Issue 129 – November 2022
The California JPIA has been awarded Accreditation with Excellence by the California Association of Joint Powers Authorities (CAJPA) for a three-year term from 2022-2025.
Created in 1981, CAJPA is a statewide association for insurance-based risk-sharing pools that provides continuing education, legislative advocacy, and active involvement in regulatory matters on behalf of its joint powers authority members. CAJPA is California’s leading voice for pools, risk management, and JPAs.
CAJPA sponsors the nation’s first risk management accreditation program. Established in 1988, the program forms a set of professional standards which serve as a guideline for all risk management pools regardless of size, the scope of operation, or membership structure.
“Accreditation by CAJPA, particularly Accreditation with Excellence, provides confidence to our members. It assures them that there has been an external examination of our pool’s legal, contractual, and operational documents and procedures, as well as our risk management, loss control, and claims management programs. It confirms that we are meeting and exceeding statutory compliance and best risk management practices,” said Chief Executive Officer Jon Shull. “We are proud to have been awarded CAJPA’s highest recognition, Accreditation with Excellence, a title reserved for those JPAs who exceed the mandatory requirements for accreditation.”
“To put this recognition in context,” said the Authority’s Business Projects Manager, Carl Sandstrom, who serves on CAJPA’s technology and accreditation committees, “there are about 135 risk-sharing pools in California. Of those, about 100 are members of CAJPA, and of those, about 60 have achieved CAJPA’s rigorous accreditation.”
The CAJPA accreditation factors are comprehensive: more than 30 pages of standards encompassing governance, operations, claims management, finance, and accounting. The foundation of the accreditation program is:
- To promote professional management and fiscally sound practices
- To provide industry standards that can be used in evaluating levels of performance and compliance
- To develop a self-regulating process that is thorough, responsive, and cost-effective
- To assist managers in achieving and assure governing boards of meeting high standards
- To provide an opportunity to compare specific policies and procedures to the accreditation standards and other pools in the industry
“The accreditation process was created, and continues to be cultivated, to ensure the long-term health of the risk-sharing pool industry,” said Sandstrom. “By formalizing a self-regulating program through accreditation, members of pools benefit from higher operating standards and financial controls. It is CAJPA’s answer to the question: ‘Who can help us ensure our JPA is being operated in the best way possible?’”
Learn more about CAJPA and its accreditation program.Print Article
The 2022-23 Cyber Liability Program renewal was challenging for many reasons. The frequency and severity of cyber incidents affecting local government agencies is a worrying and upward trend. Additionally, the public sector lags behind other industries in its cybersecurity proficiencies. Both circumstances have led to the reduced willingness of insurers to write cyber liability coverage.
Ultimately, the Authority obtained pool-wide coverage for 2022-23 through two insurers – Great American Insurance Company (GAIC) and Tokio Marine Houston Casualty Company.
All members have access to GAIC’s Eagle Eye cyber risk management platform. This platform includes the following three resources:
- Employee Insights. A shareable checklist to help employees remember and avoid the most common security errors.
- Security Scorecard. An instant scan of how hackers, vendors, and the public see your website from the outside. Note: Security Scorecard is a third-party service that requires members to create an account to access it.
- Security Roadmap. A multi-session questionnaire that compares member cybersecurity practices to the National Institute of Standards and Technology (NIST) Cybersecurity Framework. Upon completing the questionnaire, Security Roadmap provides recommendations for improvement and allows members to track progress.
To access these resources, complete the following steps:
- Open a web browser and navigate to the Eagle Eye website.
- Click “Create An Account” in the top right corner.
- Complete the policyholder registration form. (Note: You will need to request the policy number and zip code from your regional risk manager.)
- Click “Register” and follow the instructions to access Eagle Eye.
Members are strongly encouraged to take advantage of these resources as tools to improve cybersecurity practices and to increase the likelihood that the Authority will be able to obtain pool-wide cyber liability coverage in the future.
If your agency does experience a cyber incident, you should immediately call the GAIC crisis hotline at (877) 209-2009 or send them an email. GAIC will assign an incident coach – at no cost to members – to guide you through responding to the cyber incident. If additional services (i.e., forensic, restoration services) are necessary to respond to the incident, those are the responsibility of each member up to the applicable deductible.
