August 2015 – Issue 42-
Meet Our Newest Members Educational Forum: Managing Risk Like a Champion Spotlight on Precision Concrete Cutting Meet Your Carl Warren Team Yards are the parks in Villa Park, the small Orange County city that keeps its rural charm with four full-time employees Dress and Grooming Standards for California Public Employers…It’s a Bit More Complicated than
Meet Our Newest Members
The Authority is pleased to welcome its newest members, the Big Bear Fire Authority (BBFA) and the City of Monrovia. The Authority’s membership is composed of 117 municipal agencies throughout California: 93 cities, 18 joint powers authorities, and 6 special districts.
Big Bear Fire Authority
The Authority’s Underwriting Committee reviewed BBFA’s membership application and initial risk management evaluation report and recommended Executive Committee approval. Following input from members of the Board of Directors, the Executive Committee approved membership for BBFA beginning July 1, 2015.
The BBFA is a joint powers authority formed in 2012 by Big Bear Lake Fire Protection District (FPD) and Big Bear City Community Services District (CSD). The BBFA was formed for the purpose of consolidation and sharing of fire and medical operations, and personnel. The FPD (as a subsidiary district of City of Big Bear Lake) and CSD are both active members of the California JPIA. Effective July 1, 2015, BBFA assumed responsibility for fire and medical services currently provided to the Big Bear community by FPD and CSD. The BBFA is governed by a Board of Directors comprised of five elected members from the FPD and five elected members from the CSD.
Jeff Willis is Fire Chief for the Big Bear Fire Authority. Chief Willis shared, “The main goal is to achieve 100% accurate responses. This means sending the right resources to the right location. He further expressed, “One of the first achievements was to eliminate repetitive responses by sending the closest unit and most appropriate unit to an emergency incident.”
City of Monrovia
The Authority’s Underwriting Committee reviewed the City of Monrovia’s membership application and initial risk management evaluation report and recommended Executive Committee approval. Following input from members of the Board of Directors, the Executive Committee approved membership for the City of Monrovia beginning July 1, 2015.
Located 20 miles northeast of Los Angeles at the base of the San Gabriel Mountains, Monrovia is part of the San Gabriel Valley, just eight miles east of the City of Pasadena in Los Angeles County. This growing city of nearly 40,000 residents distinguishes itself from other communities with its dynamic small-town charm and collection of high-tech industry. Monrovia’s Old Town is the heart of the community — it’s where Monrovia gathers for civic events, for parades, and for the Friday Night Family Street Fair.
Monrovia is a full-service city with its own fire and police departments. The city has nine parks, a wilderness preserve, a skate park, a community center, a youth center, a new 28,000 square-foot library, and a historical museum.
The City of Monrovia was formerly a member of the Independent Cities Risk Management Authority risk management pool. Oliver Chi, City Manager, stated “After considerable analysis and review, the City of Monrovia determined that the best option to meet our risk management needs was to apply for membership with the California Joint Powers Insurance Authority. We are excited to have been accepted into the California JPIA insurance risk pool programs and are looking forward to being an active and participating member agency for years to come.”
Welcome Big Bear Fire Authority and the City of Monrovia!
Educational Forum: Managing Risk Like a Champion
Acknowledged Champions achieve that status only with the assistance of willing and able partners. The Authority has always considered its business partners to be of strategic importance. This is true with respect to how they jointly work with members in managing risk, and also pertains to the role they play in underwriting a significant portion of the Authority’s Risk Management Educational Forum.
This year is no exception, and these partnerships have allowed us to continue to deliver an exceptional educational experience for members from throughout the state of California.
Coupled with the Executive Committee’s ongoing support of waiving registration fees for members, sponsorships make a difference for those who would not otherwise be able to attend.
We deeply appreciate the role of our strategic partners in supporting educational opportunities to members.
Alliant Insurance Services Inc.
Carl Warren & Company
Cihigoyenetche, Grossberg & Clouse
Markel Corporation – Public Entity Division
York Risk Services Group, Inc.
Burke, Williams & Sorenson, LLP
Kutak Rock LLP
El Capitan Level
Allied World Insurance Company
AmWINS Insurance Brokerage of California, LLC
Brit Global Specialty USA
JLT Re (North America) Inc.
Kessel & Associates
Law Offices of Scott C. Haith, APLC
Poms & Associates
Safety National Casualty Corporation
Wells Fargo Insurance Services USA Inc.
