Issue 109 - March 2021
The California JPIA will be holding its 26th annual Risk Management Educational Forum this fall, using digital technology to once again deliver the premier virtual risk management event.
The theme of this year’s Forum is “S.S. Authority: Voyage through the Sea of Risks.” A voyage on the sea of risks can have plenty of peril. It can be harsh and unforgiving, revealing everything done wrong. A journey without proper navigation might run adrift or even end in shipwreck. With unparalleled access to subject matter experts who can help you navigate your agency through the sea of risk, the Forum is the premier educational event for members of the California JPIA.
The Forum provides three days of educational opportunities, offering keynote speakers, panel presentations, and networking opportunities, with no registration fee for members. Attendees will learn the ropes from experts in legal liability, workers’ compensation, employment law, public safety, organizational thinking, governance, and legislation.
Don’t be left high and dry. Plan to embark with us this fall, with departure dates being announced soon. As your public agency partner, we are positioned to help you confront the challenges you face. Over the coming weeks and months, watch for more updates regarding the 2021 Risk Management Educational Forum and our plans to help you and your staff be smarter about managing risk.Print Article
The California JPIA has been asked by the California Society of Municipal Finance Officers (CSMFO) to provide training to its members. This training will serve as continuing education, focusing on an overview of public sector risk management and its practice in the local government setting.
CSMFO is California’s premier statewide association for finance professionals. This includes employees and elected or appointed officials who are involved in government finance for cities, special districts, and counties in California.
Expected to occur over two sessions, the goal of this training is to guide attendees through a general understanding of risk management, with specific concepts and practical guidance that will help an organization be smarter in managing risk.
Areas covered in the training include walking through the basic framework of public sector risk management; defining risk management as a process; understanding risk financing, risk retention, and risk transfer; exploring what risk management looks like in different sized organizations; identifying exposures that create significant costs, and explaining the factors that contribute to those costs; breaking down the life of a liability, workers’ compensation, and property claim; discussing reserves and claim tails; identifying loss control efforts that can be used pre claim; responding to incidents and accidents; utilizing root cause analysis; formalizing safety management; and creating a risk management culture.
Questions regarding this training can be directed to Norm Lefmann, Assistant Executive Officer.Print Article
The Authority’s first-ever virtual academy was a big success. Thirty member employees from 24 agencies attended the Authority’s Parks and Recreation Academy from March 9-11, 2021. Given the new online format and based on surveys from members who have attended academies in the past, Authority training staff changed the schedule format to three consecutive half-days. This format worked well for participants as it allowed them time to manage their daily job tasks, as well.
Michelle Aguayo, Training Coordinator, and Ryan Thomas, Training and Loss Control Specialist, hosted the academy, which included a fun, breakout room icebreaker on the first day. “Our goal for the virtual academies is to provide our online participants with as much of an in-person feeling as possible. I think we accomplished that with this first one,” expressed Ryan. Throughout the week, attendees were encouraged to send their feedback to the Authority on what they experienced. Michelle noted positive member feedback, including comments from Laura Lisack, Recreation Manager at the City of Lake Forest, who wrote, “Thank you so much for coordinating such a wonderful academy. Today’s topics and presenters were great and definitely shared a lot of valuable information. The information for special events on obtaining vendor insurance and how to be better prepared were all things that will definitely be a part of the City of Lake Forest’s checklist moving forward.” Laura went on to comment, “Also, the session on playground safety protocols and inspection guidelines was very informative and sparked some ideas to bring back to our Public Works team. This academy was VERY valuable!”
The Authority used a production crew to film and broadcast the event from the Authority’s La Palma campus. Most speakers were remote and used a video call-in for their session. They were also able to interact with and see the attendees on their screen during their presentation.
The next virtual academy, the Risk Management Academy, will be held April 12-14, 2021, and those who have a primary risk management responsibility and manage their agency’s risk exposure are encouraged to submit a registration request through March 31 on the event website. We look forward to seeing you, “virtually,” soon!Print Article
Last fall, the California JPIA presented risk management best practices to elected officials and municipal staff at the California Contract Cities Association’s Virtual Fall Educational Summit, the League of California Cities’ Virtual Annual Conference & Expo, and the Municipal Management Association of Southern California’s Virtual Annual Conference. That speaking streak continued this winter, as Authority staff facilitated panels at the League of California Cities’ Virtual City Managers Conference and the Public Agency Risk Management Association’s Virtual Conference & Expo.
