Newsletter

City of Palm Desert Celebrates 50^th Anniversary

The California JPIA recognizes the City of Palm Desert, celebrating its 50^th Anniversary.

Incorporated on November 26, 1973, Palm Desert has come a long way from its early days as a small community in the Coachella Valley. Once primarily a destination for winter vacationers and retirees, Palm Desert has evolved into a vibrant city with more than 52,000 residents and welcomes countless visitors year-round.

“Palm Desert has built a strong foundation over the past 50 years,” said Palm Desert City Manager Todd Hileman. “With strong leadership from the City Council and an engaged community, the city is in a solid position for sustainable, responsible growth for the future.”

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Nestled beneath the San Jacinto mountains, the city offers residents and visitors a unique blend of natural beauty, cultural vibrancy, and economic prosperity. Arts and cultural amenities are pivotal in shaping the city’s identity. Palm Desert is the home to the McCallum Performing Arts Theatre, the Palm Desert Aquatic Center, the Palm Desert Library, the Melissa Morgan Sculpture Garden, the Create Center for the Arts, the Living Desert Zoo, and 12 parks.

The McCallum Theatre features world-class performances from Broadway shows to classical music, while the Artists Council Artists Center at the Galen features ongoing exhibitions of internationally important sculpture, painting, photography, art glass, architecture, and design. The city is also home to the Living Desert Zoo & Botanical Garden. The 1,200-acre preserve is one of the City’s most popular attractions and features 400 desert animals, Native American exhibits, hiking trails, and more.

Palm Desert’s commitment to sustainable living is evident in its eco-friendly initiatives, including its well-maintained public parks, bike-friendly infrastructure, a grid of electric vehicle charging stations, and a focus on renewable energy sources, ensuring the desert landscape remains pristine for generations to come.

The heart of Palm Desert lies in its strong sense of community. Over the past five decades, residents have created a warm and welcoming environment for newcomers and tourists alike. Events like the Palm Desert Golf Cart Parade and the Concerts in the Park series have become valued traditions that unite the community.

”It has been my pleasure to serve as the City of Palm Desert’s regional risk manager for the last 11 years,” said California JPIA Senior Risk Manager Alex Mellor. “The Palm Desert community is fortunate to have a professional and dedicated city staff who focus on completing projects and providing services that enhance the quality of life for all stakeholders. I appreciate city leadership allowing me to support staff in accomplishing these goals while protecting valuable city resources.”

The City of Palm Desert celebrated its golden anniversary with an all-day event in Civic Center Park on November 18. The event featured live musical performances, art installations, a culinary food tasting, and a wine and beer garden.

As Palm Desert celebrates its 50^th anniversary, the city is set on a bright future. Plans for further urban development, cultural enrichment, and environmental preservation continue to shape the city.

Congratulations to Palm Desert for serving your residents proudly for the last 50 years!

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New General Liability Insurance for Instructors Hired by Members

The Authority recognizes that sometimes members partner with vendors who are unable to meet their insurance requirements. We are pleased to announce a new resource to help members partner with these vendors.

Southern California Municipal Athletic Federation (SCMAF) provides general liability insurance for instructors hired by members. The insurance covers injuries and property damage caused by the negligence or acts of omission by the instructor:

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• $1 million per occurrence general liability coverage
• $5 million general aggregate general liability coverage
• $5,000 excess accident medical coverage for all instructors and students with a $0 deductible per claim.
• $1 million per occurrence and $2 million aggregate for sexual abuse and molestation is available contingent upon meeting certain terms and conditions.

For questions, additional information, and to use the program, access the SCMAF website.

If you have questions about SCMAF or vendor insurance requirements, please contact Insurance Programs Manager Jim Thyden.

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To Serve Alcohol or Not to Serve Alcohol, That is the Question

By Maria Galvan, Senior Risk Manager, and Alex Mellor, Senior Risk Manager

As the holidays approach, many members are preparing for 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.

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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 following the party but then 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, and substance abuse prevention 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 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.

