Newsletter

Vendors/Contractors Liability Program

By Jim Thyden, Insurance Programs Manager

It is always best practice to execute agreements and require evidence of insurance and applicable endorsements from vendors and contractors your agency contracts with for services. But what happens when these vital partners do not carry the requisite coverage?

The California JPIA offers members the Vendors/Contractors Liability Program to meet this need. It was developed for those situations where members wish to enter into a contract with an otherwise qualified contractor or vendor who cannot meet the minimum insurance requirements recommended in the Contractual Risk Transfer Manual.

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The program was designed to cover vendors and contractors of various disciplines and sizes, providing the confidence to hire these critical partners. A small sampling of eligible types of vendors and contractors includes:

• Data entry/processing
• Distributors
• Curators
• Photographers and videographers
• Teachers, instructors, or trainers
• Event coordinators
• Office machine service, repair, and installation
• Printers, engravers, and painters
• A broad range of additional lower-risk vendors and contractors

The program provides general liability coverage with financial protection for claims or lawsuits alleging injury or property damage while the contractor performs the service on your premises or after the work is complete. The coverage includes:

• Contractor or vendor named as insured
• Member named as additional insured
• General contractor named as additional insured (subject to contractual obligations)
• $1,000,000 limit
• $1,000 deductible
• 30-Day notice of cancellation to member

Coverage is available only for specific contracts with a member and does not extend to other work performed by the vendor/contractor. For hazard classes, rate schedules, and additional program information, see the documents available on the California JPIA’s website. If you have questions about the Vendors/Contractors Liability Program, please contact Insurance Programs Manager Jim Thyden.

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National Preparedness Month

The Federal Emergency Management Agency (FEMA) launched National Preparedness Month (NPM) in 2004. The month, observed in September, is meant to raise awareness about the importance of preparing for disasters and emergencies that could happen at any time. Every year, a new theme is selected for the month, and this year’s theme is “A Lasting Legacy,” as FEMA wants to remind everyone that the life they have built is worth protecting. They should prepare for disasters by creating a lasting legacy for themselves and their family. More information on this awareness campaign can be found on the U.S. Government’s National Preparedness Month | Ready.gov website.

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By taking advantage of available resources, including those offered by the California JPIA, members can prepare in the following ways:

1. Training: Emergency Preparedness, Earthquake Preparedness, Fire Prevention, CPR, and First Aid Training can mean the difference between life and death in an emergency. In-person and online training information is available by visiting the California JPIA website’s training page.

Members should be aware of specific trainings that are required to be completed to qualify for FEMA funds in the event of a disaster. The Emergency Management Institute (EMI) offers self-paced courses designed for those with emergency management responsibilities and the public in general. All are provided free of charge to those who qualify for enrollment. For a complete listing of courses, visit the FEMA training page.

2. Inspect for Safety: Inspect agency-owned facilities for emergency-related exposures, including clear evacuation routes, storage practices, securing furniture or other large objects from falling, proper lighting, and emergency supplies. Visit the California JPIA’s online resource library for various inspection checklists.
3. Develop Emergency Action and Fire Prevention Plans: Cal/OSHA-compliant programs should be in writing and cover the actions employers and employees must take to ensure employee safety in all emergencies. Elements of the plan include the following:
   1. Emergency escape procedures and emergency escape route assignments;
   2. Procedures to be followed by employees who remain in their positions to operate critical operations before they evacuate;
   3. Procedures to account for all employees after evacuation has been completed;
   4. Rescue and medical duties for those employees who can perform them;
   5. The preferred means of reporting fires and other emergencies;
   6. Names or regular job titles of persons or departments who can be contacted for further information or explanation of duties under the plan;
   7. An employee alarm system that complies with Article 165 of Cal/OSHA’s Fire Protection Regulations;
   8. The types of evacuations to be used in emergency circumstances; and
   9. Training

Download an Emergency Action Plan template from the California JPIA’s online resource library.

4. Evaluate Applicable Insurance Coverages: Evaluate your agency’s coverage for emergency-related perils. The California JPIA’s property program includes all-risk coverage for real and personal property, with the option of adding earthquake and flood coverage for damages or loss of use due to these perils. Additional information can be found on the Authority’s insured programs page.

In addition to what is offered by the California JPIA, various resources are available from the Ready Campaign and the California Office of Emergency Services.

If you have any questions or need additional information or resources, please contact your regional risk manager.

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New and Updated Resources

Periodically, the Authority provides updates to our resource library, including updates to existing and newly developed resources. Below are some recent updates.

New Resource
The COVID-19 Supplemental Paid Sick Leave Policy template was developed when the supplemental paid sick leave benefit was reinstated earlier this year. The policy was made available to members in March.

