewart

Employers across California received a measure of relief from the June 18, 2018 ruling by the California Court of Appeal in Newland v. County of Los Angeles. The Court clarified that employers are generally not liable for injuries caused by employees commuting to work, except under certain circumstances. In doing so, the Court overturned a ruling made in a trial against the County of Los Angeles, and ordered a defense verdict in favor of the County. The Court also gave employers substantial protection when their employees are going to and coming from work.

The Facts of Newland

The events in this case could happen to any employer. Donald Prigo, a Deputy Public Defender for the County of Los Angeles, worked at the Norwalk Courthouse and lived in Long Beach, California. Prigo often commuted by public transportation. On days that he needed to visit other courthouses, jails, or meet with witnesses, he drove his personal vehicle to work. However, the position did not require Prigo to bring his vehicle to work, and the County allowed Prigo to determine how to travel.

On February 28, 2013, while driving home from work, Prigo made a detour to a nearby post office. Upon entering the parking lot, Prigo hit another car, and that car hit plaintiff Jake Newland, pinning him against a brick wall. Newland suffered serious injuries including head trauma and multiple fractures of his ribs and spine.

Before trial, Collins, Collins, Muir + Stewart (CCM+S), which defended the County, argued that the County had no responsibility for Prigo’s actions on his way home based on the “going and coming” rule, and the County had no liability. The trial court rejected this argument and let the matter go to trial. The jury found that the County required Prigo to use his personal vehicle to perform his job, that Prigo’s negligence caused the accident, and awarded Newland over $13 million in damages against the County. The County appealed.

The Court of Appeal Vindicates CCM+S and Finds Employers are Not Liable for Commuting Employees

In general, for employers to be liable for an employee’s negligent conduct, the act must be related to the course and scope of employment. The scope of employment generally includes the tasks the employee is required to regularly perform as a result of their designated job duties. However, commuting to and from the workplace is not commonly considered to be a part of an employee’s scope of employment. This concept is known as the “going and coming” rule; where the law recognizes that the scope of employment ends when work stops. Once the employee leaves the work location, the employer is not responsible for the employee’s actions, including during the commute home.

There is an exception to the going and coming rule. If an employee is required to have a vehicle as a condition of employment, the law will usually find an employer is liable for the conduct of their employees during their commute. In requiring a vehicle, employers receive a benefit from their employees even during their commute. Because the employer benefits from the employee bringing their vehicle to work each day, this justifies employers’ ultimate responsibility over the acts of their employees. But the general rule stands that if the employee is free to choose their own method of commuting, the employer is not responsible, even if the employee choses to use a car.

The Court of Appeal held that Prigo was neither required to bring his vehicle to work, nor did the County receive any benefit, direct or incidental, from Prigo driving to and from work that day. Prigo had alternative methods of transportation and there was no strict requirement that Prigo use his personal vehicle for job-related tasks. At the time of the accident, Prigo was not acting in the scope of his employment (since he was on a personal errand) and the County did not benefit from his actions during his commute.

What Does Newland Mean for Employers?

Employers should evaluate the requirements of their positions and carefully determine which, if any, employees should be required to have a personal vehicle. Where applicable, employers can add language in their employee manual about how using a personal vehicle to commute is not required during the workday. To further limit liability, employers can encourage employees to try “green” options, like carpooling with fellow co-workers, biking, or taking public transportation. If an employee is required to use a vehicle during the day, company cars can limit the amount of driving by employees in their personal vehicles, either on the clock or during their commute.

The Court Report

District Failed to Reasonably Accommodate Probationary Employee, Or Engage in Interactive Process, When it Granted Her Medical Leave and Terminated Her While on Medical Leave

By Daniel P. Barer, Partner, Pollak, Vida & Barer

In Hernandez v. Rancho Santiago Community College Dist., published May 3, 2018, the Fourth District Court of Appeal, Division 3 affirmed a judgment after bench trial holding that the defendant district failed to reasonably accommodate the plaintiff or engage in an interactive process with her, in violation of the Fair Employment and Housing Act. 

Plaintiff Marisa Hernandez had worked for the district on and off for several years and was eventually hired as an Administrative Assistant.  During her one-year probationary period, her performance was to be evaluated at three months, seven months, and 11 months.  At the completion of 12 months of probation, she would be considered a permanent employee.  Eight months into her probationary period her doctor recommended surgery for conditions caused by a workplace injury that took place before the probationary period, but while working for the district.  She spoke to the district's risk manager and told him she was concerned that she would lose her job if she had the surgery during her probationary period.  He told her she could not be fired on a workers’ compensation case.  She estimated she would be off-work three to four months.  With the district’s consent, she went on a temporary disability leave to have surgery.  She was scheduled to return to work on, or shortly after, the anniversary of her hiring date.  The district, however, terminated her while she was on the approved leave, because her performance had not been reviewed.

In late February 2014, Hernandez received a letter from Judyanne Chitlik, who works in the district’s human resources department, terminating her employment with the district.  Hernandez thought the district had made a mistake and sent the letter to the wrong person.  She had no prior notice her job was in jeopardy.  Hernandez called the telephone number in the letter and spoke to Chitlik’s secretary who seemed nervous after hearing Hernandez’s name and, after putting her on hold for a long time, the secretary said Chitlik was not available to talk to Hernandez.  Hernandez asked when Chitlik would be available and the secretary said it would not be that week.  The secretary refused to make an appointment for Hernandez.  Hernandez then gave the secretary her telephone number, requesting Chitlik to call her back. 

Chitlik returned Hernandez’s telephone call a few hours later.  In an angry voice, Chitlik told Hernandez, “You should [have] known better than to take a personal leave while you’re on probation.”  Hernandez said she was on an approved workers compensation leave, not a personal leave, but Chitlik said it was a personal leave and that Hernandez was terminated from probation.  Had Chitlik told Hernandez she could reapply for the position, she would have.  Hernandez’s belief, however, was that she could not reapply because her employment had been terminated.

Hernandez sued the district under the California Fair Employment and Housing Act (the FEHA) (Gov. Code,1 § 12940, subds. (m), (n)), contending it failed to make reasonable accommodation for her medical condition and failed to engage in an interactive process.  At the conclusion of the court trial, the court found in Hernandez’s favor and awarded her $723,746 in damages.  The trial court found the district could have accommodated her by extending her probationary period, by deducting the four months she was on disability leave from her probationary period, or by adding the time away from work to the probationary period, and, contrary to the district’s position, the district would not have been required to make Hernandez a permanent employee on the anniversary of her hiring.  

The district appealed, contending under Education Code Section 88013(a) it had to terminate Hernandez’s probation and employment because if it did not, she would have become a permanent employee without having had her performance evaluated.    

Hernandez argued that she relied on the representation of the district’s risk manager and if she knew she would be terminated for taking medical leave during her probation, she would have waited until the probation period was over.

The appellate court agreed with the trial court that the district was liable under FEHA for not reasonably accommodating the plaintiff.  It held that the district could have deducted from the statutory probationary period the time that the plaintiff was on medical leave.  Because it did not, it failed to reasonably accommodate her.  The appellate court also agreed with the trial court that the district failed to participate in a good faith interactive process with the plaintiff.  Telling the plaintiff, she could not be fired while on medical leave, and then firing her while she was on leave, was not acting in good faith.  Nor was rebuffing the plaintiff when she contacted human resources for an accommodation.