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New FPPC Regulations for Campaign Contributions

By Denise S. Bazzano, Partner; Chad W. Herrington, Partner; Thomas D. Jex, Partner; and Justin A. Tamayo, Associate; Burke, Willians & Sorensen

Originally published on October 16, 2023. Reprinted with permission from Burke, Williams & Sorensen, LLP.

On June 15, 2023, new regulations to implement Senate Bill (SB) 1439 were adopted by the Fair Political Practices Commission (FPPC). As some readers may recall, SB 1439 became effective on January 1, 2023, and extends the applicability of the Levine Act (Government Code section 84308) relating to campaign contribution disclosure requirements, to elected officials (previously it only applied to appointed officials). As a result of these changes, it is critical that elected and appointed officials that receive campaign donations monitor donations received to determine whether a donor is a “party” or “participant” to any pending proceeding before their agencies and recuse themselves from those items if necessary.

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In summary, SB 1439 prohibits these officials from accepting, soliciting or directing a campaign contribution of more than $250 from any “party” to or “participant,” as those terms are defined, in a proceeding involving a license, permit or other entitlement for use both while that proceeding is pending and for 12 months following the date a final decision is rendered. The bill also requires officials to recuse themselves from any proceeding if the member received a campaign contribution of more than $250 from a person involved in the proceedings within the previous 12 months. However, an official is not required to be recused if the officer returns the contribution within 30 days from the time the officer knows, or should have known, that the contribution came from a participant or party in the proceeding involving a license, permit, or other entitlement for use. Moreover, an official may cure a violation if (1) the officer did not knowingly and willfully accept, solicit, or direct the contribution; and (2) the officer returns the amount over $250.00 within 14 days of accepting, soliciting, or directing the contribution, whichever comes latest.

There was some initial confusion over whether the requirements applied prospectively to donations received after January 1, 2023 or whether campaign donations received in 2022 (prior to the effective date of SB 1439) were subject to the new requirements. The FPPC issued an opinion on December 22, 2022 (Kendrick Opinion) concluding that there was no clear indication that the Legislature intended SB 1439 to apply retroactively and so, the requirements should apply to contributions received after January 1, 2023.

The new FPPC Regulations (2 Cal. Code of Regs. §§ 18438 – 18438.8) (“Regulations”) are intended to further clarify the application of SB 1439. A summary of some of the new Regulations and changes to Regulation 18705 (Rule of Public Necessity) are summarized below.

Regulation Section 18438

• Confirms that the requirements of Government Code Section 84308 do not apply to proceedings participated in, or contributions made to or accepted, solicited, or directed by an officer prior to January 1, 2023.

Regulation Section 18438.1

• Clarifies when officers and agencies are exempted from or included in proceedings involving a license, permit or other entitlement for use.

Regulation Section 18438.2

• Clarifies what is meant by “proceeding involving a license, permit or other entitlement for use” under Government Code section 84308 and defines other terms to clarify the exemptions from the definition of “License, permit, or other entitlement for use.” The exemptions include certain types of contracts including a “competitively bid contract,” “labor contract” and “personal employment contract.”

Regulation Section 18438.3

• Clarifies what is meant by the term “agent” under Government Code section 84308 and clarifies that drawings or submissions of architectural, engineering or similar nature or purely technical data or analysis submitted in a proceeding to an agency may not be included under the term “communication with the governmental agency for purpose of influencing the proceeding.”

Regulation Section 18438.4

• Provides definitions to clarify participants under Government Code section 84308, including defining various terms such as “lobbies in person,” “testifies in person” or “otherwise acts to influence.”

Regulation Section 18438.5

• Provides guidance on how to determine whether the contribution limit of $250 has been met under Government Code section 84308 and aggregated contributions. To determine whether a contribution of more than $250 has been made by a party or participant during a 12-month period, the following must be aggregated: (1) All contributions made by the party or participant; (2) All contributions made by an agent of the party or participant during the shorter of: (A) The previous 12-month period; or (B) The period beginning on the date the party or participant first hired the agent as either a paid employee, contractor, or consultant. (3) All contributions made by an individual, other than an uncompensated officer of a nonprofit organization, or entity required to be aggregated with the party or participant and any agent of the party or participant under Government Code Section 82015.5.