The California JPIA, a proud Elite Partner of the League of California Cities, presented a panel at the 2021 Virtual City Managers Conference on February 1. During the session, “Vision 2020 in Hindsight: Train Wreck or Learning Opportunity,” California JPIA Deputy Executive Officer Alex Smith led a discussion among City of Hawaiian Gardens City Manager Ernie Hernandez, City of Poway Senior Management Analyst Izzy Murguia, and Alliant Insurance Services First Vice President Robert Lowe about the dynamic impacts of the COVID-19 pandemic on cities now and in the future.
Discussion points included changed business practices and evolving expectations for municipal services, as well as the challenges and opportunities afforded by telecommuting: “We’re in the middle of a generational shift,” said Lowe. “Some senior managers believe that employees need to be in the office every day, while the younger generation processes information the same way regardless of where in the world they are.”
The insightful conversation concluded with a question-and-answer session that addressed tax revenues and strategies for conducting remote home inspections.
California JPIA Insurance Programs Manager Jim Thyden and BakerHostetler Partner M. Scott Koller also presented a panel at “The Wild West of Risk,” the Public Agency Risk Management Association’s Virtual Conference & Expo, on February 4. During the session, “Cyber Security and Your Agency: A Growing Risk,” Thyden and Koller, a privacy and data security attorney, shared real-life tales of cyber security attacks and how agencies have responded.
“Cyber security is a growing threat to municipal agencies and to organizations worldwide,” said Thyden. “Numerous California public entities have been targeted and more will follow.”
The panelists educated risk managers in attendance of the need to be aware of the growing threat of cyber security, shared an overview of resources available to municipal agencies to defend against being targeted, and provided guidance and information about where to turn and what actions to take if targeted. The intermediate-level session also allocated time for a robust question-and-answer session to allow the audience to engage with the panelists regarding their own experiences.
“The California JPIA is proud to support the education and enrichment of municipal managers,” said Chief Executive Officer Jon Shull.Print Article
The California JPIA’s nascent human resources manager, Nikki Salas, formerly city manager of the City of Barstow, contributes first-hand perspective on the 24/7 responsibilities of a city manager as well as an extensive background in human resources and risk management. During her service as assistant town manager for the Town of Apple Valley, she received the 2015 California JPIA Capstone Award for Excellence in Risk Management.
In recognition of Employee Appreciation Day, March 5—commemorated with personal messages from Chief Executive Officer Jon Shull and gift cards for a virtual lunch—the California JPIA invited Salas to share how a mutually supportive staff culture adds value for members and discuss her plans for continuing to celebrate employees’ contributions to the organization.
Q: Why is it important for employees to feel appreciated?
Employees are an organization’s most valuable resource. When they feel valued, they give generously of their best effort. Feeling as if they are part of a larger team encourages employees to exceed their position functionality to help their coworkers. For example, when members call with questions about human resources, the senior risk managers know they can turn to me to share insights and best practices. Working together across the organization allows us to break down silos in the workplace and develop organic, mutually supportive resource teams.
Q: What factors contribute to the California JPIA’s culture?
Chief Executive Officer Jon Shull is very people-focused. He has cultivated that culture with the leadership team. Jon definitely believes people are the Authority’s most important asset. The Authority also has a very good, very stringent recruitment process to ensure getting the best of the best for the organization.
Q: How has employee cooperation or connectedness been affected by COVID?
It’s not exactly the same, but the Authority is still trying to build morale and togetherness. Staff events, such as a summer kickoff, fall festival, and winter service project, are hosted all year long to keep employees engaged and connected. Those events are now being held over Zoom. In addition to regular monthly staff meetings, activities have included virtual appreciation lunches and birthday celebrations. The Authority staff may never win a Grammy for its performance of “Happy Birthday to You,” but everyone’s laughing and smiling together.
Q: As a new employee with responsibility for human resources, how have you approached connecting with the team?
The California JPIA has a great strategy for introducing new team members: a one-on-one, 30-minute appointment with every single employee. I added my own little twist, asking not only what each employee does and how long they have worked there but also more probing questions that opened two-way communication. I’m keeping up with and building on that great orientation program.