Arthur J. Gallagher
Declues, Burkett & Thompson LLP
Great American Insurance Group
Hayford & Felchlin, LLP
Law Offices of Michael R. Nebenzahl, APC
McCormick, Mitchell & Rasmussen APC
PFM Asset Management LLC
Robin, Carmack and Gonia, LLP
Siegel, Moreno & Stettler, APC
The Pension Company
Wesierski & Zurek LLP
Daley & Heft, LLP
Goldman, Magdalin & Krikes, LLP
Law Offices of Barber & Bauermeister
Law Offices of S. Henslee Smith
Litigation Services, LLC
Norman Peterson and Associates
Pollak, Vida & Fisher
Risk Placement Services, Inc.
Wisotsky, Proctor & Shyer
Spotlight on Precision Concrete Cutting
Authority members face a continuous challenge to maintain safe sidewalks. In an effort to help members, earlier this year, the Authority entered into a strategic partnership with Precision Concrete Cutting (Precision), a sidewalk repair company that uses a patented cutting process to remediate sidewalk trip hazards. Precision was selected after participating in an Authority sidewalk inspection pilot program, in which the staff compared the sidewalk maintenance processes of cutting versus grinding. Precision’s data collection, which consisted of GPS coordinates, photos, maps, and other location identifiers, proved to be valuable and informative. In addition, the process of cutting was found to be cost-effective and resulted in a more attractive finish than grinding.
Precision is headquartered in Utah, and has been in existence since 1992. Since then, the company has branched out nationwide and has offices in locations that serve six major areas in California: Riverside/San Bernardino, San Diego, Northern California, Orange County, Long Beach/Southern California, and Los Angeles.
One of the ways in which Precision is partnering with the California JPIA to assist in mitigating trip hazards is by entering into a master service agreement that provides Authority members with favorable pricing for sidewalk assessment and repair services. These services are currently available to members, and the details of the agreement can be found in the document titled MSA Pricing and Services – Precision Concrete Cutting, which is located in the Resources and Documents library at cjpia.org. Note that this document is password-protected, and members will need their myJPIA login credentials in order to open the document.
Some members have expressed concern about their agency’s competitive bidding requirements. The Public Contract Code and Competitive Bidding document, also found in the Resources and Documents library, addresses this issue.
The last page in the Pricing and Services document contains contact information for all of Precision’s offices that service regions in which Authority members are located. When contacting Precision, please remember to mention your California JPIA membership in order to receive the pricing in the master service agreement.
For any questions involving Precision or sidewalk maintenance, contact your assigned Risk Manager.
Meet Your Carl Warren Team
Chris Kustra, Account Manager
Where some see roadblocks, Chris Kustra, Account Manager with Carl Warren & Company, sees opportunity. Kustra is a take charge, get things done leader who processes any and all challenges that come his way and comes up with well-organized and applicable solutions.
“I like to get things done,” says Kustra, who has served as the Account Manager for the Authority’s claims team for just over one year. “Anything our team can do to improve efficiency and provide better service to the Authority’s members is what our group strives for.”
After graduating from the University of California, Irvine and following a brief hedge fund career, Kustra joined Carl Warren & Company in 2005. He has worked on the Authority’s claims from the onset and also served as the Claims Manager for the cities of Newport Beach, Huntington Beach, and Cypress. As a Claims Manager he was tasked with not only handling the agency’s claims and litigation, but also managing the client relationship, and attending council meetings.
His considerable experience over the past ten years managing public entities and their claims and litigation made him the perfect candidate to fill the Account Manager position in 2014. Kustra brings a lot of energy to the position and says “I like to keep a positive outlook and give support and praise to our group for a job well done.” The quality of the claims and litigation management has remained constant with him at the helm. Kustra has implemented several new efficiencies that have sustained annual independent claims handling audit scores in the mid-nineties. Kustra reports, “The entire claims team is proud to work with such a great client in the California JPIA”.
When he is not working, Kustra stays busy spending time going to the beach and other local sites with his wife and two young sons. When he gets a little down time he enjoys a good glass of wine, cooking, and his beloved Pittsburgh Steelers.
Yards are the parks in Villa Park, the small Orange County city that keeps its rural charm with four full-time employees
(Reprinted from the Orange County Register, July 21, 2015)
The joke about Villa Park is that there are no parks in Villa Park. But that isn’t exactly true.
There just aren’t any official city parks. Private parks? That’s a different matter.
Consider that the average lot in this city is 20,000 square feet. Some residents have twice that acreage. Heck, their yards are parks.
City Manager Jarad Hildenbrand cruises the sweet streets of this city, where the median income is more than $150,000. He points to a house, laughs and shakes his head. “Look, that guy practically has a Little League field in his yard.”
We pass another house, really a mansion. In the backyard, nearly hidden behind trees, is a roller hockey rink. It’s not Ducks size, but it’s decent. Another house has a full-size tennis court. Another, a basketball court.