Please contact your regional risk manager if you have any questions or would like additional information.Print Article
With the holidays approaching, many members are preparing for holiday or end-of-year employee recognition parties. The question of whether to serve alcohol should be carefully evaluated. The consumption of alcohol at workplace parties may encourage inappropriate behavior, which can lead to liability or workers’ compensation claims from employees or claims from third parties due to incidents occurring during or after the event.
Employers (including local government agencies) may be liable for incidents arising out of workplace parties where alcohol is served. Courts evaluate different factors when deciding whether an employer is liable for an employee involved in an accident due to consuming alcohol at an employer’s function. Factors may include whether employees were required to attend, where the event was held, if guests were invited, whether employer business was discussed, and if the event was sponsored or planned by the employer or organized independently by employees.
In the 2013 ruling of Purton v. Marriott International, Inc., the California Fourth District Court of Appeal held the employer liable for a death caused by an employee who became intoxicated at a workplace party. The employee arrived home safely but left to drive a co-worker home. The employee then hit another car, killing its driver. The trial court granted summary judgment in favor of the employer because liability under the doctrine of respondeat superior ended when the employee arrived home. However, the appellate court reversed the decision and sent the case back for trial. The appellate court found that because the party benefited the employer by improving employee morale, the employer should be liable for the accident because the proximate cause of the injury (alcohol consumption at the party) occurred within the scope of employment.
The only way to avoid liability arising from serving alcohol at a workplace party is not to serve alcohol. However, if your agency does decide to serve alcohol, the following steps are recommended to minimize liability:
- Ensure that harassment prevention training has recently been provided and training records are up to date. Review your agency’s discrimination, harassment, retaliation prevention, and substance abuse policies before the event. Consider policies making clear that excessive consumption of alcohol at agency functions will not be tolerated. Policies may include specific examples of conduct that will not be permitted. If your agency’s policies do not address workplace social events, consider updating them accordingly. Also, remind employees about the dangers and consequences of drinking and driving. Policies should be communicated using various methods: email, paycheck stub memos, bulletin boards, meetings, etc. Signed acknowledgments of receipt and understanding of policies by employees should be obtained.
- Make clear to employees that attendance at agency social events is strictly voluntary and not a requirement of employment. This suggestion applies to whether or not alcohol is served.
- Limit the amount and types of alcohol to be served. For example, consider having a cash bar or providing a limited number of drink tickets per person. Sweet alcoholic drinks or punches make it difficult for an individual to know how much they have consumed. In addition, serve plenty of non-alcoholic beverages such as water, sodas, and juices.
- Close the bar one or two hours before the event is over and continue to serve food.
- Hold the event off agency premises at an establishment with professional bartenders and a valid liquor license. Professional bartenders know how to deal with guests consuming alcohol in excess. When hiring professional bartenders or caterers, ensure they carry appropriate general liability and liquor liability insurance. Do not allow employees to serve drinks to co-workers.
- Since workplace parties are typically social, limit the discussion of business and hold the event outside of business hours.
- Consider allowing family and significant others to attend. Inviting guests implies the event is social rather than business-related. In addition, employees are likely to be more reserved and less inclined to participate in offensive behavior. However, if customers or business partners are invited, the function is apt to be viewed as a business event.
- If inviting minor guests, do not serve alcohol.
- Do not allow employees to bring alcohol to an agency event.
- Provide alternative transportation (such as rideshare services) for employees leaving workplace parties where alcohol is served. Encourage employees to have a designated driver.
- Consider scheduling the party earlier in the day so employees are less inclined to drink excessively.
- Do not require non-exempt employees to perform functions at agency social events. This can help to avoid wage and hour claims.
Opinions vary about the wisdom of serving alcohol at workplace parties. Consult legal counsel for advice on your specific situation.
If you have questions, please contact your regional risk manager.Print Article
The Authority and its broker partner, Alliant Insurance Services, provide members with a cost-effective way of covering the California financial assurance requirements on Underground Storage Tanks (USTs). This coverage dovetails with the master pollution program and is specifically designed to meet the state’s requirements.