Q: What would you describe as your present key priorities?
I’m focused on filling several positions that will provide internal support for the Authority team as well as external support for the members. That includes analyzing job descriptions and creating new positions. I’m also supporting the senior risk managers’ work on a human resources desk reference that will be a resource for not only the Authority but also its member agencies. COVID remains ever-present: What it means for the work environment, how to get back on campus, and what that will look like.
Q: Most of the Authority’s operations and programs have been remote for the past year. What factors will impact your return to campus?
My most important consideration is how the employees will feel about coming back. I think it will be important to reach out to the employees with open-ended questions that will enable unfiltered, anonymous feedback. I’ve already invited employees that feel comfortable doing so to share ideas. I want to give them a free forum and then synthesize the information to put together a return-to-work plan that takes their concerns into consideration.
Q: As a former city manager, you have unique insight into the structure and functionality of municipal agencies. How would you say the California JPIA benefits the members it serves?
The Authority is like an extra staff member or an added department that can be an additional resource to help cities get their jobs done. When I was in Apple Valley, the Authority’s risk manager, Alex Mellor, always provided extra resources and great ideas along with specialty skills that I could tap into when I needed them. Many insurance companies provide coverage, but the California JPIA provides people that come in and help. Cities are always looking for ways to save money. Joining the California JPIA adds value without an extra price tag. It’s like buying a car with unlimited lifetime maintenance built into the cost; you get so much extra added value.Print Article
California Appellate Court Rules that Certain Records Involving Peace Officer Misconduct Will Remain Public Regardless of When the Peace Officer Misconduct OccurredBy Paul Z. McGlocklin, Partner, Alfonso Estrada, Partner, & Sarah J. Martoccia, Of Counsel, Atkinson, Andelson, Loya, Ruud & Romo
Originally published on March 5, 2021. Reprinted with permission from Atkinson, Andelson, Loya, Ruud & Romo.
On March 3, 2021, the California Court of Appeal for the Second Appellate District ruled that the amendments made to Section 832.7 of the Penal Code, making peace officer-records dealing with use of force, sustained claims of sexual assault, or sustained claims of dishonesty—public, apply retroactively. (Ventura County Deputy Sherriff’s Association v. County of Ventura (March 3, 2021, B300006)___Cal.App.4th ___[2021 WL 803774].) This ruling is significant in that it reinvigorates California’s goal for increased governmental transparency in law enforcement.
California’s road toward increased governmental transparency began with the implementation of the Public Records Act (PRA) in 1968. The PRA’s goal was to create maximum disclosure of government conduct to the public resulting in higher governmental accountability. However, the real-world application of the PRA instead resulted in a developed tension between the public’s right to access records and privacy rights.
On January 1, 2019, Senate Bill (SB) 1421 became law amending Penal Code Section 832.7. The amendments to Penal Code Section 832.7 effectively allowed for the public release of peace officer records in three categories: (1) use of force, (2) sustained claims of sexual assault, and (3) sustained claims of dishonesty. The statute also provided an exhaustive list of the types of records to be disclosed, including, but not limited to investigative reports, photographs, audio and video recordings, transcripts, documents presented to the district attorney for review, and copies of disciplinary records. In developing this statute, the legislature attempted to strike a balance between the public’s right to access records and the officer’s privacy rights by limiting the access to peace officer records in only the three limited categories.
Codifying SB 1421 within the Penal Code brought a variety of reactions from peace officers, unions, the public, and public employers around California. While the public reacted to the implementation of SB 1421 by filing an increased number of public records requests, peace officers and unions fled to the courts all over California seeking to enjoin a retroactive implementation of Penal Code Section 832.7.
Ventura County Deputy Sheriff’s Association v. County of Ventura (VCDSA)
Ventura County Deputy Sherriff’s Association v. County of Ventura (“VCDSA”) was one of several lawsuits filed in reaction to amended Penal Code Section 832.7. The Ventura County Deputy Sherriff’s Association sued the County of Ventura seeking to enjoin the application of Penal Code Section 832.7 when it came to releasing records involving peace officer conduct and incidents occurring before January 1, 2019; the statute’s effective date.