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Resource Update
The Wildfire White Paper provides recommendations and resources to aid in understanding and managing wildfire and post-wildfire-related risks, including coordinating resources, communicating with the community, and establishing and enforcing sound loss prevention and defensible space practices. The white paper was made available to members in March.

The Independent Contractor Agreement and Flowchart were revised to reflect the impact of Assembly Bill 5. The independent contractor agreement template was formerly known as the instructor/coach agreement but was changed to reflect its use for various types of independent contractors. The agreement and flowchart were made available to members in April.

The Vendor, Construction, and Professional Service agreement templates were reviewed, resulting in no significant changes, and were made available to members in May and June. As a best risk management practice, agreements should be assessed regularly.

These resources can be accessed and downloaded in the Library section of the Authority’s website, cjpia.org. Resources available in Word format allow members to customize for agency-specific policies and procedures.

If you have any questions, please contact your regional risk manager.

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California JPIA Recognizes Promotion for Lyndsie Buskirk

The Authority is pleased to announce the promotion of Lyndsie Buskirk from administrative assistant to an administrative analyst. Since 2015, Buskirk has served the California JPIA by providing exemplary support to executive and administrative operations, assisting fellow staff members, serving Authority members, and providing extensive conference support. 

“Lyndsie is a highly organized and informed professional constantly seeking new ideas to bring to the table,” said Administrative Services Director Nikki Salas. “Her ability to manage many moving parts and look for new opportunities is incredible.” 

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Buskirk joined the California JPIA as a part-time employee in 2014. In July 2015, she earned a full-time position as an office assistant. She was promoted to administrative assistant in December 2019. Her promotion to administrative analyst marks a new milestone in her career with the Authority.

“Since stepping into her new role in 2019, Lyndsie has taken on many more responsibilities,” said Salas. “While managing her normal duties, Lyndsie also does an incredible job of coordinating the Authority’s conference presence and booth participation.”

Salas notes Buskirk’s conference responsibilities are no easy tasks to manage, yet she goes far beyond her administrative role to ensure everything gets done and runs smoothly.

In her current role, Buskirk supports executive and administration operations. She manages sponsorships and event logistics and helps develop the Authority’s marketing initiatives and strategies. In addition to these responsibilities, Buskirk assists CEO Jon Shull with planning, outreach, and constituent relations.

Buskirk’s promotion to administrative analyst will allow her to assume project management roles on new projects and initiatives within the California JPIA.

“I look forward to taking on more responsibility, continuing to grow, and contributing to the success of the Authority and our members,” said Buskirk.

The Authority congratulates Lyndsie on her promotion to administrative analyst!

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Ninth Circuit Rules That Officials May Violate First Amendment by Blocking Persons From Private Social Media Used for Government Business

By Sergio A. Rudin, Partner, Burke, Williams & Sorensen, LLP

Originally published on August 10, 2022. Reprinted with permission from Burke, Williams & Sorensen, LLP.

In Garnier v. O’Connor-Ratcliffe, the 9th Circuit held that two defendant public school district board members violated the First Amendment rights of the plaintiffs by blocking them on the Twitter and Facebook pages that the school board members had created and then used to communicate with their constituents.

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Key Takeaways

• Blocking persons from social media that a public official uses for governmental business, which may include informing constituents about goings-on at the agency, inviting the public to public meetings, or soliciting input about specific policies or decisions, likely violates the First Amendment.
• Blocking of specific posts or comments based on the viewpoint of the speaker, likely violates the First Amendment.
• Public officials who post about agency business and are concerned about liability may want to limit – in a manner that does not discriminate based on viewpoint – the ability of the public to interact with their social media posts.
• Courts are still catching up with officials’ abilities to interact with the public on social media. If a public official uses social media to discuss agency business, they should seek guidance from their agency counsel about which restrictions they can impose and how they may be enforced, as selective enforcement is likely problematic.

Facts

The defendant board members originally used their social media pages to promote their political campaigns. After being elected, the officials updated their social media pages to refer to their governmental positions; they continued to use those pages to post content related to school district business and the activities of the board. The officials used Twitter and Facebook to inform constituents about goings-on at the school district, invite the public to Board meetings, solicit input about specific policies or decisions, and communicate with parents about safety and security issues at the district’s schools. The plaintiffs were parents that attended meetings and were vocal critics of the school board, and became serial commenters on the two board member’s social media, posting comments about alleged wrongdoing by the superintendent, the governance of board, and race relations issues at the school district. The board members began deleting or hiding the comments on Facebook and Twitter. One of the board members eventually blocked the plaintiffs on Facebook and Twitter; the other board member blocked the plaintiffs on Facebook. Thereafter, defendants used Facebook’s “word filter” feature to prohibit the use of most common English words, which effectively blocked all verbal comments from any members of the public, but did not unblock the plaintiffs.

