Risk-Sharing Pools

The California JPIA’s culture of approachability, professionalism, and commitment to members emanates from the leadership of Chief Executive Officer Jon Shull, who signed on in 1995 and took the helm as Chief Executive Officer in 2002. Shull celebrates 25 years of service to the Authority this month.

“There are good managers and there are good leaders,” said Curtis Morris, President of the Authority’s Executive Committee and Mayor of the City of San Dimas. “Jon is both. His management and leadership have elevated the Authority to a new level.”

Originally intent on becoming a city manager, Shull earned his undergraduate and master’s degrees in public administration from Cal Poly San Luis Obispo and the Maxwell School at Syracuse University, respectively. After securing his first “real” job as an administrative assistant for the City of Cerritos, he transitioned to a role as assistant to the city manager in the City of Signal Hill.

“Both Cerritos and Signal Hill were members of the then-Southern California JPIA,” said Shull. “When Authority General Manager Bill Holt began looking for an assistant, it wasn’t a straight line on my career path to becoming a city manager, but I was familiar with the Authority, and I was a strong advocate for risk management.”

Shull applied for the position and was hired in February 1995.

By the end of the decade, the Southern California JPIA became the California JPIA, providing risk management services from an extended and renovated facility in the City of La Palma. Under his leadership, the Authority launched its first website, transformed training from a simple member benefit to a holistic loss-prevention strategy, and implemented a new prospective funding model that positioned the pool to maintain its strong financial position and provide stability to members. The California JPIA also enhanced its already-respected voice in state and national risk management organizations, receiving Accreditation with Excellence by the California Association of Joint Powers Authorities and the Association of Governmental Risk Pools’ Advisory Standards Recognition.

“Jon is a visionary,” said Margaret Finlay, Vice President of the Executive Committee and a Councilmember for the City of Duarte. “He doesn’t look at things how they are, but how they should be.”

Shull’s commitment to risk management and innovation have established the Authority as a leader in the pooling industry.

Q: How has the Authority changed and grown during your tenure?

As an established self-insurance pool, in the early years we provided a good alternative to the commercial marketplace. Things changed when we recognized the need to be a “risk” management organization, not just a “claims” management organization.

Q: How did your experience as a municipal staff member affect your approach to leading the Authority?

Having worked for cities, I was able to identify where the Authority could benefit cities. Risk management consulting—having more risk managers who can visit agencies on a regular basis—allows us to really serve the members, listen to what they need, and identify opportunities outside their field of vision. Local risk managers can provide very timely service, be present on site, and become an extension of staff; that helps develop relationships and protect organizations from risks.

Q: How does your role as CEO of the Authority equate to a role as a city manager?

In a sense, I am in city management. I work with city managers by focusing on risk management as a trusted partner. I am involved in discussing development, addressing employee issues, reviewing construction contracts, and helping to make sure that city employees are safe. I feel gratified that I get to do so much with our cities that are doing so many interesting things, and to help deal with challenges in the risk management arena.

Q: Looking back, what are some accomplishments of which you’re proud?

First, the expansion of our training program has been huge. And the training we provide is at no direct cost to the members.

The other thing of which I’ve been particularly proud is the people with whom I’ve had the opportunity to work. At this point in my career, I’m able to celebrate that I hired everyone who works at the Authority. It is a very thoughtful, dedicated, passionate group of people who are truly dedicated to the members and their success. That also extends to our Executive Committee.

Q: How have changes in technology impacted your work?

When I first started with the Authority, one of my first tasks was to work on the retrospective deposit computation, which was done by the accounting department by hand. The use of Microsoft Excel spreadsheets to modernize that process was a big change. Remember, that was 25 years ago!

The use of technology to interact with risk managers in the field, allowing them to work from their homes, closer to the members, instead of having to come into La Palma, also has been a huge benefit.

The other big thing is big data: having the computing capacity to really analyze our data and to have access to industry data about factors that are influencing claims and exposures.

All of those resources help to reduce the cost of risk to the members. We are able to reduce expenses so they can keep the money that they otherwise would spend on attorneys and claimants and instead invest in their communities, to provide services that their constituents want.

Q: What do you predict for the Authority over the next 25 years?

As a financially strong pool with dedicated human resources, the Authority will see continued growth to provide our services to more agencies. Our focus will continue to be on municipal exposures. I expect the Authority will continue to develop innovative programs to serve our members.

Q: What would you like to share with Authority members as you celebrate this milestone anniversary?

Think about risk management. If you have a question, or you’re about to do something, call us. We would love to help. Being involved early allows us to help identify potential challenges from a risk management perspective. We want to be involved with what you’re doing. We care.

Congratulations, Jon, and thank you for your service!

The California JPIA is driven by dedicated, hard-working staff members who are committed to providing exemplary service to members. In December 2019, seven such employees received promotions in recognition of their contributions to the Authority and members.