At the trial court level, the court found in favor of the Ventura County Deputy Sherriff’s Association, granting a preliminary injunction preventing the disclosure of any peace officer records prior to January 1, 2019. The trial court conclusively stated that the amendments to Penal Code Section 832.7 only applied prospectively. The County of Ventura, through the Ventura County Public Defender, appealed the judgment.
On appeal, the Court found the trial court’s decision and application of Penal Code Section 832.7 had been misguided. The Appellate Court focused its analysis on determining whether the amendments to Penal Code Section 832.7 could be applied retroactively. The Court explained, “[T]he critical question for determining retroactivity usually is whether the last act or event necessary to trigger application of the statute occurred before or after the statute’s effective date. A law is not retroactive merely because some of the facts or conditions upon which its application depends came into existence prior to its enactment.” After implementing several methods of statutory interpretation such as analyzing the plain meaning of the statute, the legislative history, the legislative intent, and relevant case law, the Court determined the amendments to Penal Code Section 832.7 would apply retroactively.
The Court relied mainly on Walnut Creek in supporting its reasoning. (Walnut Creek Police Officers’ Assn v. City of Walnut Creek (2019) 33 Cal.App.5th 940 (Walnut Creek)). The Court relied on Walnut Creek not only because it is binding precedent on California Superior Courts as it was decided by the California Court of Appeal for the First Appellate District, but also because it set forth the argument that the new law did not change the legal consequences for peace officer conduct described in pre-2019 records. The court in Walnut Creek explained: “Application of new law is retroactive only if it attaches new legal consequences to, or increases a party’s liability for, an event, transaction, or conduct that was completed before the law’s effective date.” Thus, the Court in VCDSA agreed that the new law changed only the public’s right to access peace officer records, which did not create any new legal consequences for peace officers.
The Court of Appeal ultimately reversed the trial court’s judgment effectively dissolving the previously granted injunction and conclusively holding that Penal Code Section 832.7 applies retroactively.
In ruling on VCDSA, the California Court of Appeal for the Second Appellate District responded to California’s growing pressure for more transparency in law enforcement. The Court’s holding in this case serves as reassurance that the amendments made to Penal Code Section 832.7 will be applied retroactively despite peace officers’ pressure to limit the disclosure of records to only records after the statute’s effective date.
This ruling may also lead to a further increase in PRA requests for law enforcement records. Thus, it is important that public entities establish procedures and standards to minimize their liability when responding to these requests. Establishing and following an effective responsive procedure will allow public entities to identify and produce all responsive records in a timely manner. Public entities should consult legal counsel when deciding on the guidelines to establish these new procedures.
This AALRR publication 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.
© 2021 Atkinson, Andelson, Loya, Ruud & RomoPrint Article
Cities Are Not Liable for Lessees’ Exercise of Choice in Speakers – Ninth Circuit Affirms Limits on Private and Municipal Liability for First Amendment ViolationsBy Kathy Shin, Associate, and Gary W. Schons, Of Counsel, Best Best & Krieger LLP
Originally published on February 1, 2021. Reprinted with permission from Best Best & Krieger LLP.
The U.S. Ninth Circuit Court of Appeals affirmed that it takes more than some joint action with the government for a private entity to become a state actor subject to suit under the Civil Rights Act of 1871 (42 U.S.C. § 1983, “Section 1983”). Likewise, “the government does not, without more, become vicariously liable for the discretionary decisions of its lessee.”
Section 1983 creates civil liability for deprivation of an individual’s constitutional rights against any person acting “under color of state law.” Unlike government officers, private entities typically do not exercise state police powers and are not clothed with the authority of law.
In 1961, however, in Burton v. Wilmington Parking Authority, the United States Supreme Court developed a series of tests to identify when nominally private persons may be considered state actors. Courts use these tests to assess the liability of private entities under Section 1983. For example, courts may consider whether an organization is performing a public function, or whether a governmental entity, such as a city, is so entangled in private conduct as to necessitate the private entity’s compliance with the federal Constitution (the strictures of which only apply to government action). This latter concern for entanglement is the “joint action test.”
Last week, in Pasadena Republican Club v. Western Justice Center, the Ninth Circuit affirmed that joint action requires more than a contractual relationship between a private actor and a government agency. The case involved the Western Justice Center, a private nonprofit organization, which had agreed to rent meeting space in its building to the Pasadena Republican Club. Upon learning that the speaker for the Club’s scheduled event led a politically active organization that advanced positions on same-sex marriage and other social issues antithetical to the Center’s values, the Center canceled the rental agreement. Alleging viewpoint discrimination and other violations of the Club’s First Amendment rights, the Club filed a section 1983 action against the Center and the City of Pasadena, from which the Center leased its property. The Center moved to dismiss the action, and the City moved for summary judgment.