Understand, Hildenbrand celebrates the wonders of one of Orange County’s most exclusive cities. After all, he grew up going to school in Villa Park, played in many of these backyards.
Today, Hildenbrand is one of the city’s four full-time employees. That’s right. Four. Full-time. Employees.
One Grocery Store
Walking into City Hall is like walking into a small branch insurance operation because the city contracts out virtually everything, including police and fire. Hildenbrand steps out of his cozy office in back and comes around the counter. His office overlooks the maintenance yard, which is really just a small parking lot.
If you find Hildenbrand disarmingly young, there’s a reason for that. This city manager is 31 years old and earning his master’s degree.
He confesses he sometimes gets teased when he meets other officials: “Did your mother drop you off?”
“I completely lucked out,” Hildenbrand allows, flashing an I-still-can’t-believe-this grin. “I’m very fortunate, very blessed.”
Hildenbrand started as an unpaid intern less than a decade ago. He worked his way up to staffing the counter three days a week, eight hours a day. When he was 28, the City Council made him city manager.
OK, truth be told, Hildenbrand isn’t just the city manager. He’s also the city clerk. Depending on the day, he also might be the guy helping someone with the garbage or grabbing a shovel and clearing a small slide of rocks from a road.
Hildenbrand wouldn’t have it any other way. Of getting out and helping residents, he smiles. “You’ve just made their day.”
The best thing about the city? Its small-town, almost rural feel.
“Mike Knowles has worked maintenance for 30 years,” Hildenbrand points out. “He knows where every nut and bolt is in this city. He knows where every skeleton is buried.”
With 6,000 people spread over 2 square miles, Knowles doesn’t have to go far. And, again, that is the charm. Less is more.
The city has one shopping center, one grocery store, one ice cream shop.
“Everybody literally knows everybody,” Hildenbrand exclaims. “If there’s a helicopter flying overhead, people will call me to find out what’s going on.”
That kind of personal service is a hallmark of, well, City Hall. Call the city. A human answers, not an automated phone robot.
“Want to build a custom home?” Hildenbrand asks. “We’ll make it easy on you.”
That is true. Custom homes are the heart of this town.
We stop in front of one home. Every piece of the faux shake-shingle roof is custom crafted. The roof flows organically from bay window to turret. But it’s not just the seamless curves that please the eye.
Ripples, even a few waves, where the shingles might otherwise be in straight lines give a sense of movement, a feeling the home is as alive as the people who live there.
Another home has a copper dome. Another is built in Spanish Colonial style and extends along what would normally be at least two-thirds of a big city block. Another has an 11-car garage.
Houses in the hills are the most sumptuous. On clear days, many have views of Catalina Island. But the homes on the flats are gorgeous as well. Many sport $10,000 carriage-style garage doors and stunning landscapes.
Hedges are perfectly trimmed, some in spheres, some in the shape of inverted pails. Trees are manicured, looking like something in a Japanese garden. Drought-resistant plants have taken over many lawns, giving these homes a Santa Fe sensibility.
The arid look isn’t about appearance, however. Villa Park uses a lot of water to keep its big yards green, the most per capita of any Orange County city, according to the latest reports from the State Water Resources Control Board. The Serrano Water District, which serves the city, cut its May water use by 43 percent, below the state-mandated 36 percent. And further reductions are expected.
As we drive, it’s astonishing how many homes have fake grass that borders wide, sandy paths. It’s also surprising what residents keep in driveways.
One home has a big power boat in the driveway, something most HOAs ban. Another has an RV peeking above wood gates, also an HOA no-no.
Hildenbrand waves away the boat and explains that most of Villa Park has no HOA.
The owner, he says, usually stores it behind the house. Yes, Hildenbrand knows the guy by name.
“Code enforcement is reactive,” Hildenbrand reports. “If no one complains, then we’re not going to go after you. We’re big believers in property rights.”
Boat Parades, Too
Villa Park gets nearly all its revenue, $1.7 million, from property taxes. Hildenbrand chuckles: “It’s a good thing the homes are worth something.”
The city has no apartments, no multifamily units. But it does have a lot of schools – four to be exact. And with 4,500 K-12 students – two-thirds the size of Villa Park’s entire population – that is a traffic nightmare.
Villa Park High School is on Taft Avenue. A block north, there’s Cerro Villa Middle School. Across the street from Cerro Villa, there’s Serrano Elementary.
Hildenbrand points to freshly painted through lanes and turn lanes. He says the school district is a good neighbor and is trying to help with the congestion. But the city manager says what’s really needed is staggered school opening and closing times.
Still, the biggest project ahead for the city are areas without curbs and gutters. The city has few sidewalks. Instead, it has groomed trails. During rains, some areas flood.