The Authority is pleased to announce the promotions of Lyndsie Buskirk and Lilian Salcedo from Office Assistant to Administrative Assistant; Courtney Morrison and Abraham Han from Administrative Analyst to Management Analyst; and Maria Galvan, Melaina Francis, and Alex Mellor from Risk Manager to Senior Risk Manager.

“Our employees are key differentiators that set the Authority apart as a leader in the self-insurance pooling community,” said Chief Executive Officer Jon Shull. “These promotions recognize the contributions and advancement through progressively more responsible positions within the Authority. As they and others on the Authority staff continue to expand their roles, I am excited to see the even deeper knowledge and experience with which we’ll be able to support our members.”

Read below for thoughts staff members shared as they celebrated their promotions.

 

Administrative Assistant Lyndsie Buskirk
Lyndsie joined the California JPIA in 2015. “My favorite part about working for the Authority is interacting with and serving our members. We have a huge network of great people.”

 

 

 

 

 

Administrative Assistant Lilian Salcedo
Lilian joined the California JPIA in 2018. “I am proud to work for an organization that truly believes in its core values. I admire the Authority’s dedication to its members and how much it values its employees.”

 

 

 

 

 

Management Analyst Courtney Morrison
Courtney joined the California JPIA in 2014. “There’s so much to like about working here. Having dedicated, professional, and kind coworkers is at the top of my list.”

 

 

 

 

 

Management Analyst Abraham Han
Abe joined the California JPIA in 2015. “My favorite part about working for the Authority is being able to work on challenging problems. There are few things more rewarding than making our members feel like a bridge has been formed between a problem and a solution.”

 

 

 

 

Senior Risk Manager Maria Galvan
Maria joined the California JPIA in 2013. “I am excited to continue to grow in an organization where leadership empowers staff to provide exceptional service to our members and excel in our chosen career paths. I look forward to continuing to assist members with their risk management efforts.”

 

 

 

 

Senior Risk Manager Melaina Francis
Melaina joined the California JPIA in 2013. “I am proud of the terrific working relationships that I have developed over the years with members in my region, and I hope to continue contributing to the success of the Authority and the membership to address and reduce the frequency and severity of losses.”

 

 

 

 

Senior Risk Manager Alex Mellor
Alex joined the California JPIA in 2012. “My favorite part about my job is working closely with members. Our member agencies are full of staff who are talented, dedicated, and genuinely care about the communities they serve. It is a privilege to work alongside them.”

 

 

 

Please join us in congratulating Lyndsie, Lilian, Courtney, Abraham, Maria, Melaina, and Alex as they take on their new responsibilities!

In this Special Bulletin, we address how to respond to potential employment issues arising from the 2019 Novel Coronavirus (“Coronavirus”) and we recommend steps to limit the impact of the Coronavirus in the workplace.

The Public Health Response and Current Situation

As of January 27, 2020, the Centers for Disease Control and Prevention (“CDC”) has issued a Level 3 health travel notice (the highest threat level) recommending that people avoid all nonessential travel to China.

On January 30, 2020, the World Health Organization (“WHO”) declared the Coronavirus outbreak a “public health emergency of international concern.” After WHO’s global health emergency declaration, the U.S Department of State raised its China travel advisory to Level 4: “Do Not Travel.”

On January 31, 2020, the U.S. Department of Health and Human Services declared a public health emergency in the United States and implemented the following:

• Any U.S. citizen returning to the U.S. who has been in the Hubei province of mainland China in the previous 14 days will be subject to up to 14 days of mandatory quarantine.
• Any U.S. citizen returning to the U.S. who has been in any other part of mainland China within the previous 14 days will undergo proactive entry health screening at a select number of ports of entry and up to 14 days of monitored self-quarantine to ensure they have not contracted the virus and do not pose a public health risk.

Also on January 31, the U.S. President signed a presidential proclamation, suspending the entry into the United States of foreign nationals, other than immediate family of U.S. citizens and permanent residents, who have traveled in China within the last 14 days.

What is the Coronavirus?

The Coronavirus is a respiratory virus first identified in Wuhan, Hubei province of China. This virus most likely originally emerged from an animal source but now seems to be spreading person-to-person.  For confirmed Coronavirus infections, reported illnesses have ranged from people with little to no symptoms to people being severely ill and dying. Symptoms can include fever, cough, and shortness of breath. The CDC believes at this time that symptoms of the Coronavirus may appear in as few as two or as long as fourteen days after exposure.

How does the Coronavirus spread?

According to the CDC, little is known about how the Coronavirus spreads. Most often, spread from person-to-person happens from close contacts (about six feet). Person-to-person spread occurs mainly via respiratory droplets produced when an infected person coughs or sneezes, similar to how influenza and other respiratory pathogens spread. These droplets can land in the mouths or noses of people who are nearby or can be inhaled into the lungs. It is currently unclear if a person can contract Coronavirus by touching a surface or object that has the virus on it and then touching their own mouth, nose, or possibly their eyes.