Upholding the Center’s motion to dismiss, the Ninth Circuit found that the Center’s lease agreement with the City failed to transform a private entity into a state actor. The court distinguished this case from the situation in Rawson v. Recovery Innovations, Inc., in which the court found that a private nonprofit hospital was a state actor potentially liable for due process violations under Section 1983. The “symbiotic relationship” necessary for joint action under Burton, present in Rawson, was absent here.
Specifically, the court found (1) the City and Center managed their operations independently (as the Center was a self-sustaining organization); (2) the City did not profit financially from the Center’s alleged discrimination and (3) the City did not participate in the Center’s cancellation of the Club’s speaking event. To be sure, the City derived some benefit from the relationship — as the lease required the Center to furnish the community with nonprofit legal services and other resources — but any exchange of mutual benefit fell short of the substantial interdependence required for state action.
Finally, in upholding the City’s motion for summary judgment, the court found that the Club’s alleged harm was not caused by City policy or practice, or by any City official with final policy-making authority, the prerequisites for municipal liability under Section 1983. Contrary to the Club’s claims, the City did not delegate policy-making authority over political speaking events in the City to the Center. The lease simply conveyed a possessory interest in the underlying property, which space the Center could rent at its discretion. Absent more, the government does not become vicariously liable for the discretionary decisions of its lessee.
Cities should be wary of entanglements with private entities creating liability. However, absent more, a lease agreement with a nonprofit advancing a civic mission creates no exception to the rule that municipal liability is limited to official action and state action is limited to state actors.Print Article
Chief Executive Officer Jon Shull discussed the consequences of massive jury awards, the difference between risk avoidance and risk management, and how a culture of risk management should be driven by leadership during the seventh episode of the PublicCEO Report, broadcast March 4 on PublicCEO.com.
The PublicCEO Report is a video and podcast series hosted by Ryder Todd Smith, president of Tripepi Smith and owner of PublicCEO. The series features long-format, unscripted conversations with local government thought leaders such as elected officials and municipal administrators on topics such as public policy, current events, and lessons learned.
After providing an overview of the California JPIA’s operations and history, Shull discussed differing philosophies for addressing municipal risk management. While some agencies approach contracting for services as a transactional relationship within which the agency purchases insurance and the insurance company pays claims, the California JPIA strives to develop partnerships with its member agencies that prevent claims in the first place.
“We want to be a risk management organization rather than a claims management organization,” said Shull. “We concentrate on trying to prevent risk rather than making the best insurance transaction.”
Shull also explained why strategic growth is important for municipal self-insurance pools like the California JPIA that aggregate small and medium government agencies to share risk and reduce impact: “One of the reasons we grow is because we want to spread the risk by adding good members with good loss histories,” he said. “Looking at prospective members from the perspective of current members and seeking out communities that consistently show a commitment to risk management is one of the most important things that we do.”
Other topics included how payroll can serve as a basic measure of exposure, joint and several liability in California, and three risk management mantras for city managers: “Slow down, really think about the liability associated with what you’re about to do, and transfer risk to those who are best able to control that risk,” according to Shull.
Shull joined the Authority in 1995 and took the helm as chief executive officer in 2002. He celebrates 26 years of service this year. Under his leadership, the Authority has transformed training from a simple member benefit to a holistic loss-prevention strategy, implemented a new prospective funding model that positioned the pool to maintain its strong financial position and provide stability to members, and earned Accreditation with Excellence by the California Association of Joint Powers Authorities and the Association of Governmental Risk Pools’ Advisory Standards Recognition.
PublicCEO is a local government publication that delivers news and insights to approximately 14,000 city managers, county administrators, public executives, and public employees every weekday, providing decision-makers with inventive ideas, timely perspective, and relevant news about California’s cities, counties, and special districts and the special public servants who lead them.