Regulation Section 18438.6

• Clarifies when an officer “makes,” “accepts” or “receives” a contribution and when an officer “solicits” or “directs” a contribution.

Regulation Section 18438.7

• Specifies when an officer is deemed to have knowledge of a financial interest.

Regulation Section 18438.8

• Specifies when disclosure is required under Government Code section 84308 for an officer of the local agency as well as when disclosure is required for a “party” to a proceeding.

Regulation Section 18705 – Legally Required Participation (Rule of Public Necessity)

• Adds to the Legally Required Participation requirements that a public official that has received a disqualifying contribution under Government Code section 84308 may participate if they are legally required to make or participate in the making of a governmental decision within the meaning of Government Code Section 87101, if there is no alternative source of decision, after disclosure of the disqualifying contribution, as specified.

These Regulations became effective on August 12, 2023, and significantly impact disclosure and recusal requirements for campaign contributions for elected and appointed officials. These Regulations may also require agents, parties and participants to certain proceedings to disclose campaign contributions and thus public agencies may want to review their applications or conflict disclosure statements to ensure compliance with the Regulations.

Burke, Williams & Sorensen, LLP advises on legal matters regulating government operations in accordance with ethical and legal standards including the Political Reform Act and Government Code section 1090. We frequently provide ethics training to elected city council and board members, appointed officials and staff to ensure that everyone within the agency understands existing law or is aware of new laws affecting their work.

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California Law Expands Leave Rights for Reproductive Losses

By Jacquelyn Takenda Morenz, Senior Counsel; Aaron V. O’Donnell, Partner; Georgelle C. Cuevas, Partner; and Emaleigh Valdez, Associate; Atkinson, Andelson, Loya, Ruud & Romo

Originally published on October 27, 2023. Reprinted with permission from Atkinson, Andelson, Loya, Ruud & Romo.

Signed by Governor Newsom on October 11, 2023, Senate Bill (“S.B.”) 848 adds section 12945.6 to the Government Code effective January 1, 2024. S.B. 848 allows qualifying employees to take a leave of absence following a “reproductive loss event” and makes it an unlawful employment practice for a qualified employer to refuse to grant a qualified employee’s request to take leave following a reproductive loss event or to retaliate against an employee for requesting such leave. Under existing law, California employers were required to provide employees bereavement leave upon the death of a family member. (Gov. Code § 12945.7.) Under existing law, it was unclear if a reproductive loss was covered by bereavement leave. S.B. 848 addresses this question and provides a separate form of leave for a reproductive loss event.

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Who is Covered by the New Law?

Under S.B. 848, an “employer” includes anyone who employs five or more persons and all California public employers, including public school districts and community college districts. An “employee” is defined as “a person employed by the employer for at least 30 days prior to the commencement of the leave.” Any persons who would have been a parent if the reproductive event had been successful are entitled to this new type of leave. Notably, unlike California’s bereavement leave law (Government Code § 12945.7), there is no exemption for employees covered by collective bargaining agreements that meet certain requirements.

What Qualifies as a “Reproductive Loss Event”?

S.B. 848 broadly defines what qualifies as a “reproductive loss event.” The definition includes “miscarriage, unsuccessful assisted reproduction, failed adoption, failed surrogacy, or stillbirth.”

An “unsuccessful assisted reproduction” includes “method[s] of achieving a pregnancy through an artificial insemination or an embryo transfer,” but does not include an attempt to become pregnant through sexual intercourse.

A “failed adoption” includes “the dissolution or breach of an adoption agreement with the birth mother or legal guardian, or an adoption that is not finalized because it is contested by another party.”

A “failed surrogacy” includes both the “dissolution or breach of a surrogacy agreement, or a failed embryo transfer to the surrogate.”