Typically, as with most respiratory viruses, people are thought to be most contagious when they are most symptomatic (the sickest). With the 2019 Novel Coronavirus, however, there have been reports of spread from an infected patient who had no symptoms to a close contact. There is much more to learn about the transmissibility, severity, and other features associated with the Coronavirus and investigations are ongoing.

What Actions can Employers take to Prevent the Transmission of the Coronavirus?

• As discussed above, the United States is imposing a 14-day mandatory quarantine on individuals who have traveled to Hubei province, and 14 days of monitored self-quarantine for individuals returning from other parts of mainland China. The director of the CDC stated that people in mandatory self-quarantine “will be monitored by the local health departments in a self-monitoring situation in their home.”
• Currently, there is no Coronavirus vaccine available, so the CDC is recommending standard precautions, such as: washing hands with soap and water for at least 20 seconds; avoiding close contact with sick people; staying at home when you are sick; and disinfecting frequently touched objects and surfaces.
• Employers should prepare for the possibility that some employees may have to stay home in the event of school closures or childcare concerns.
• Employers should ensure that common areas in the workplace, including computer keyboards used by more than one person, are kept clean and disinfected.
• Employers should inform employees that information regarding medical conditions is kept strictly confidential and they will not suffer retaliation for reporting that they are ill or if they need to take a family or medical leave.

  Issues that Employers Should Consider Regarding the Coronavirus

• Employers and employees should not prejudice employees of Asian descent because of fear of this new virus. Do not assume that someone of Asian descent is more likely to have the Coronavirus.
• Follow federal, state and local laws, as well as any agency policies and/or collective bargaining agreements provisions, covering family and medical leave entitlements, and confidentiality require­ments.
• Review all applicable guidance from the Occupational Safety and Health Administration (“OSHA”), CDC and WHO. Although OSHA has not announced specific standards covering the Coronavirus, it has issued a notice indicating that employers should be aware of general standards to which they may be subject under OSHA. The Notice is available at: https://www.osha.gov/SLTC/covid-19/standards.html
• Avoid asking employees questions about any known or suspected medical condition or med­ical history. In 2009, the Equal Employment Opportunity Commission (“EEOC”) released a notice titled “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act,” which provides guidance. The Notice is available at: https://www.eeoc.gov/facts/pandemic_flu.html
• If applicable, refer to your agency’s pandemic or health protection policy for further guidance.

Employers should continue to refer to the CDC, WHO, and OSHA websites for the latest information.

Many public officials are unaware or forget that Government Code section 1099 (All future references are to the Government Code, unless otherwise stated.) makes it unlawful for a public official to hold multiple public offices where those offices are incompatible. A recent case from the Second Appellate District held that section 1099 prohibited a board member for a water replenishment district from simultaneously holding office as a mayor of a city within the district and that neither public agency could make the offices compatible through a resolution or ordinance. (The People of the State of California ex rel. the District Attorney of Los Angeles County v. Albert Robles, 2019 WL 2714538.)

This case is an excellent reminder to public officials that if they are considering taking on a second public office or already serve in multiple public offices, those offices must be compatible pursuant to section 1099 and thus careful consideration of the duties of each office should be considered.

In this case, Albert Robles (“Robles”) held two offices: mayor of the City of Carson (“Carson”) and member of the board of directors of the Water Replenishment District of Southern California (“WRD”). The WRD serves 43 cities in southern Los Angeles County, including Carson, and is governed by a five-member board of directors. The WRD is empowered by the California Water Replenishment District Act (“Act”), which allows the WRD to replenish groundwater supplies by buying, selling, or exchanging water, among other things. Pursuant to the Act, WRD charges a replenishment assessment (“Assessment”) to fund its operating expenses and other activities and every year holds hearings to determine whether and to what extent the costs of the ensuing year will be paid for by the Assessment. The public can attend these hearings and the Assessment may be challenged. Carson, as a city within the WRD is subject to the Assessment set by the board of WRD.

While serving on the board of WRD, Robles decided to run for a council seat and was elected in 2013. In 2014, the District Attorney informed Robles he was holding two incompatible offices under section 1099, which meant he would forfeit the first office on WRD. Robles continued to hold both offices and was appointed mayor by his fellow councilmembers in 2015.

Ultimately, the District Attorney sought and was granted permission by the Attorney General to sue Robles in a quo warranto proceeding and the case was tried. The trial court held two hearings on the quo warranto petition and determined that Robles was in violation of section 1099. On appeal, Robles argued, among other things, that the two offices are compatible and regardless, the public bodies on which he sits consented to his holding of both offices so as to invoke the proviso in section 1099(a), which allows simultaneous holding of even possibly conflicting offices when “compelled or expressly authorized by law.”