Analysis

Under federal civil rights law (42 U.S.C § 1983), public officials are only liable for violating the civil rights of others if they are acting “under color of state law,” which typically requires the plaintiff to prove that the official’s offending actions are fairly attributable to the state and that the defendant is not acting as a private citizen. Here, the Ninth Circuit noted the close nexus between the defendants’ use of social media and their official positions, as the defendants had identified themselves as board members on the social media page, the content of the social media related to the conduct of agency business, and there were no disclaimers noting that the pages were personal pages of the board members and that comments were not in an official capacity. The fact that the social media pages were started by the defendants during political campaigns was not sufficient to make their use of social media private conduct, nor was the intent of the board members to use the social media primarily as one-way communication, because it was not what the board members did in practice.

Additionally, the Ninth Circuit recognized that social media was inherently compatible with expressive activity. The Court noted that, where an official has made a forum “available for use by the public” and “has no policy or practice of regulating the content” posted to that forum, it has created a designated public forum. In such forums, restrictions must be narrowly tailored to serve a significant government interest and must leave open alternative channels for communication, usually limited to content-neutral time, place, and manner restrictions. The Court remarked that Twitter pages are a designated public forum, as were the officials’ Facebook pages prior to the use of the “word filter” to turn off public commenting. Lastly, the Court determined that blocking of the plaintiffs was not narrowly tailored, as it blocked more speech by plaintiffs than was necessary, and that the board members’ asserted interests in prohibiting repetitive comments was not a significant governmental interest in light of the fact that the comments did not actually impede or disrupt the officials’ use of social media to get out their own messages.

The Court further determined that using technological features to effectively limit or turn off public comments may instead create a limited public forum. In such forums, restrictions need only be viewpoint neutral and reasonable in light of the forum, but must still be unambiguous and definite. However, the Court found that continuing to block the plaintiffs from being able to post only non-verbal emoji responses served no purpose, and was not reasonable in light of the purpose of the forum. The defendant board members could not thus continue to block the plaintiffs from their Facebook pages after turning off the ability to make response comments.

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Discontinuing A Business Relationship Can Raise First Amendment Concerns

By David Urban, Senior Counsel, Liebert Cassidy Whitmore

Originally published on August 3, 2022. Reprinted with permission from Liebert Cassidy Whitmore.

A recent case has made clear that a government agency’s ceasing doing business with a company based on the viewpoints of the company’s owners can lead to First Amendment liability for the agency. Earlier this year, in Riley’s American Heritage Farms v. Elsasser, the United States Court of Appeals for the Ninth Circuit (the federal appellate court covering California), held that a California school district potentially violated a field trip vendor’s First Amendment rights. The Ninth Circuit ruled that when the school district ceased its longstanding business relationship with the vendor upon receiving complaints from parents about controversial social media posts by the company’s owner, it raised First Amendment issues.

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The two important take-aways from the case are: (1) when ceasing a business relationship because of viewpoints associated with a private company, the same First Amendment test applies as for speech by public employees (i.e., the “Pickering” test), and (2) whether the speech at issue causes or threatens to cause sufficient disruption at the agency constitutes an important factor Courts will consider in determining whether a decision to cease doing business in this context is constitutional.

Factual Background

Riley’s American Heritage Farms (“Riley’s Farm”) provides historical reenactments from the American Revolution, the Civil War, and historical farm life for students on school field trips. It also hosts events such as apple picking. For many years, the Claremont Unified School District arranged for student field trips to Riley’s Farm. The principal shareholder of the company used his personal Twitter account (separate from any social media account for business) to comment on a range of controversial topics, including, as the Ninth Circuit opinion described: “President Donald Trump’s alleged relationship with Stormy Daniels, President Barack Obama’s production deal with Netflix, Senator Elizabeth Warren’s heritage, and Riley’s opinions on gender identity.” Parents of students in the District learned of the posts, and reported them to the District as alarming and biased. In August 2018, a parent of a kindergarten student emailed to her child’s teacher: “I do NOT feel comfortable with my son patronizing an establishment whose owner (and/or family/employees) might be inclined to direct bigoted opinions towards my child or other vulnerable children in the group.” Other parents began to make similar communications to teachers and administrators at the District, local news media reported on the controversy, and ultimately field trips to Riley’s Farm from District schools stopped.  (The District disputed whether there was any actual policy prohibiting field trips.) Riley’s Farm and its owner sued District officials in federal court, contending that the discontinuation of business constituted retaliation prohibited by the First Amendment.  They contended it essentially constituted punishment of the owner for his speech on social media.

The Trial Court found in favor of the District officials, on the basis that their damages claim was barred by qualified immunity, a defense available to public officials based on lack of clarity in the law, as described below. The Trial Court also ruled that Riley’s Farm’s separate injunctive relief claim failed because there was no evidence the school district continued to have a policy against doing business with the company.