As background, the state requires each entity with USTs to have a dedicated $1 million limit of insurance or to provide the state with a $1 million financial guarantee to cover a contamination incident, should one occur. Members must provide an underground storage tank application to Alliant to renew coverage. The insurance carrier would then review the application to evaluate if the specifics of the UST would qualify for the program. The insurance carrier would determine pricing and coverage terms if the UST qualifies.
Each participating member has a dedicated $1 million limit. Deductibles range from $25,000 to $500,000, depending on the age and specifics of the UST. For more coverage information, see the pollution program detail on our website.
The California JPIA recognizes the Monterey Peninsula Regional Park District (MPRPD), which is celebrating its 50th Anniversary this year.
MPRPD was established in November 1972 through the voice of the Committee for Open Space, formed by the voters of Monterey Peninsula and a coalition composed of the Sierra Club, the League of Women Voters, and the Audubon Society. From the start, the District has been entrusted to acquire lands to preserve open space and provide recreational opportunities. In the 50 years since its formation, MPRPD has successfully protected approximately 14,000 acres of open space while maintaining balanced budgets and minimal overhead. In addition, the District has acquired or helped to acquire 24 parks from the seven incorporated cities on the Monterey Peninsula, Carmel Valley, Pebble Beach, and the Big Sur coast.
The MPRPD boasts a variety of wildlife species that cover habitats ranging from coastal bluffs and dunes to ponds, woodlands, and canyons. As diverse as the habitats it covers, MPRPD park offerings include hiking, biking, fishing, birdwatching, dog parks, outdoor classrooms, and more. In addition, the District has helped other entities acquire open spaces. MPRPD has provided more than $1 million in grant funds to other park and recreation districts and organizations to improve their infrastructure, accessibility, programming, and offerings. By granting funds to other organizations, the District has increased access to parks and open spaces for more than 65,000 residents, thus expanding the MPRPD ethos beyond District properties.
Since its origination, the MPRPD has had community involvement at all levels, from its board of directors to volunteer participation. Today, the District offers many ways to get involved, including its Community A.L.I.V.E. volunteer program and service learning through California State University, Monterey Bay, “Let’s Go Outdoors!” public programs, and education and group activities. The community is very involved with the MPRPD, which makes it easy for staff to receive feedback when determining which programs to offer. When considering programs suggested from public feedback, the District confers with Authority staff to help assess the risk of programming.
“The California JPIA has been a proud partner of the Monterey Peninsula Regional Park District for many years. The District furthers its important mission by working with area municipalities to offer open space, parks, and play development areas,” said Senior Risk Manager Tim Karcz. “The Authority assists the district by providing important training for agency staff and analysis on complicated contracts and arrangements to help make these important programs happen.”
Palo Corona Regional Park is vital to the MPRPD, enhancing the Central Coast’s habitat conservation and restoration, environmental research and education, and recreational opportunities. Since its acquisition, this regional park has re-established a critical ecological link that protects a 70-mile-long wildland corridor that begins at the Carmel River and extends southward to the Hearst Ranch in San Luis Obispo County. Future Palo Corona Regional Park plans include the monumental Carmel River Floodplain and Upland restoration project, which will convert a former golf course into native habitat and shall serve as an incident command center in response to wildfires, floods, and other detrimental events. The park also provides various recreational opportunities, including a dog park, an inclusive playground, an ADA multi-benefit community trail enhancement, and a pollinator demonstration garden.
“Palo Corona Regional Park represents the multi-functional value of open spaces. It reflects the interests and input of the community, which has informed its development for now and beyond,” said Environmental Education Coordinator Savannah Peña. “There’s a little something for everyone: restoration, conservation, education, and recreation.”
Congratulations to the Monterey Peninsula Regional Park District for its continued focus on preserving open space for wildlife, residents, and visitors for 50 years!Print Article
On September 24, 2022, the City of Duarte celebrated its 65th anniversary of incorporation with its annual City Picnic. Planned and executed by the city’s Parks and Recreation Department, this year’s City Picnic was filled with family-friendly activities and attractions for the entire community hosted in one of Duarte’s beautiful local parks, Royal Oaks Park. Capturing the essence of Duarte’s tight-knit community and honoring its 65th year as a city, the City Picnic went off without a hitch.