The Appellate Court affirmed the trial court’s determination that the two offices held by Robles were incompatible and in violation of section 1099. The Appellate Court analyzed the language of section 1099, which codified the common law doctrine of incompatibility and determined that the question is whether a clash of duties or loyalties for a WRD director who is simultaneously a mayor for a city within the WRD boundaries is possible rather than inevitable or more likely than not. The Court found that it was possible that there would be a significant clash of duties or loyalties given that Carson was within the WRD geographic boundaries and given that the board of directors of WRD set an Assessment that Carson was subject to and required to pay. The Court also found that while there did not appear to be any current conflict between WRD and Carson that could result in conflict, there is a distinct possibility that Robles could be put in a position in the future where he would be asked to pick a side if Carson and WRD became opposed on some issue, including Assessments.

The Appellate Court also considered Robles’ contention that he was “compelled or expressly authorized by law” to hold offices for both Carson and WRD because both of those entities have laws authorizing him to do so. WRD had passed a resolution authorizing directors to hold positions in other governmental agencies and cities within the WRD boundaries and Carson adopted an ordinance authorizing a city elected or appointed official to simultaneously hold office as a director of the WRD or on certain other bodies. The Court analyzed the language in section 1099(a), which allows simultaneous holding of even possibly conflicting offices when “compelled or expressly authorized by law” and the legislative history of section 1099 and concluded that the reference to “law” in section 1099(a) was to state law, not local law. Thus, the Carson ordinance and the WRD resolution cannot make the occupancy of two offices compatible by being “compelled or expressly authorized by law.” Additionally, the Court found that even if that language applied to local law, WRD’s resolution did not qualify as “law” because the Act does not specifically give WRD authority to establish laws relating to incompatible offices and Carson’s ordinance alone was not enough to cure the incompatibility. As a result of the incompatibility of the two offices held by Robles in violation of section 1099, the judgment was affirmed removing Robles from his office on the board of directors of WRD.

(Reprinted with permission from Dickinson, Wright, PLLC. Originally posted online to JDSupra)

The internet age has opened up seemingly countless digital platforms for employers and employees to use in seeking to fill, and applying for, open positions. Many employers use Indeed, Quikr, CareerBuilder, Glass Door, LinkedIn – the names are endless – to post jobs and look for employment candidates. Given the prevalence of such platforms, the Equal Employment Opportunity Commission (EEOC), the U.S. Department of Justice, and the U.S. Department of Housing and Urban Development have been monitoring their use in areas such as employment, housing, and credit. These agencies have made it a priority to ensure that companies cannot exclude certain groups from online advertising or solicitations, whether involving employment, housing, or credit.

Employers in particular must pay attention to certain actions that were taken by the EEOC in 2019 (and that are expected to continue through 2020), and in litigation currently pending in the federal court for the Northern District of California.

Specifically, the EEOC stepped up its involvement after Charges of Discrimination were filed against employers in varied industries alleging that the employer’s use of Facebook to recruit candidates violated the federal Age Discrimination in Employment Act (ADEA) and Title VII of the Civil Rights Act (Title VII). The ADEA prohibits an employer from printing or publishing, or causing the same, of any notice or advertisement for employment which indicates a preference, limitation, specification, or discrimination, based on age. Title VII includes the same prohibitions, but in regards to gender, race, color, religion, and national origin. The Charges primarily alleged that the employers advertised on Facebook for an open position and used language which limited the ages of those individuals who could apply for the position.

Some of the EEOC Charges were filed against well-known large employers, such as Capital One, Edward D. Jones & Co., Enterprise Holdings, and Renewal by Andersen. However, Charges also were filed against smaller employers like the City of Greensboro North Carolina Police Department, Rice Tire (a Maryland and Virginia auto repair firm), Enhanced Roofing and Modeling (in the DC area), and the Nebraska Furniture Mart.

In July 2019, the EEOC issued determinations against seven of the companies, finding “reasonable cause to believe that” at certain times each one advertised on Facebook, with national exposure, and when doing so engaged in the practice of “advertising on a social media platform and limiting the audience for their advertisement[s] to male” applicants or to “younger applicants”. The EEOC’s reasonable cause findings marked the first time it found violations in a Charge regarding the advertisement for, and the targeting of, certain groups of employees to the exclusion of other groups.

The American Civil Liberties Union and other groups separately sued Facebook, claiming that Facebook allegedly sold advertising platforms which targeted specific age groups and genders, excluded candidates within certain zip codes, or limited geographic areas. That litigation was settled in March 2019 with Facebook agreeing to pay $5 Million and make changes to its advertising platforms, including eliminating targeting by age, gender, zip code, limited geographic area, and stopping the consideration of such information of Facebook users, along with membership in Facebook “groups” when creating so-called “Lookalike” audiences for advertisers.