The Court’s Ruling in Riley’s

The Court of Appeals reversed in part. Although it ultimately agreed that qualified immunity barred Plaintiffs’ damages claims, it determined that the injunctive relief claim survived because evidence in the record showed the school district did appear to have a policy of not patronizing Riley’s Farm.

As to the issue of First Amendment liability, the Court held it was possible on the record that liability existed, so that summary judgment for either side was not possible. Further proceedings were necessary, including possibly a trial.

         a. First Amendment Rights of Businesses

In reaching its decision, the Court of Appeals mapped out how First Amendment law applied to an agency’s decisions as to its business relationships. The Court began by reciting the general rule that the government may not punish individuals for protected speech without violating the First Amendment. The question, the Court continued, was whether First Amendment law allowed the government some leeway when it came to choosing which business relationships to continue or discontinue. The Court explained that it did, and that the appropriate analogy to the agency-vendor relationship is the agency-employee relationship. The agency-employee relationship is governed by the “Pickering” test (from the seminal 1968 U.S. Supreme Court case on public employee speech rights Pickering v. Board of Education). This test acknowledges that government employees have First Amendment free speech rights as against their own employer, but that those rights are diminished when compared to rights of members of the public generally. The Court observed that appellate decisions had already applied this test to a number of different types of contracting relationships, and ultimately determined that the test should apply in the Riley’s case as well, even though the business relationship was less formalized and not pursuant to a specific contract.

          b. How the First Amendment Rights Applied

The Court proceeded to apply the Pickering test as follows. It explained that the test requires among other things, that the speech be on a matter of “public concern,” that the plaintiff suffer an adverse action from the government agency because of the speech, and that the agency demonstrate that it caused the adverse action because the agency “had ‘legitimate countervailing government interests [that were] sufficiently strong’ . . . to ‘outweigh the free speech interests at stake.’” (Quoting authority.) Under applicable precedent, an agency can make this demonstration by showing that the speech at issue caused sufficient actual or threatened disruption of the agency’s operations.

The Court determined that Riley’s speech on Twitter satisfied the “public concern” requirement, because of “public concern” includes speech on such topics as “politics, religion, and issues of social relations.” The Court next found that Riley’s Farm suffered an adverse action as a result of discontinued business from District field trips. Finally, the Court determined that the District did not meet its burden under the balancing of interests, in particular because the District’s evidence did not show significant actual or threatened disruption from Riley’s speech on Twitter.

In concluding the District has presented insufficient evidence to prevail in the balancing of interests, the Court emphasized, first, that there was only an “attenuated relationship between Riley’s controversial speech and the field trips themselves.” In particular, “Riley’s controversial tweets were made on his personal Twitter account, and did not mention or reference the School District or field trips to Riley’s Farm in general,” there were no allegations “that Riley made (or planned to make) any controversial statements during a school field trip,” and there were “no allegations that he interacted at all with the students during the field trips.”

Second, no sufficient evidence of disruption existed. The District presented the Trial Court with only “two complaints from parents, only one of which involved a student currently enrolled in the School District,” and a reference to other parents excusing themselves from trips, without the District describing “the number of parents or the nature of those complaints.” (By contrast, other cases had found complaints from 60 or “hundreds” of parents sufficient evidence of disruption under the circumstances of those cases for the school district to prevail on balancing.) There was also insufficient evidence of future disruption, in that only a handful of parents appears to have asked that their students be excused from a single field trip. The Court also observed, in evaluating disruption, that there had been only relatively sparse media attention directed to Riley’s tweets, compared to other cases in which a significantly greater public controversy arose.

The Court of Appeals did, however, confirm that the doctrine of qualified immunity blocked any damages claims against officials of the District. Under the doctrine of qualified immunity, a public official who violates an individual’s constitutional rights is nevertheless not liable in damages if those rights were not clearly established at the time of the misconduct.

Qualified immunity, however, did not apply to Plaintiffs’ request for injunctive relief. That meant Plaintiffs’ case for injunctive relief could proceed.

Import of the Riley’s Case Ruling

The case illustrates hazards in an agency’s terminating a business relationship with an individual or company based on the political, social, or other views they express, particularly when that expression of views has no connection to the services the individual or company has offered. Under the test described by Riley’s, however, it is possible for an agency to do so without violating the First Amendment. To do so, the agency must be able to present sufficient evidence it would prevail in a balancing of interests, including sufficiently persuasive and substantial evidence of the disruption caused by the speech at issue or that could be caused.

Given the often complex nature of this area of law, it is helpful to consult trusted legal counsel when these types of First Amendment issues arise. Federal case law will likely soon provide further answers in these areas.

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