Hildenbrand admits it will be a delicate dance between the city and homeowners when it’s time to employ city easements. The city will need to tear out trees and shrubs residents have planted to widen and improve some streets.
But the city manager is sure the council, contractors and residents will work things out. There’s a spirit of cooperation and a can-do attitude that goes back decades.
And if you don’t believe that, check out the city’s holiday boat parade. Where there’s a will, who needs water?
Dress and Grooming Standards for California Public Employers…It’s a Bit More Complicated than You Might Expect
by Kelly A. Trainer, Katy A. Suttorp, and Scott M. Nenni, Burke Williams & Sorensen, LLP
The U.S Supreme Court recently held that an employer could not lawfully reject a job applicant because her religious headscarf conflicts with the company dress code.1 In EEOC v. Abercrombie & Fitch, Abercrombie refused to hire an applicant to one of its stores because a hiring manager believed the applicant’s Islamic headscarf would conflict with Abercrombie’s distinct appearance standards. The Supreme Court ruled in favor of the EEOC, on behalf of the applicant, finding that an employer can be liable for discrimination based on religion under Title VII, when an applicant can show that a presumed need for religious accommodation to a facially-neutral appearance code was a motivating factor in the employer’s decision not to hire. With this decision, employers are once again examining the complicated questions of employee dress codes, appearance standards, and what has to be accommodated.
Employers’ efforts to implement grooming codes, regulating aspects of employees’ appearance such as hair length, piercings, and tattoos, often result in controversy. This tension is attributable to the inherent conflict in employees’ interests in expressing themselves through their individual appearance, and employers’ interests in ensuring an uniformly professional and appropriate appearance among all of their employees. On top of that, there are an ever-increasing number of laws that employers must be sensitive to when implementing dress and grooming standards.2 These questions can be particularly challenging for California’s public employers, who often face additional legal constraints beyond those of their private and/or non-California counterparts.3
This article seeks to briefly address some of the most common questions employers have been asking about these issues. However, given the complex and fact-specific nature of the legal issues involved, employers are reminded to raise concerns regarding specific employee issues with legal counsel or the agency’s Regional Risk Manager.
Can an Employer Have Different Standards for Men and Women in a Dress or Grooming Code?
While employers can have a recognized, but limited, right to “differentiate between men and women in appearance and grooming standards,”4 there are many fine lines and pitfalls when it comes to written dress codes. Consequently, as explained below, prudent employers will use gender-neutral language for dress codes and grooming standards.
Gender-Based Distinctions. Under federal law, dress codes are generally permissible when they impose relatively equal standards for both men and women, and do not interfere with an employee’s ability to perform his/her job.5 Applying those standards, slight gender-based differences will not doom a dress code.6 However, even under the more permissive federal standard, courts have held that appearance policies cannot legally enforce weight requirements that require women to keep a medium frame or smaller, but permit men to have larger frames.7 And appearance requirements intended to emphasize or enhance an employee’s sexuality, such as skimpy or tight-fitting uniforms, even if required for both men and women, will arguably violate the law.
Gender Stereotypes. When dress codes rely on “stereotypes” and are based on what is considered “acceptable” for men or women, they are more likely to violate the law. Similarly, employers cannot tell a woman that she might receive a promotion if her dress were a little more feminine.8
In practice, avoiding stereotyping can be difficult, if not impossible, when gender-based distinctions are made in a policy or as part of an employer’s enforcement of a policy. If only men are asked to wear ties, and only women are permitted to wear make-up, there is no way to avoid implicit stereotyping. As such, a more defensible workplace policy will use neutral language applicable to all employees, regardless of gender and will be applied accordingly. For example, employees should be encouraged to dress in “business attire,” where appropriate, and specific examples should use general language, without reference to gender (e.g. employees may wear business-appropriate make up vs. women may wear business-appropriate make up).
What are Some of the Additional Legal Issues under California Law?
Even if lawful under federal standards, California imposes additional requirements that may make gender-based distinctions in a dress code unlawful. For example, there are almost no circumstances in which women in California can be forced to wear a skirt, as employees in California have a statutory right to wear pants in the workplace.9
Moreover, California’s enhanced protections for gender identity and gender expression provide additional reasons as to why gender-neutral dress code policies are a better practice. In addition to sex and sexual orientation, gender identity and gender expression are protected categories in California, and are entitled to protection on that basis.10 Notably, this protection extends to “a person’s gender identity and gender related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth.”11 The FEHA also provides that employers may require employees to comply with “reasonable workplace appearance, grooming, and dress standards not precluded by other provisions of state or federal law” as long as the employer permits employees to “appear or dress consistently with gender identity.”12 With its focus on both reasonableness and stereotypes, this law provides further reason for employers to proceed with caution, particularly in considering gender-specific grooming restrictions. As Judge Kozinski observed in a dissenting opinion, “[C]ultural norms change; not so long ago a man wearing an earring was a gypsy, a pirate or an oddity. Today, a man wearing body piercing jewelry is hardly noticed.”13
What about Tattoos and Piercings – Can an Employer Place Limitations on Them in the Workplace?