The EEOC’s reasonable cause determinations also were recently cited in a federal class action lawsuit currently pending in federal court in California and brought by the Communications Workers of America against Amazon.com Inc. and T-Mobile US Inc. to emphasize that the federal government considers this type of activity as violating the ADEA. See Communications Workers of America v. T-Mobile US, Inc. and Amazon.com, Inc., No. 17-cv-07232-BLF (N.D. Cal.).

The class action lawsuit accuses both companies of violating the ADEA by directing that job ads on Facebook be pushed only to younger workers. Amazon is defending itself in litigation; however, the case is in its very early stages. It remains possible that the court could find that the advertisements used violated the ADEA if they were circulated or pushed in a way that rendered them viewable by a select group of candidates only, such as younger candidates, and even if the language in the advertisement was age-neutral on its face.

Employer Take-Aways
The EEOC’s actions and the federal court litigation are instructive for all employers using any technology platform for recruitment. Employers taking advantage of the myriad ways to recruit, including the use of social media advertising platforms such as paid advertising provided by Facebook, may unintentionally open themselves up to litigation on the grounds that their advertisements are targeted in a way the excludes individuals in legally protected classifications.

Employers must keep in mind that job postings and announcements must be reviewed for content, and posted for publications, in ways and in media platforms that do not exclude categories of individuals, whether based on age, gender, race, or otherwise. This need to ensure compliance applies regardless of whether traditional and/or digital platforms are used to recruit employees. Merely because a position is posted online, and on a hugely popular social media platform, does not mean that the process itself ensures compliance with federal and state anti-discrimination laws.

Municipal code enforcement is only as effective as an enforcement officer’s investigation. Because not all potential code violations can be investigated from the public right of way, code enforcement investigations may require access to enclosed or shielded areas of private property. In these more difficult investigatory settings, code enforcement staff may be strongly tempted to rely on emerging drone technology to peer into otherwise inaccessible properties and document nuisance conditions. This particular use of drone technology, however, is sure to raise concerns regarding privacy and the Fourth Amendment.

Unfortunately, case law has not kept pace with the burgeoning drone industry, which has left many code enforcement officers and local officials with numerous questions about what is and is not permissible under the Fourth Amendment. Before using a drone in a nuisance investigation, code enforcement officers should consult their local agency’s legal counsel. In most cases, a warrant will be required before a drone can be used.

The Recent Expansion of Local Governments’ Drone Use

The use of drone technology has expanded exponentially over the past decade. As drones have become cheaper, more efficient and easier to operate, a corresponding expansion has occurred in local governments’ potential uses of drone technology — which include code enforcement.

The Federal Aviation Authority (FAA) has sole authority to regulate United States airspace. The FAA Modernization and Reform Act of 2012 authorizes the FAA to establish requirements and regulations for drones, otherwise known as unmanned aircraft systems (UASs). According to the FAA, a drone is a type of aircraft that operates without onboard pilots or crew.[1] The FAA has developed rules for governmental, commercial and private drone usage.[2] In general, drones are not permitted to fly over 400 feet above ground level.[3] Governmental agencies that wish to operate a drone for public purposes must first obtain from the FAA a certificate of authorization (COA) or waiver, which allows the FAA to conduct a comprehensive operation and safety review.[4]

After a local government has obtained the necessary COA, drones have innumerable potential governmental uses. Within the realm of law enforcement, drones have been used for accident and crime scene reconstruction, vehicle and suspect pursuits and search and rescue. These particular types of situations often involve emergencies or “exigent circumstances” and therefore typically do not raise Fourth Amendment issues. The potential use of drones for aerial surveillance and investigation by code enforcement officers, however, directly implicates the Fourth Amendment.

Fourth Amendment Considerations

The Fourth Amendment prohibits unreasonable searches and seizures by government agents without a warrant and applies with the same force to investigations and administrative searches by code enforcement officers as it does to searches and seizures by the police or other law enforcement agencies.[5] The amendment states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The question of whether a search is subject to the Fourth Amendment depends on whether there is a reasonable expectation of privacy in the place to be searched. To determine if a person has a reasonable expectation of privacy, courts employ a two-part test articulated by the U.S. Supreme Court in Katz v. United States (1967).[6] The test “asks first whether the person has manifested a subjective expectation of privacy in the object of the challenged search, and second whether society is willing to recognize that expectation as reasonable.”[7]

Courts apply the highest level of Fourth Amendment protection to those areas within a private residence and the residence’s “curtilage,” which is the area immediately adjacent to and surrounding the home. What constitutes the curtilage is determined on a case-by-case basis and depends on the proximity of the area to the home, the presence of any enclosures around the area in question, the nature of the area’s uses and the steps taken by the resident to shield the area from observation.[8] The Fourth Amendment also applies to commercial businesses, particularly private areas that are not open to the public.[9]

The Plain View Doctrine

The plain view doctrine is an exception to the Fourth Amendment that permits law enforcement officers to make observations from public places or neighboring properties without obtaining a warrant. For example, California appellate courts have held that viewing marijuana plants from a neighbor’s second story window did not violate the Fourth Amendment[10] and that an officer did not act unreasonably when he peeked over a fence from a neighboring property.[11] In both of these situations, the appellate court was persuaded by the fact that the officers had a lawful right to be where they were when they made the disputed observations.