The City of Duarte was officially formed on August 22, 1957, after a group of community members banded together to support the incorporation of the city and the Duarte Unified School District. The community is bordered to the north by the San Gabriel Mountains, creating beautiful walking and hiking paths, and is located on the historic U.S. Route 66, which runs directly through the middle of the city. Before its formation, Duarte was home to two medical institutions that eventually evolved into the world-renowned City of Hope Medical Center, a leading cancer-fighting center. These medical institutions helped inspire the city’s nickname, City of Health.
Today, Duarte is home to almost 22,000 residents, and all residents were welcomed to join the city in celebration of its anniversary at the City Picnic. This year’s City Picnic featured musical entertainment, including young musicians from Duarte’s local high schools, a kids’ stage, food, information booths, a classic car show paying homage to Route 66, a beer garden, games, and rides.
Living up to its nickname as the City of Health, Duarte city staff members always do their due diligence to ensure the safety and health of their residents, according to Senior Risk Manager Maria Galvan.
“With an event of this size, it was very important to city staff that we took all necessary precautions when planning,” said Parks and Recreation Director and Capstone Finalist Manuel Enriquez. “I utilized several of the Authority’s resources, including the Contractual Risk Transfer Manual and Special Event Risk Management Checklist, when preparing for the event.”
Duarte looks to continue paying homage to its history while providing public services and community-wide events that unite Duarte residents. Congratulations to Duarte for safely serving your residents for the last 65 years!Print Article
The 2022 legislative session ended on September 30, 2022, with Governor Newsom signing 997 bills into law while vetoing 169 bills. Among those are several employment laws that employers should prepare for as the end of 2022 draws near. Unless otherwise noted in the summaries below, approved bills are effective on January 1, 2023.
AB 2188: Employment Discrimination and Cannabis
As previously reported, AB 2188 has amended the California Fair Employment and Housing Act (FEHA) by protecting an employee’s use of cannabis off the job and away from the workplace. AB 2188 also prohibits any employment-related drug test that screens for non-psychoactive cannabis metabolites in the employee’s or applicant’s hair, blood, urine, or other bodily fluids. However, AB 2188 permits testing that detects psychoactive THC in an individual’s bodily fluids or tests actual impairment. The bill also allows employers to continue prohibiting employees from possessing or being impaired by cannabis on the job. There are limited exceptions to the new requirements.
This bill is effective on January 1, 2024, which gives employers more than a year to update their relevant workplace policies and procedures. Further, as this was an amendment to the FEHA, the California Civil Rights Council (previously known as the Fair Employment and Housing Council) will likely consider possible regulatory updates in 2023. Employers should continue to monitor for updates.
SB 523: Reproductive Health Decisionmaking
SB 523 amends the FEHA to make it unlawful to discriminate against employees or applicants because of their “reproductive health decisionmaking.” “Reproductive health decisionmaking” is defined to include, without limitation, a decision to use or access a particular drug, device, product, or medical service for reproductive health. SB 523 also prohibits employers from requiring, as a condition of employment, continued employment, or a benefit of employment, the disclosure of information relating to an applicant’s or employee’s reproductive health decisionmaking.
AB 1949: Bereavement Leave
AB 1949 amends the California Family Rights Act (CFRA), which is part of the FEHA, to require that covered employers provide up to five days of bereavement leave to eligible employees for the death of the employee’s spouse, domestic partner, child, parent, parent-in-law, sibling, grandparent, or grandchild. Covered employers are private businesses that employ five or more persons or the state and any political subdivision of the state, including, but not limited to, cities and counties. Employees are eligible if they have worked for the employer for at least 30 days. The five days do not need to be taken consecutively but must be used within three months of the death.