A “miscarriage” includes not only a miscarriage suffered by the employee or the employee’s spouse or registered domestic partner, but also a miscarriage suffered “by another individual if the person would have been a parent of a child born as a result of the pregnancy” – it would therefore appear, for example, that a miscarriage suffered by a surrogate after an initially successful embryo transfer would qualify as a reproductive loss event for the intended parent(s).

It is unclear if an employer can ask an employee for medical or other documentation to support the request for reproductive loss leave. S.B. 848 does not contain a provision explicitly permitting an employer to request supporting documentation.

How Much Leave is an Employee Entitled to?

When a qualified employee suffers a reproductive loss event, the employee is entitled to up to five days of leave following the day of the reproductive loss event, or the final day of a reproductive loss event for a multiple-day event. The leave need not be taken immediately following the reproductive loss event, but must be taken within three months from the event. Under S.B. 848, if an employee experiences more than one reproductive loss event within a 12-month period, the employee is only entitled to a total of 20 days of leave within the 12-month period. An employee’s request for reproductive loss leave is confidential.

Interaction with Existing Leave Policies:

If the employee has a policy covering reproductive loss, then the leave taken pursuant to S.B. 848 is taken pursuant to the existing applicable leave policy of the employer. If an employer does not have a policy covering reproductive loss, then the employee may take available and accrued sick leave or other compensatory time off (e.g. vacation, bereavement leave, personal necessity leave). The paid leave may run concurrently with leave taken pursuant to S.B. 848. If an employee does not have any available paid leave, then the employee may take unpaid leave pursuant to S.B. 848.

This AALRR post is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process.

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Changes to Paid Sick Leave Obligations Are Coming: Be Sure to Have the Right Policies in Place Before the Year Ends.

By Alexander Volberding, Partner; and Nathan Price; Liebert Cassidy Whitmore

Originally published on October 24, 2023. Reprinted with permission from Liebert Cassidy Whitmore.

On October 4, 2023, Governor Newsom signed Senate Bill (“SB”) 616 into law.

SB 616 amends the Healthy Workplaces, Healthy Families Act of 2014 (Labor Code sections 245-249) to increase the minimum number of paid sick days to which employees, including public employees, are entitled as well as the minimum number of days employees may carry over from one year of employment to the next. While these substantive changes do not apply to employees who are covered by certain Memorandums of Understanding (“MOUs”) or Collective Bargaining Agreements (“CBAs”), employees covered by such contractual agreements nevertheless will receive certain procedural protections against discrimination and retaliation related to the use of paid sick leave that they did not previously possess.

Before SB 616 takes effect on January 1, 2024, here is what your agency needs to know about the law, so that your agency can revise your personnel policies as necessary to comply with the new legal obligations.

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The Current Law

The Healthy Workplaces, Healthy Families Act of 2014 (Labor Code sections 245-249) establishes paid sick leave entitlements for most employees in California.

Currently, the substantive benefits and procedural protections under the law do not extend to employees who are covered by an MOU or a CBA that provides the following: (1) paid sick days, leave or time off; (2) final and binding arbitration; and (3) a regular hourly rate of pay not less than thirty percent (30%) more than the state minimum wage (i.e., $20.80 per hour on January 1, 2024 when the minimum wage increases to $16.00 per hour).

Under the current law, employers must allow covered employees to accrue paid sick leave at a rate not less than one (1) hour of leave accrued for every 30 hours of work (known as the 1:30 accrual rate). Employers may use a different accrual method so long as employees receive a minimum of three (3) days (or 24 hours) of paid sick leave by the employees’ 120th calendar day of employment. Alternatively, current law allows employers to front-load the “full amount of leave” (i.e., providing three (3) days (or 24 hours) of paid sick leave) at the beginning of each year of employment, calendar year, or 12-month period).

While current law entitles covered employees to accrue and carry over from one year of employment to the next a certain amount of paid sick leave, the law does not require employers to allow employees to accrue more than six (6) days (or 48 hours) of paid sick leave nor does the law require employers to allow employees to carry over more than three (3) days (or 24 hours) of such leave. If an employer elects to front-load sick leave, the employer is not obligated to allow employees to carry over any sick leave that they may have remaining at the end of the year because there is the understanding that employees will receive their full allocation of sick leave at the beginning of the next year of employment, calendar year, or 12-month period.