The appellate courts have not yet addressed whether the use of drone technology falls within the plain view doctrine in the context of either code enforcement or police searches. However, in the following cases, the U.S. Supreme Court has addressed the Fourth Amendment implications of using airplanes and helicopters to gather evidence of criminal violations:

In California v. Ciraolo (1986),[12] the court held that a warrantless aerial observation from an airplane flying in navigable airspace at 1,000 feet above a fenced-in backyard did not violate the Fourth Amendment. The court concluded that there was no reasonable expectation of privacy in an uncovered backyard that was visible from navigable airspace to any person flying over the property.

In Dow Chemical Co. v. United States (1986),[13] the court held that the Environmental Protection Agency’s use of aerial photography from an airplane flying in navigable airspace at least 1,200 feet above a highly secure industrial facility did not require a warrant. The court noted that the camera used by the government was a “commercial camera commonly used in mapmaking” and was not a “unique sensory device” that could record conversations inside Dow’s buildings or reveal such “intimate details as to raise constitutional concerns.”

In Florida v. Riley (1989),[14] in a plurality decision, the court held that there was no Fourth Amendment violation when law enforcement used a helicopter flying in navigable airspace 400 feet above the ground to observe a greenhouse that was being used to cultivate cannabis.

A California appellate court also applied the U.S. Supreme Court’s decision in Florida v. Riley to a “general, random, helicopter surveillance” of rural properties in the case of People v. McKim (1989). In that case, two officers were operating a helicopter in a grid pattern at approximately 400 feet when one of them spotted cannabis plants growing on the defendant’s property. Based on this aerial observation, the officers obtained a search warrant. The trial court concluded that flying under 500 feet, which was the lowest permissible altitude for fixed-wing aircraft, was per se unreasonable but the court of appeal reversed based on Florida v. Riley and held that warrantless aerial observations from at least 400 feet did not automatically violate the Fourth Amendment. The court noted that there was “no evidence … that the helicopter surveillance over defendant’s residence interfered with defendant’s use of his property, or revealed intimate details connected with the use of his home or curtilage, or created any undue noise, wind, dust or threat of injury.”[15]

Does the plain view doctrine apply to the use of drones for surveillance and investigation?

It is difficult to predict whether courts will apply these cases to the use of drones for surveillance and investigation, but it seems safe to conclude that drones raise entirely new issues that airplanes and helicopters do not. The concept of navigable airspace that figured prominently (but was not necessarily determinative) in the plain view cases discussed in the preceding section will probably have little application to drones, which can fly safely and relatively undetected at much lower altitudes than conventional aircraft and can enter confined spaces and record images and sounds in ways that would be impossible for airplanes or helicopters. Rather, it is likely that the potential intrusiveness of drone technology will guide the Fourth Amendment analysis. When it comes to drones, therefore, we must look to Katz v. United States and ask whether the expectation of privacy under any particular set of circumstances involving a drone is one “that society is prepared to recognize as ‘reasonable.’”

Justice Sandra Day O’Connor’s concurring opinion in Florida v. Riley may be instructive. In that case, she observed that the court found no Fourth Amendment violation in California v. Ciraolo “because public air travel at 1,000 feet is a sufficiently routine part of modern life that it is unreasonable for persons on the ground to expect that their curtilage will not be observed from the air at that altitude.” With regard to the use of a helicopter, she concluded that “there is reason to believe that there is considerable public use of airspace at altitudes of 400 feet and above” and that, as a result, any expectation that the property owner’s backyard greenhouse would remain private was unreasonable.

Under this approach, it is probable that a warrant will be required for drones in most investigatory situations. While the use of drones in public places has become very common and popular, there has not been considerable use of low-flying drones over private properties, as was the case with airplanes and helicopters. In fact, the public has expressed significant concern over possible privacy intrusions made by both privately and publicly operated drones.[16] It is likely that a court would conclude that a resident’s expectation of privacy from low-flying drones that can make high-resolution observations is “one that society is prepared to recognize as reasonable.”[17]

Additional Considerations

Code enforcement officers should also check the local regulations, if any exist, on drones. If the jurisdiction restricts the use of drones above residential, commercial or industrial properties, such restrictions may be a critical factor in determining whether the expectation of privacy is reasonable. Even if there are no local drone regulations in effect, the potential for unreasonable privacy intrusions by increasingly sophisticated drone technology will likely tip the scales in favor of requiring a warrant for the use of drones in code enforcement investigations.