While the leave is unpaid, employees are entitled to use their accrued paid leaves, including sick leave, to offset their lost wages. Employers may require the employee to provide documentation to confirm the need for leave, such as a death certificate; a published obituary; or written verification of death, burial, or memorial services from a funeral home or other applicable entity. Note, however, that this request must occur within 30 days of the employee’s first day of leave. Employers are required to maintain the confidentiality of any employee requesting bereavement leave and any provided documentation, except to internal personnel or legal counsel, as necessary or as required by law.
AB 1949 does not apply to an employee who is covered by a valid collective bargaining agreement if the agreement expressly provides for bereavement leave equivalent to that required by AB 1949 and for the wages, hours of work, and working conditions of the employees, and if the agreement provides premium wage rates for all overtime hours worked, where applicable, and a regular hourly rate of pay for those employees of not less than 30 percent above the state minimum wage. Members should review their existing bereavement leave MOU/CBA provisions and policies to determine if changes are necessary. If an employer has an existing bereavement leave policy, then leave should be taken pursuant to that policy. If that policy provides for less than five days of leave, then the employee would be entitled to no less than a total of five days of bereavement leave, with the policy-provided leave paid under the policy and the remaining days unpaid, except that the employee can use accrued paid leave.
AB 1949 also contains provisions that protect employees from interference, discrimination, and retaliation because of their exercise of rights provided under the new law.
AB 1041: Leave to Care for “Designated Persons”
On January 1, 2021, the CFRA definition of a covered family member was expanded to include adult children, siblings, grandparents, grandchildren, and parents-in-law. AB 1041 further expands that definition by including a “designated person.” The bill defines a “designated person” as “any individual related by blood or whose association with the employee is the equivalent of a family relationship.” No additional guidance is contained in the bill on how an employer determines if the person is the “equivalent of a family relationship.” The bill requires the employee to identify the designated person when they request leave. Employers are permitted to limit employees to one designated person per 12-month period. The Civil Rights Commission may issue amendments to the CFRA regulations to provide further clarification on these new requirements.
In addition, AB 1041 added “designated person” to the list of family members an employee may take time off to care for under the Healthy Workplaces, Healthy Families Act, California’s paid sick leave law. For purposes of the paid sick leave law, AB 1041 did not include the requirements that the person have the equivalent of a family relationship. AB 1041 does permit employers to limit the designated person to one per 12-month period for paid sick days.
SB 1044: Emergency Conditions
SB 1044 was passed in response to reports of employees being required to work in unsafe wildfire conditions. It prohibits an employer, during an “emergency condition,” from taking adverse action against an employee for refusing to report to or leaving a workplace or worksite because the employee has a “reasonable belief” that the workplace or worksite is unsafe. For purposes of this bill, “emergency condition” means (1) conditions of disaster or peril caused by natural forces or a criminal act; or (2) an order to evacuate a workplace, worksite, a worker’s home, or the school of a worker’s child due to a natural disaster or a criminal act. “Emergency condition” does not include a health pandemic, such as COVID-19. An employee’s belief that the workplace is unsafe is “reasonable” if a person under similar circumstances would conclude there is a real danger of death or serious injury if that person enters or remains on the premises.
However, SB 1044 will have a more limited application in the public sector, as the above provision expressly does not apply to several types of employees, including, but not limited to, the following:
- A first responder, as defined in Section 8562 of the Government Code.
- A disaster service worker, as defined in Section 3101 of the Government Code.
- An employee required by law to render aid or remain on the premises in case of an emergency.
- An employee or contractor of a health care facility who provides direct patient care, provides services supporting patient care operations during an emergency, or is required by law or policy to participate in emergency response or evacuation.
- A transportation employee participating directly in emergency evacuations during an active evacuation.
- An employee whose primary duties include assisting members of the public in evacuating in case of an emergency.
SB 1044 also prohibits employers from preventing employees from using their mobile devices to seek emergency assistance, assess the safety of a situation, or communicate with a person to verify their safety in such an “emergency condition.”
AB 2693: Extension of COVID-19 Notice Requirements
AB 2693 changes and extends the COVID-19 notification requirements in Labor Code 6409.6. Under existing law adopted under AB 685, employers must provide written notice of potential workplace COVID-19 exposure within one business day to all employees at the worksite. Under AB 685, this requirement was set to expire on January 1, 2023. AB 2693 extends the reporting obligation to January 1, 2024, and gives employers an alternative way to comply with their notification requirements.