Piercings. Employees may generally place restrictions on their employees’ visible piercings, unless the employee seeks a reasonable, religious accommodation. In one well-known case, a federal appellate court ruled in favor of a Massachusetts Costco that terminated an employee under its policy prohibiting eyebrow piercings.14 The employee had claimed that, as a member of the Church of Body Modification, her religious obligations prevented her from removing or covering her eyebrow ring, even during work hours, and that Costco was required to exempt her completely from the policy as a reasonable accommodation. The appellate court disagreed, finding that the appearance of its employees, and particularly those in customer service, reflect on Costco’s image, and as such, it would be an undue hardship for Costco to excuse an employee’s display of piercings that Costco believed would undermine that image.
Note that although many commentators have questioned the religious authenticity of the Church of Body Modification, public employers must be particularly cautious in making such an evaluation. As a governmental entity, decisions made by a public employer will likely implicate the First Amendment’s protections for religion (commonly referred to as the Free Exercise Clause and the Establishment Clause). In a variety of legal contexts, the Supreme Court has held that the First Amendment prohibits the government from taking sides in determining whether a religious belief is “false.”15 Thus, public employers should not deny requests for religious accommodation simply because the religion in question is unfamiliar.
As a further caution, California’s religious accommodation requirements, including the factors required to demonstrate undue hardship, are much more demanding for employers than the federal standards involved in the Costco case.16 California employers should proceed with caution in responding to an employee who seeks a religious accommodation to rules prohibiting piercings and tattoos, and prudent employers will give careful consideration to such requests. Certainly before denying any such request, employers should consult with legal counsel or their Regional Risk Manager.
Tattoos. As with facial piercings, policies prohibiting tattoos are subject to the requirements for religious accommodation. This protection includes all religious practices, eve those predicated on religions that some may argue are of dubious authenticity, such as a revived ancient Egyptian sect, practiced by only ten people, and requiring adherents to have visible tattoos at all times.17 An employer should consider whether it is obligated to grant a religious accommodation with regard to visible tattoos, and should consider carefully what such an accommodation should reasonably entail under the specific factual circumstances.
In addition to religious accommodation concerns, tattoos present a variety of other, often conflicting, legal concerns. On the one hand, with some exceptions and limitations, employers can require their employees to cover up visible tattoos while on duty. Moreover, they can specifically restrict tattoos deemed “offensive.” Additionally, failure to prohibit an employee’s “offensive” visible tattoos may give rise to hostile environment claims from other employees.18
On the other hand, one of the complications faced by public employers is that the evaluation of what is an “offensive” tattoo implicates the First Amendment. Tattoos have been recognized by the Supreme Court as a form of expression protected by the First Amendment.19 As a result, when a public agency restricts some tattoos, but not others, it is engaged in a content-based evaluation of the employee’s speech, which is subject to heightened legal scrutiny. While not as highly protected as speech by members of the public, speech by public employees does carry some First Amendment protection, even when on duty.20
Best Practices. Employers can place reasonable workplace restrictions on visible tattoos and piercings. To avoid running afoul of the First Amendment, the most conservative restriction will be one that applies to all tattoos and piercings, rather than one that is based on the “offensiveness” of the tattoo or piercing. Thus, an employer drafting a policy that prohibits tattoos would be on firmer legal ground to require that all visible tattoos be covered when an employee is on duty or in uniform, as opposed to requiring that an “offensive” tattoo be covered. In addition to the First Amendment concerns, employers must also remain sensitive to religious practices, and be open to granting reasonable accommodations to any policy that prohibits tattoos or piercings when the prohibition restricts an employee’s religious practices. Consequently, as with any dress or grooming policy, employers should consider expressly stating that an employee may request an exception to the policy when application of the policy would impact their protected characteristics. Any such request should be carefully reviewed with legal counsel to ensure compliance with the various implicated laws.
What About Beards?
While private employers may have more leeway to impose dress codes relating to facial hair, public employers may face constitutional limitations in doing the same.21 In addition, beards can be entitled to religious protections. As will be discussed below, California has recently adopted a heightened standard for an employer to establish that a religious accommodation would constitute an undue hardship.