The better practice, therefore, is for code enforcement officers to simply obtain an administrative inspection warrant under California Code of Civil Procedure Section 1822.50 et seq. before using a drone to conduct an investigation. The process for obtaining an inspection warrant is relatively straightforward. Unlike criminal search warrants under California Penal Code Section 1524, which require a showing of probable cause, inspection warrants under the California Code of Civil Procedure generally require a lesser showing of reasonable cause, which is typically defined as some plausible basis for believing that a violation is likely to be found that justifies further investigation or testing. It is worth noting that inspections conducted pursuant to a warrant are presumptively valid and should, in most cases, shield the local agency and its officers from liability.

Conclusion

Flying a drone over a problem property is undoubtedly an easy and effective way to evaluate and document the scope of a public nuisance and to provide up-close, aerial comparisons with neighboring properties. However, code enforcement officers must take the Fourth Amendment into careful consideration before implementing this technology. In most nuisance abatement situations, this will require a proper warrant.

For citations please click here

“The California JPIA puts on top-notch, relevant events,” said JR Ranells, Personnel Officer with the City of La Verne. “The Risk Management Academy is no exception, featuring a variety of information on important risk-related topics and extremely knowledgeable speakers.”

Ranells was one of 24 Authority members representing 20 agencies that gathered in Huntington Beach this January to learn building blocks and best practices for risk management at the 2020 California JPIA Risk Management Academy.

On the first day, California JPIA Assistant Executive Officer Norm Lefmann welcomed members and introduced an “Overview of Public Sector Risk Management.” Attendees learned about contractual risk transfer and insurance review, risk management evaluations and LossCAP action plans, ADA litigation, and understanding liability claims and loss control.

Day two featured sessions on incidents, accidents, and root cause analysis; workers’ compensation; safety management; and employment practices liability. Attendees partnered with the Authority’s regional Risk Managers for a scenario-based risk assessment that flexed their newly honed skills to identify and assess risks, select loss control/risk management techniques, and explain their scenario-based approach.

The Academy concluded with a two-part session led by organizational behavior expert Gerry Preciado. His program, “The Risk Manager as Collaborator: Building Productive Relationships within Your Agency,” identified processes and tools with which risk management professionals can build collaborative relationships to better address risk management issues.

“All the topics covered were relevant to my day-to-day job,” noted an. “I am going back to work with a lot of things to implement based on what we discussed.”

“It is always rewarding to see Authority members engage in training opportunities such as the Risk Management Academy that equips them with helpful information, tools, and resources,” said Michelle Aguayo, California JPIA Training Coordinator. “We strive to provide relevant, easily applicable training for our members. I’m thrilled that participants in the 2020 Risk Management Academy found the training so valuable.”

The Risk Management Academy was the first of eight academies available to Authority members in 2020. For additional details about each of the academies and to register, visit the California JPIA Academies webpage at cjpia.org/training/academies/

(Reprinted from CALPELRA Alert, January 2020)

 

On January 28, 2020, a California Court of Appeal overruled a trial court decision that had dismissed as untimely discrimination and harassment claims by an openly gay California Highway Patrol officer. In Brome v. California Highway Patrol,[1] the Court of Appeal relied in part on the fact that the officer’s workers’ compensation claim can toll the statute of limitations period for his discrimination/harassment claims.

Factual Background

Officer Brome worked for the CHP from 1996 to 2016, when he took an industrial disability retirement. Throughout much of his employment, Brome complained that he suffered discrimination and harassment from fellow officers based on his sexual orientation. In 2003, the Department of Fair Employment and Housing dismissed his harassment/discrimination complaint and issued a right to sue letter, but Brome did not file a lawsuit at that time.

In an effort to find a better working environment, Brome transferred to the CHP’s Solano County Office in 2008. From 2008 through 2014, Brome complained to his superiors that he suffered discrimination and harassment because of his sexual orientation including:

• Officers frequently made anti-gay comments;
• Other officers frequently refused to provide Brome with backup assistance during enforcement stops; and
• After he won the Officer of the Year award, the office did not post his photograph as it had regularly done other award winners.

Brome’s superiors investigated his complaints and disciplined at least one officer related to the failure to provide Brome with backup assistance. But the problems continued, and Brome’s stress and anxiety rose to such a level that he went on medical leave and filed a workers’ compensation claim in January 2015. After his workers’ compensation claim was resolved in his favor in October 2015, he took an industrial disability retirement in February 2016.