Instead of sending a written notice, employers will be able to choose to prominently display a notice to inform employees of potential COVID-19 exposure, so long as the posted notice complies with several statutory requirements, including:
- The employer must post the notice in all places where notices regarding workplace rules or regulations are customarily posted, including an existing employee portal.
- The employer must post the notice within one business day of notification of the potential COVID-19 exposure, and it must remain posted for not less than 15 calendar days.
- The employer must post the notice in English and the language understood by the majority of employees.
- The notice must contain the following:
- The dates on which an employee (or an employee of a subcontracted employer) with a confirmed case of COVID-19 was on the worksite premises during the infectious period;
- The location of the exposures, including the department, floor, building, or another area (but the location need not be so specific as to allow individual workers to be identified);
- Contact information for employees to receive information regarding COVID-19 related benefits to which the employee may be entitled, and anti-retaliation and anti-discrimination protections; and
- Contact information for employees to receive the cleaning and disinfection plan the employer is implementing.
Employers must also keep a log of all dates the required notice was posted at each worksite and allow the Labor Commissioner to access these records.
As of the publication date of this article, the proposed Cal/OSHA COVID-19 non-emergency standard provisions on notice are not yet harmonized with AB 2693. Therefore, employers should continue to monitor the development of the Cal/OSHA standard to ensure compliance with all notice requirements.
In addition, employers will no longer be required to notify the local public health agency in the event of an outbreak. The California Department of Public Health is also no longer required to publicize workplace industry information regarding COVID-19 outbreaks and cases received from local public health departments.Print Article
THE COURT REPORT
CEQA Finding of Exemption to be Listed on an Agency’s Agenda for its Public Meetings
Originally printed on October 31, 2022. Reprinted with permission from Best Best & Krieger.
In G.I. Industries v. City of Thousand Oaks, the Second District Court of Appeal recently held that the City Council’s approval of a project exempt from CEQA violated the agenda requirements of the Brown Act when it did not list the item on its agenda. In doing so, the Court reversed the trial court’s order sustaining a demurrer without leave to amend brought by a local agency and the real party in interest.
The City of Thousand Oaks (City) posted an agenda stating that it would consider awarding a solid waste franchise agreement to Arakelian Enterprises, Inc., doing business as Athens Services, along with a note that City staff recommended approval. The agenda did not state that the City would also consider whether the agreement was exempt from CEQA. On the day of the City Council meeting, a supplemental item was posted giving notice of staff’s recommendation that the City find the agreement to be exempt from CEQA. The City Council moved to approve the Franchise agreement including in that motion that the approval was exempt under various CEQA exemptions.
In response, Waste Management filed a writ of mandate alleging that the City violated Section 54954.2 of the Brown Act because the City failed to provide notice through its posted agenda that CEQA exemptions would be considered at the City council meeting. The trial court concluded that because CEQA does not require a public hearing for an exemption determination, the Brown Act does not require that the exemption be agendized. The Court of Appeal reversed.
The Court concluded that the Brown Act applies to the City Council’s determination that the project was exempt from CEQA by relying on San Joaquin Raptor Rescue Center v. County of Merced (2013) 216 Cal.App.4th 1167. The Court of Appeal indicated that members of the public are entitled to have notice of and an opportunity to participate in a local agency’s determination that a CEQA exemption applies, just as they are entitled to have such notice when a CEQA document is being considered. The Court ultimately held that “the City cannot avoid the Brown Act simply by delegating its duty to its staff. Where a local agency at a regular meeting approves a project that is subject to staff’s determination of a CEQA exemption, it must give notice of the CEQA exemption on its agenda.” The Court remanded to the trial court to fashion an appropriate remedy.
This case expands existing case law by expressly requiring local legislative bodies who issue project approvals to put CEQA exemption determinations on their agendas to comply with the Brown Act. For more information about this decision, contact a Best Best & Krieger attorney in the firm’s Environmental Law & Natural Resources and Municipal Law practice groups.
Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts, facts specific to your situation or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information herein.Print Article