A common employer concern is that a beard can present a safety concern (such as when an employee would be required to wear a respirator).22 Absent safety reasons that cannot be otherwise reasonably accommodated, employers should consider permitting employees to have neatly trimmed beards rather than be completely clean-shaven. Where there are safety concerns, those safety concerns should be clearly articulated in policy and continually re-examined on a case by case basis in the light of particular requests.
Are the Standards for Police Department Employees Different?
A significant number of decisions involving legal challenges to grooming and dress codes in the public sector involve police officers. Under federal law, police departments have traditionally enjoyed significantly more leeway than other public employers when it comes to imposing standards aimed at uniformity, including strict grooming standards.23 Courts often place great weight on the paramilitary nature of police, reasoning that police departments have a unique interest in subordinating personal preferences to the overall group mission, and promoting “discipline, espirit de corps, and uniformity.”24 Furthermore, courts have recognized that police departments have a reasonable interest in not offending, or appearing unprofessional before, the public it serves.25 Put simply, in the courts’ eyes, police are different.26
Applying these standards, federal courts have ruled that on-duty police officers may be required to cover up unprofessional or offensive tattoos.27 In addition, courts have determined that police officers may be prevented from wearing certain items of clothing where the department determines that they pose a safety hazard.28 However, as discussed below, the continued viability of the reasoning in these prior cases as applied to requests for religious accommodation may need to be re-evaluated in light of legislation enacted recently in California.
Notably, recent revisions to the Fair Employment and Housing Act impose a heightened standard for California employers seeking to justify denial of requests for religious exemption, including for police uniform and grooming codes. This legislation was passed at the urging of, among others, the Sikh Coalition.29 Prior to these reforms, Sikhs had significant trouble obtaining work as prison guards or police officers, unless they shaved their beards and removed their turbans in accordance with appearance requirements.30 Generally, this meant they were excluded from law enforcement professions.
The new law changed the definition of “religious creed” to expressly include “religious dress practice” and “religious grooming practice” and clarified that the same “undue hardship” standard, by which denial of reasonable accommodation of disability is evaluated, applies equally to denial of religious accommodation. Accordingly, an employer defending a denial of a requested religious accommodation must demonstrate that the request required “significant difficulty or expense,” and take into account various factors such as “the nature and cost of the accommodation.”
Thus, while police departments have historically been able to lawfully prohibit officers from having beards, or wearing items such as turbans, Muslim headscarves,31 or crosses32 on or with their uniforms, this will no longer be the case in California unless an employer can meet the heightened burden to justify denial of these religious accommodations. In practice, this means that employers may find that many religious practices, even those involving dress or grooming standards for police employees, require some form of reasonable accommodation. Over time, as appearance standards relax and change due to religious accommodation, as well as shifting cultural norms, the weight previously accorded by the courts to the need for “uniformity” in police departments may also lessen in other contexts. In fact, federal courts have already applied similar reasoning to find that if an agency grants an exception to a “no-beards policy” for health reasons, it cannot lawfully refuse to grant such an exception when requested on religious grounds.33
As the foregoing discussion demonstrates, much remains unresolved regarding permissible parameters for employers seeking to determine when they may lawfully prohibit or restrict employees’ dress, grooming, piercings, and tattoos. Furthermore, the analysis of these issues is complicated and highly fact-specific, often involving reconciliation of a variety of legal obligations. At a minimum, these considerations counsel against implementing dress or grooming codes that are inflexible, depend on stereotypes, and do not offer at least the prospect of accommodation for affected employees. Also, apart from reducing exposure to liability, employers often find as a practical matter that employees are more likely to abide by appearance standards that take into account shifting cultural norms and apply reasonable standards that recognize the variety of work environments that can exist within the same agency.
Click here for the full article with citations.
Administrative Agencies May Decide Pitchess Motions
On December 1, 2014, the California Supreme Court held, in Riverside County Sheriff’s Department v. Stiglitz,et al. (Stiglitz), that a hearing officer in an administrative appeal of discipline of a correctional officer has the authority to rule upon a discovery motion for peace officer personnel records, commonly referred to as a Pitchess motion. As to a prior decision in Brown v. Valverde, (2010) 183 Cal.App.4th 1531, which held that only judicial officers may rule on a Pitchess motion, the Supreme Court limited the application of that ruling in limited circumstances.
Pitchess motions are used to determine whether a party to a proceeding may have access to confidential personnel information about peace officers. Although usually such motions arise in court in civil or criminal proceedings, the issues may also arise in administrative proceedings related to employee discipline.
Although Superior Court judges routinely handle such motions in criminal and civil cases, there has been a question whether non-judges, who preside over administrative proceedings, may rule on such motions. The California Supreme Court has now ruled definitively that they may.