“Tripepi Smith and the California JPIA have similar cultures of sharing knowledge,” said Smith. “I am grateful to Jon for sharing his insights on how the Authority has helped its members navigate COVID-19 with our PublicCEO audience.”Print Article
Originally published on March 1, 2021. Reprinted with permission from Western City Magazine.
Aging out of the foster care system is difficult under normal circumstances and during a pandemic it is even harder. When foster youth reach age 21 they often find themselves without a strong support network or a place to live. According to the National Foster Youth Institute, 25 percent of former foster youth experience homelessness within four years of leaving the foster care system.
The city of El Centro has doubled down on its commitment to end homelessness and through a partnership with the Imperial Valley College (IVC) and the Imperial Valley College Foundation the city developed “Lotus Living Rise Above, Resilient Community.” This project provides permanent housing for 26 college students who are former foster youth experiencing homelessness. The college estimates that there are 210 self-identified homeless students and this project will prioritize housing students who have aged out of the foster care system.
“Lotus Living Rise Above, Resilient Community is a project that prioritizes housing our most vulnerable young adults, former foster youth,” said Imperial Valley College President Dr. Martha Garcia. “We are extremely grateful to the city of El Centro for believing in our dream to provide a safe living community to our most vulnerable students. The project is a reflection of hope and care. Collectively, we are enhancing the probability of success for these students and in turn they will contribute to social and economic development, which benefits us all.”
Construction on the 26 tiny homes wrapped up at the end of February and students will be moving in soon. The 170-square-foot single-occupancy homes include a kitchen, bathroom, desk, closet, patio, washer, and dryer. Students pay approximately $200 per month for rent and are required to complete 10 hours of community service per month to help maintain the premises.
“The IVC Housing program has given me something I never thought possible, a chance to continue with my education without worry,” said Magaly Scaia. “As a former foster youth and a single mother, I cannot express how grateful I am to Imperial Valley College and their team because they have not only ensured my academic success, but created a sense of community and safety for myself and my son. I hope to continue my education and be his role model as he grows up. I feel I am a true example of anything is possible through education, no matter your circumstance. I cannot wait to see the paths and realities the tiny homes will create for other students like me.”
El Centro was one of the first recipients of funding under Homekey, a statewide program designed to house those experiencing homelessness. The city received a $2.6 million Homekey grant for this project as well as $458,000 in Imperial County Homeless Emergency Aid Program funds, and $524,000 for two years of operation costs from Enterprise.
Initially designed as 13 tiny duplexes, the plan was changed to 26 free-standing tiny homes in order to expedite the permitting process. Municipal capital projects typically take years to develop, however, the city’s emergency declaration due to the coronavirus pandemic allowed the city to easily pivot and expedite the procurement process. The project’s success is due in large part to coordination among city departments, including community services, public works/engineering, legal, and the city manager’s office, as well as with external stakeholders.
There were several site improvements that were needed, including installation of water and sewer and connecting to other utilities such as electrical and communication. Facility upgrades also included a parking lot, walkways, lighting, fencing, landscaping, bioswales, and a dual open space/retention basin area. The Imperial Irrigation District, Spectrum/Time Warner Cable, and AT&T were among some of the entities that expedited their work to help ensure the project came online quickly.
“The quick completion of the tiny homes project is a true testament of collaboration,” said El Centro Mayor and Cal Cities President Cheryl Viegas Walker. “I am grateful that the city was part of this project, recognizing the lifetime benefits for IVC students who can now focus on their education in a stable and secure environment. The positive outcomes that will result from this project will be seen in the community for many years.”
The tiny homes are located on a city-owned 1-acre parcel of land that is near the college, making it easy for students to ride their bike or to take public transportation to their classes. The IVC Foundation is providing long-term maintenance and operation of the project site as well as offsite case management and wraparound services for the students who will be residing at the facility.
“El Centro and the Imperial Valley as a whole are resilient, and together we can overcome community obstacles such as poverty and educational attainment. The relationships forged during this time will not be forgotten and we will continue to work together for the betterment of Imperial Valley,” said El Centro Community Service Director Adriana Nava.Print Article
THE COURT REPORT
District Court Errs in Conflating Fourth Amendment Law on Police Use of Force with Broader Standards of California Negligence LawBy Daniel P. Barer, Partner, Pollak, Vida & Barer
Originally published on February 17, 2021. Reprinted with permission from Pollak, Vida & Barer.