The current law also only provides procedural protections to covered employees (i.e., those not subject to MOUs or CBAs like those defined above). Such employees receive statutory protection related to their use or attempted use of paid sick leave, including the right to use accrued sick leave and the right to be free from discrimination related to the use or attempted use of such leave and to be free from retaliation if they file a complaint with the Labor Commissioner regarding paid sick leave violations. Employees who are not covered by the Healthy Workplaces, Healthy Families Act are not entitled to these procedural protections currently.

The New Paid Sick Leave Landscape

The enactment of SB 616 will make a number of significant changes to paid sick leave entitlements for and procedural protections available to employees under the Healthy Workplaces, Healthy Families Act.

The new law does not change 1:30 accrual rate set forth under the existing law. However, for employers that use a different accrual method, the law now requires that they provide employees a minimum of five (5) days (or 40 hours) of paid sick leave by the employees’ 200th calendar day of employment. This new statutory requirement supplements the existing requirement that such employers provide employees three (3) days (or 24 hours) of paid sick leave by the employees’ 120th calendar day of employment.

Under the new law, the alternative front-loading approach remains available to employers, so long as the employer front-loads the “full amount of leave,” which under the new law is five (5) days (or 40 hours) of paid sick leave.

The new law also increases the minimum amount of paid sick leave that employers must allow employees to accrue to 10 days or 80 hours and increases the minimum amount of paid sick leave that employers must allow employees to carry over from one year of employment to the next to five (5) days or 40 hours. However, employers that elect to front-load five (5) days (or 40 hours) of paid sick leave are still not required to allow employees to carryover leave from one year to the next.

Finally, the new law extends the procedural protections that were previously only available to employees who were not covered by an MOU or CBA to those that are covered by such a contractual agreement.

Steps to Making Sure Your Organization Is Ready

Given these significant changes to paid sick leave law, it is important that employers act promptly in order to ensure compliance with the new legal obligations when they take effect January 1, 2024.

Review the Agency’s Paid Sick Leave Policies: Review the agency’s existing paid sick leave policy to ensure that the policy satisfies the new substantive requirements regarding accrual and carry-over of paid sick leave under the Healthy Workplaces, Healthy Families Act for employees who are covered by the law and entitled to those substantive benefits.

1. Review the Agency MOUs or CBAs: Review and analyze the agency’s MOUs and CBAs to determine whether the agreements provide for (1) paid sick days, leave or time off; (2) final and binding arbitration; and (3) sufficient compensation to employees. If the MOUs or CBAs do not satisfy the requirements for exemption from the substantive requirements under Labor Code section 245, understand that the employees covered by such MOUs or CBAs will be entitled to those substantive benefits.
2. Consider the Status of an Employee: For employers with part-time employees, consider the front-loading approach, which will likely reduce the administrative burden associated with the monitoring hours worked by employees who may work irregular hours.
3. Provide Procedural Protections for All Employees: Extend the procedural protections set forth under Labor Code section 246.5 to all employees, including those that are covered by an MOU or CBA that satisfies the requirements for exemption from the substantive requirements of the Healthy Workplaces, Healthy Families Act.
4. Communicate: Communicate to affected employee organizations any changes to policy or practice that the agency must make in order to comply with the changes to the law. An agency does not need to negotiate a change that is necessary in order to comply with the law, but it should communicate that it is changing its policy or practice and provide the employee organizations an opportunity to identify any negotiable effects or impacts of the decision and request to bargain those effects or impacts.
5. Document, Document, Document: Maintain thorough records that the agency reviewed and, if necessary, revise its policies or practices to comply with the law.
6. Consult Trusted Legal Advisors: If you are uncertain about how the changes in the law may affect your agency or if you need guidance in updating your policies, consider consulting with your trusted legal advisors.

By following these steps, your agency can ensure that it is fully prepared for the changes that will take effect January 1, 2024.

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