In Stiglitz, Kristy Drinkwater was terminated from her position as a correctional deputy at the Riverside County Sheriff’s Department (the Department) for falsifying her payroll forms. Drinkwater appealed her termination pursuant to a memorandum of understanding (MOU) between the Riverside Sherriff’s Association and the County that provided for an administrative appeal. Drinkwater presented a disparate treatment claim, arguing that her termination was disproportionate to her misconduct because other Department employees who had falsified time records received lesser punishments. At her administrative appeal, hearing officer Jan Stiglitz heard Drinkwater’s motion for discovery of disciplinary records of other Department personnel who had been investigated or disciplined for similar misconduct. Under the Pitchess motion, Stiglitz clarified that the impetus was on Drinkwater to present the names of other Department personnel and not on the Department to search its records for similar disciplinary cases. After identifying specific employees whose records were sought, Stiglitz found that good cause existed and granted Drinkwater’s Pitchess motion.
The Department filed a petition for a writ of administrative mandate seeking to compel Stiglitz to vacate his decision. The superior court agreed and ordered Stiglitz to reverse the prior order. Subsequently, a new hearing was ordered after the Sheriff’s Department intervened and requested a new hearing. A new hearing was conducted and the superior court denied Drinkwater’s discovery motion again. The superior court granted the department’s mandate petition denying the Pitchess motion. Drinkwater and the Sheriff’s Association sought review and the Court of Appeals reversed the superior court’s finding that Pitchess motions could only be ruled on in the superior court. The Supreme Court granted review of the case.
Pitchess Motions and Administrative Hearings
The California Supreme Court held that a Pitchess motion can be filed with an appropriate administrative body pursuant to Evidence Code section 1043 and that the Legislature intended to allow administrative hearing officers to decide such motions without court intervention.
Evidence Code section 1043(a) reads in part: “In any case which discovery or disclosure is sought of peace or custodial officer personnel records…, the party seeking the discovery or disclosure shall file a written motion with the appropriate court or administrative body…” The Supreme Court interpreted this language to mean that Pitchess motions may be filed in the appropriate court or administrative body. Under Evidence Code section 1043, an applicant must make an initial showing of good cause to begin the discovery process.
Once good cause is shown, Evidence Code section 1045 dictates the conduct of the resulting hearing in camera. The Department argued that Evidence Code section 1045 repeatedly refers to the court as the entity that must preside over an in camera review, so the references to the court in Evidence Code section 1045 should outweigh the reference to the administrative body in Evidence Code section 1043. The Supreme Court reviewed the language of Evidence Code section 1045 and reasoned that if the legislature intended for review to be handled only by a court, then that section would have included a transfer mechanism from an administrative body to the court. The Supreme Court concluded that the lack of a transfer mechanism demonstrates that administrative officers can rule on Pitchess motions without such transfer.
Furthermore, the Supreme Court distinguished Brown, supra, from Stiglitz, based on the balancing of a litigant’s discovery interest with an officer’s confidentiality interest. In Brown, the Fourth Appellate District excluded Pitchess discovery from a Department of Motor Vehicle administrative hearing where a hearing officer determined whether a driver’s license must be suspended following an arrest for driving with a blood alcohol level above the legal limit. Allowing a Pitchess motion in that specific proceeding would frustrate the legislative intent to quickly remove unsafe drivers from the road through an administrative procedure. Whereas in Stiglitz, the Department acknowledged the discovery Drinkwater requested was relevant to her disparate treatment claim and did not call into question the credibility of officers whose personnel records were requested for review. The Supreme Court found that confidentiality safeguards were in place in Stiglitz because the personnel files were not subject to public disclosure. The Supreme Court further added that the analysis must evaluate whether the records being reviewed can be obtained from other records maintained by the employing agency in the regular course of agency business.
During an administrative discharge proceeding, a hearing officer ordered the Sheriff’s Department to turn over personnel records of other deputy sheriffs in connection with the appellant’s claim that she had been subjected to disparate treatment. A Superior Court judge set aside the ruling, but the Supreme Court reversed. Allowing hearing officers to decide Pitchess motions “allowing administrative hearing officers to determine Pitchess motions in this context furthers the goals of the POBRA and maintains the balance between an officer’s interest in privacy and a litigant’s interest in discovery.”
The Effect on the Agency
Pitchess motions can be brought at an administrative hearing when relevant, and if good cause is found, the personnel files of peace officers might be subject to review by an administrative hearing officer. To protect the privacy rights for those officers in their personnel information, the employer should always request that files be reviewed in camera and a protective order be issued preventing use of that information in any other proceeding or manner.