In Tabares v. City of Huntington Beach, published February 17, 2021, the 9th Circuit Court of Appeals reversed the district court’s grant of summary judgment on the plaintiff’s claims for negligent use of force under California law. The defendant police officer observed the plaintiff’s decedent acting erratically on the street. The officer parked, exited his vehicle, and asked the decedent to stop walking to talk. The decedent refused. The officer ordered the decedent to stop multiple times. The decedent eventually turned toward the officer while speaking loudly and aggressively. The decedent approached the officer with fists clenched. The officer backed up while instructing the decedent to stop. The officer tased the decedent, with no visible effect. The decedent punched the officer in the face. The two fought. The officer put the decedent in a headlock. The officer forced the decedent to the ground and struck him several times. The suspect grabbed at the officer’s belt. The officer shouted, “Let go of the gun.” The officer felt something being taken from his belt. It turned out to be the officer’s flashlight. The officer stood, drew his gun, and retreated about 15 feet from the decedent. He saw the decedent holding what the officer should have known was the flashlight. The officer shot the decedent six times, shouted, “Get down,” and shot him a seventh time. The decedent’s mother sued the officer and the city under 42 U.S.C. § 1983 for violation of the Fourth Amendment, and asserted California law claims for negligence, battery, and violation of the Bane Act. The district court granted summary judgment to the defendants on all claims. It ruled that it rejected the negligence claim for the same reasons that it rejected her federal claims: after multiple ignored warnings and sustained combat, the officer was objectively entitled to an inference that no amount of warnings or non-lethal means would safely subdue the decedent. The plaintiff appealed only her negligence claim.
The 9th Circuit ruled that the district court had improperly conflated the standards for use of force under the Fourth Amendment with the broader standards that apply under California negligence law. While federal law generally focuses on the tactical conduct at the time of shooting, under California law the officer’s pre-shooting decisions can render his behavior unreasonable under the totality of the circumstances, even if the use of force at the time of shooting might be reasonable in isolation. Under these standards, a reasonable jury could conclude that the officer should have suspected the decedent was mentally ill, and unreasonably failed to follow police protocol dealing with potentially mentally ill persons before using force. Further, under either California or federal standards, a reasonable jury could conclude that the officer’s use of deadly force was unreasonable because the suspect was 15 feet away, was not approaching, and was armed only with the officer’s flashlight when the officer shot him without warning. Further, that the officer yelled a warning before firing the final shot, then fired before the decedent had time to understand or comply with the command, could lead a reasonable jury to find the number of shots was unreasonable.Print Article
The State Legislature has begun to draft several bills which may affect local government operations due to their effect on the liability and workers’ compensation fronts.
It is important to note that bills may go through significant revisions in the next few months, and members are encouraged to use the information below as a guide with the understanding that the bills are subject to change. The Authority will continue to monitor these bills and provide positions on them as each bill’s text becomes clearer.
AB 26 (Holden). Peace officers: use of force.
Summary: This bill would require law enforcement policies to require officers to immediately report potential excessive force, and to intercede when present and observing an officer using excessive force. The bill would additionally require those policies to prohibit retaliation against officers that report violations of law or regulation of another officer to a supervisor, and to require that an officer who fails to intercede be disciplined in the same manner as the officer who used excessive force. This bill contains other related provisions and other existing laws.
AB 84 (Ting). Employment: COVID-19: supplemental paid sick leave.
Summary: This bill would expand the definition of a covered worker for COVID-19 supplemental paid sick leave to any employees at any public or private entity. Additionally, the bill would entitle a covered worker to leave if, among other reasons, the worker is experiencing symptoms related to a COVID-19 vaccine that prevents the worker from being able to work, or is caring for an individual whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19. The bill would specify that a covered worker is entitled to 80 hours of leave per calendar year, unless otherwise specified. The bill would provide that these provisions expire on September 30, 2021, or upon the expiration of any federal extension of the federal Emergency Paid Sick Leave Act, as specified.
AB 334 (Mullin). Workers’ compensation: skin cancer.
Summary: Existing law provides, among other things, that skin cancer developing in active lifeguards is presumed to arise out of and in the course of employment, unless the presumption is rebutted. This bill would expand the scope of those provisions to certain peace officers of the Department of Fish and Wildlife and the Department of Parks and Recreation. Although this bill does not explicitly include parks and recreation employees with municipalities in its current form, extending presumptions to other classifications is dangerous and could potentially lead to that route.