The Litigation and Trial Court Decision

In September 2016, over a year after he had last worked, Brome filed a complaint with the DFEH, and a lawsuit alleging sexual orientation discrimination and harassment, failure to prevent harassment, and retaliation. The CHP argued that the lawsuit should be dismissed on statute of limitations grounds because it was not filed within one year of the challenged actions as required by the FEHA provisions in effect at that time.[2]

The trial court agreed with the CHP’s argument and dismissed the case. The trial court rejected Brome’s arguments that the filing of his workers’ compensation claim in January 2015 should stop the clock on the one-year claim filing deadline, and also that the “continuing violation doctrine” should allow him to raise claims based on acts that occurred before the limitations period that were linked to conduct that occurred within the period. Finally, the court rejected Brome’s constructive discharge theory, finding that Brome failed to establish that he suffered intolerable working conditions that forced him to take a disability retirement in 2016.

Workers’ Compensation Claim Can Toll Discrimination Statute of Limitations

The Court of Appeal concluded that the trial court should not have dismissed Brome’s claims on statute of limitations grounds, because his discrimination/harassment claims could be tolled during the pendency of his workers’ compensation claim. Relying on a prior state Supreme Court decision,[3] the Court of Appeal found that a jury should be allowed to determine whether the three elements of the equitable tolling doctrine apply in this case:

1. Timely Notice: Did the workers’ compensation claim put the CHP on notice of the need to begin investigating the discrimination claim, because Brome’s workers’ compensation claim alleged work-related stress stemming from the alleged discrimination and harassment?
2. No Prejudice: Would the CHP be prejudiced by allowing the discrimination claim to proceed? The court noted that the second claim need not be identical to the first in order for the doctrine of equitable tolling to apply, instead, the test “focuses on whether the facts are similar enough that an investigation of one claim will allow collection and preservation of evidence concerning the other.”[4] A reasonably jury could find that the CHP’s investigation into “the source of Brome’s work-related stress should have preserved evidence concerning his discrimination claims.”[5]
3. Good Faith and Reasonable Conduct: Did Brome act reasonably and in good faith when he allowed 11 months to elapse before filing his complaint in light of the fact that he suffered years of harassment and hostility and was struggling to recover?

Continuing Violation Doctrine Can Allow Claims Based On Earlier Conduct

If the jury finds that the workers’ compensation claims tolled that statute of limitations, Brome would be able to raise claims based on conduct occurring on or after December 5, 2014. The Court of Appeal also found that Brome may also be able to rely on conduct occurring before that date based on the continuing violation doctrine. The continuing violation doctrine allows claims for conduct occurring outside the statute of limitations period to move forward if the claims are sufficiently connected to unlawful conduct that occurred within the limitations period.

The Court of Appeal concluded that Brome presented evidence sufficient for a reasonable jury to find that (1) similar kinds of discriminatory/harassing conduct occurred before and during the limitation period, (2) the acts occurred with reasonable frequency, and (3) the problems had not “gained permanence” before the limitations period – i.e., that the CHP’s actions did not make it clear that further efforts at informal resolution without litigation would be futile. In reaching this last element, the Court noted that Brome’s supervisors suggested that they wanted to work with him to resolve his concerns when Brome went out on leave in January 2015.

Constructive Discharge Claims Should Be Considered

Finally, the Court of Appeal disagreed with the trial court’s conclusions that Brome could not prove that his February 2016 disability retirement was a constructive discharge. The Court rejected the CHP’s arguments that Brome’s working conditions could not have been intolerable since he endured those conditions for many years.

A constructive discharge claim requires an employee to show that the “working conditions were so intolerable or aggravated that a reasonable employee would be forced to resign and that the employer either created or knowingly permitted those conditions.”[6] The Court noted that even if each individual incident was insufficient to force a resignation, “the accumulation of discriminatory treatment over time can amount to intolerable working conditions.”[7] And the Court found that Brome had presented sufficient evidence for a reasonable trier of fact to conclude that the CHP knowingly permitted the intolerable conditions and should have known that a reasonable employee in Brome’s position would resign.

The Court of Appeal did not resolve the question of liability in favor of Brome, but simply overruled the trial court’s grant of summary judgment for the CHP and returned the case to the trial court in order to allow the case to proceed.

Practitioner Tips

• Most California employers are aware of recent legislation extending the statute of limitations on FEHA claims from one to three years. This case is a good reminder that employers may be liable for discrimination and harassment that occurs even earlier through equitable tolling and continuing violation doctrines.
• Employers receiving workers’ compensation claims, particularly stress-related claims, should consider whether the underlying conduct alleged in the claim may constitute discrimination or harassment. Receipt of workers’ compensation claims can constitute notice of discrimination or harassment.
• Most employers are aware of the obligation to promptly investigate and address discrimination/harassment allegations. This case also highlights the importance of considering and addressing subsequent claims that may be raised after the initial claims have been resolved and disciplinary action taken.