Drought Risk Management Implications
by Alex Mellor, Risk Manager
Earlier this year, Governor Jerry Brown issued an historic executive order directing cities and towns across California to take all necessary actions to prepare for water shortages and cut water use by 25 percent. This order marked the first time in California history that water restrictions were made mandatory. While local agencies have rightly been focused on taking actions to comply with the new water restrictions in order to contribute to the state’s recovery and avoid potential fines, it is also important to evaluate these actions and their effects through the prism of risk management.
It is recommended that member agencies analyze and evaluate whether modifications to facilities, landscaping procedures, or other operations intended to reduce water usage may uncover existing hazards or create new ones. The following are examples of situations common to many members of the California JPIA:
- When reducing watering of lawns and other open areas, ensure that hazards that are uncovered or created (i.e. surface deviations, exposed sprinkler heads) are addressed immediately. This risk can be mitigated by regularly inspecting the areas in question, documenting those inspections, and retaining the inspection records for a period of at least 3 years.
- When draining fountains and other water features, ensure that signs are posted and barriers installed restricting access. Such empty water features can be an attractive nuisance to skateboarders and other urban recreationalists. Signage and barriers making it clear that access is not permitted will strengthen the defense in the event of an injury and subsequent liability claim.
- When replacing turf with synthetic surfacing, ensure that transitions from one surface to another are smooth and free of trip hazards. This can best be accomplished by requiring that the contractor installing synthetic surfacing also be responsible for developing smooth transitions. Also, users of sports fields and other areas where surfaces are being replaced should be made aware of the change in advance to provide enough time to obtain appropriate equipment (i.e. footwear).
As California heads into a new water year (October 1 to September 30) with a potential fifth year of drought and expectations of El Niño impacts in play during the winter, questions mount on what can be expected of winter temperatures, precipitation and snowpack for California. State Climatologist Michael Anderson issued the following statement on potential El Niño conditions: “California cannot count on potential El Niño conditions to halt or reverse drought conditions. Historical weather data shows us that at best, there is a 50/50 chance of having a wetter winter. Unfortunately, due to shifting climate patterns, we cannot even be that sure.”
If you have any questions regarding the above, or for further information, please contact your Regional Risk Manager.
Managing Volunteer Risks
by Jim Gross, Senior Risk Manager
Volunteers are of great value to public agencies, and they hold a special place in the hearts of the communities they serve. While volunteers are a great asset in most circumstances, the risk exposures can be significant and should be actively managed. Managing volunteer risks starts with the recruitment process. Volunteer positions should be well defined, and physical demands identified. Volunteers should be formally oriented to your agency’s way of doing business, rules, operating procedures, and safety protocols/training. All of this should be well-documented, and similar in manner, to the way paid employees are recruited.
It is important to understand that there is little difference in liability exposure arising from volunteers vs. employees. In fact, because volunteers are not always properly trained, oriented, directed, managed, and controlled, liability exposure is often greater than that arising from employees. Fortunately, members are covered under the Authority’s Memorandum of Liability Coverage for losses arising from volunteer activities; providing the volunteer is acting on behalf of the member, and at the member’s direction and control. Therefore, to mitigate liability exposures arising from the use of volunteers, they should be recruited, screened, oriented, trained, supervised, and controlled in much the same manner as employees. For example, based on the nature of the volunteer duties, a criminal background check should be performed; and, if volunteers will be driving on behalf of the agency, their driving record should be evaluated and monitored.
It has long been the Authority’s recommendation to its members to either extend workers’ compensation benefits to volunteers for injuries that occur while performing volunteer duties or to have volunteers sign a waiver similar to the waiver participants must sign in order to participate in recreational activities. Both risk management techniques are intended to mitigate loss severity arising from the use of volunteers. It is equally important to align volunteer assignments and duties to their respective interests, talents, and physical abilities or limitations. Failure to do so may result in catastrophic impact to your agency’s loss history, and affect future cost of coverage for years to come. The most severe workers’ compensation losses, for some members, stem from volunteer injuries.
Many members have vibrant volunteer programs with opportunities for volunteers of all age groups. When employing minors, members are encouraged to obtain authorization from their parent, or legal guardian. Authorization should include the parent/guardian’s consent to seek medical care and treatment in the event their child is injured while volunteering/working for your agency. Earlier this year, a minor was denied medical treatment by a physician at an industrial clinic because the parent or guardian had not provided an authorization. The injured minor was sent home and medical treatment and care was delayed.
The Volunteer Handbook Template is available to assist Authority members in management of volunteer risks, and is easily accessed at: http://cjpia.org/risk-management/resources-and-documents.< Back to Full Issue Print Article