AB 399 (Salas). Workers’ compensation.
Summary: This bill would impose new requirements on a medical provider network, including requiring a participating provider to participate at each location at which they treat patients for eight or more hours per week, on a monthly average. The bill would also prohibit authorizations or certifications issued by a carrier, claims administrator, medical provider network, or utilization review entity from providing instruction or imposing a requirement as to the location of where a treatment takes place or the provider who will perform the treatment. The bill would prohibit a vendor, provider, or group within the medical provider from being preferentially cited on an authorization or certification and would require the Administrative Director of the Division of Workers’ Compensation to impose a fine of $10,000 per authorization or certification that preferentially directs care within a medical provider network. The bill would require all treatment authorization or certification, adjuster correspondence, or billing explanation of review or explanation of benefits to include the medical provider network identification number, medical provider network name, and the name of the network covering the claimant provided in that correspondence. The bill would also require the administrative director to fine a medical provider network $5,000 per document that fails to include the required medical provider network information. The bill contains other related provisions.
AB 415 (Rivas). Employment: workers’ compensation.
Summary: This bill would define “injury,” for certain employees of a city, county, city and county, district, or other municipal corporation or political subdivision regularly exposed to active fires or health hazards directly resulting from firefighting operations, to include cancer that develops or manifests during a period in which the individual demonstrates that they were exposed to a known carcinogen while in the employment of the city, county, city and county, district, or other municipal corporation or political subdivision. The bill would establish a presumption that the cancer in those cases arose out of, and in the course of, employment, unless the presumption is controverted by evidence that the primary site of the cancer has been established, and that the carcinogen to which the person has demonstrated exposure is not reasonably linked to the disabling cancer.
SB 16 (Skinner). Peace officers: release of records.
Summary: This bill would, commencing July 1, 2022, make every incident involving use of force to make a member of the public comply with an officer, force that is unreasonable, or excessive force subject to disclosure. The bill would also require records relating to sustained findings of unlawful arrests and unlawful searches to be subject to disclosure. The bill contains other related provisions, including a civil fine not to exceed $1,000 per day for each day beyond 30 days that records subject to disclosure are not disclosed.
SB 98 (McGuire): Public peace: media access.
Summary: This bill would, if peace officers close the immediate area surrounding any emergency field command post or establish any other command post, police line, or rolling closure at a demonstration, march, protest, or rally where individuals are engaged primarily in constitutionally protected activity, require that a duly authorized representative of any news service, online news service, newspaper, or radio or television station or network, be allowed to enter those closed areas and would prohibit a peace officer or other law enforcement officers from intentionally assaulting, interfering with, or obstructing a duly authorized representative who is gathering, receiving, or processing information for communication to the public.
SB 216 (Dodd). Contractors: workers’ compensation insurance: mandatory coverage.
Summary: This bill, until January 1, 2025, would require concrete contractors holding a C-8 license, warm-air heating, ventilation and air-conditioning (HVAC) contractors holding a C-20 license, or tree service contractors holding a D-49 license to also obtain and maintain workers’ compensation insurance, even if that contractor has no employees. The bill, as of January 1, 2025, would require all licensed contractors or applicants for licensure to obtain and maintain workers’ compensation insurance, even if that contractor has no employees and would also prohibit the filing of a certificate of exemption.
SB 284 (Stern). Workers’ compensation: firefighters and peace officers: post-traumatic stress.
Summary: Existing law provides, only until January 1, 2025, that, for certain state and local firefighting personnel and peace officers, the term “injury” includes post-traumatic stress that develops or manifests during a period in which the injured person is in the service of the department or unit, but applies only to injuries occurring on or after January 1, 2020. Existing law requires the compensation awarded pursuant to this provision to include full hospital, surgical, medical treatment, disability indemnity, and death benefits. The bill would also make that provision applicable to public safety dispatchers, public safety telecommunicators, and emergency response communication employees, as defined. This bill appears to be a repeat of (or, at least, very similar to) SB 1047 from the 2019-2020 legislative session (which the Authority opposed).
The Authority will continue to monitor these bills, as well as others, and inform members throughout the remainder of the 2021 legislative cycle.Print Article