Issue 82-December 2018
We live in an era of unprecedented change and innovation. We prefer to define ourselves by looking into the future and figuring out what is coming, and not where we come from. But our history does matter. It has been said that he who controls the past controls his future. The Authority commemorated its 40th anniversary on April 1, 2018. On that day forty years ago, a group of 33 California cities began a plan to combat the high costs of liability insurance. Those 33 cities formed the Southern California Joint Powers Insurance Authority (SCJPIA) under a joint powers agreement, an innovative concept that was one of the first of its kind in the nation.
Year End Message
By Jonathan Shull, Chief Executive Officer
We live in an era of unprecedented change and innovation. We prefer to define ourselves by looking into the future and figuring out what is coming, and not where we come from. But our history does matter. It has been said that he who controls the past controls his future.
The Authority commemorated its 40th anniversary on April 1, 2018. On that day forty years ago, a group of 33 California cities began a plan to combat the high costs of liability insurance. Those 33 cities formed the Southern California Joint Powers Insurance Authority (SCJPIA) under a joint powers agreement, an innovative concept that was one of the first of its kind in the nation.
This past year Authority staff worked to chronicle our history. This effort included interviews with past and present Board Members, agency administrators, and other individuals that have guided us along our path. Staff researched issues that shaped us and pored through archives to frame the decisions that were made. This was an arduous task that culminated in the creation of a 40th anniversary book. The commemorative anniversary book will be sent to members, strategic partners, and associates in January.
Since the beginning, the Authority has placed a strong emphasis on meeting the needs of its members. Over the years, the Executive Committee has pledged resources that have enhanced programs and services that fulfill a commitment to unparalleled risk management solutions and services. As we have prepared the anniversary book, we have reflected on the relationships that have developed with the members in the delivery of these programs and services. We have also recognized the many lives that have been touched by the work that we do as a staff. With our members, we have made communities safer for citizens and agency employees. We have also helped members save money on their insurance costs that can be better spent serving their constituents.
We are grateful for the support of the members of the past year, and as we look to the future, we appreciate your continued engagement with the California JPIA.
We wish you a very happy holidays and a great New Year.
History of the Risk Management Educational Forum
In 1996, the Authority held its first Risk Management Conference in San Diego at the Doubletree Hotel in Horton Plaza. The conference, the precursor to the annual Risk Management Educational Forum, had the theme of Stay Out of Court, and featured 27 speakers, with Gordon Graham as the keynote speaker. Graham’s presentation was on the “Five Pillars of Risk Management”, in which Graham used an overhead projector and markers to make his points.
Existing training at that time didn’t address issues that were specific to public agencies. The Authority recognized this, and developed a comprehensive conference that provided risk management training for the unique exposures that its members had. By creating a conference aimed at public agencies, the Authority was able to look at its members’ areas of losses and present educational sessions geared towards mitigating those losses.
With the success of the San Diego conference, the Authority decided to continue hosting an annual educational conference for members and chose the Hyatt Regency in Monterey, the Fess Parker Resort in Santa Barbara, and the Hotel Del Coronado in San Diego as the next three locations for the event.
After a few years, the conference/forum was restructured to include a half-day workshop prior to the conference and events that promoted networking and a sense of camaraderie among Authority members. A golf tournament was also added in the hopes that the tournament would encourage more city managers and council members to attend.
With the continued evolution of the forum, the pre-forum half-day workshop became what is now known as the Opening Session, a raffle was added to the last day of the forum, and speakers were selected to include more subject matter experts in the field of risk management.
The Risk Management Educational Forum is now the premier educational event of the year for members, providing them with an opportunity to interact with each other and Authority staff face-to-face in an environment that is both educational and fun.
Brochures from past Risk Management Educational Forums
2019 Forum attendees enjoy dinner while networking
Liability Third-Party Claims Administrator Audit
By Paul Zeglovitch, Liability Program Manager
In an effort to ensure a high level of liability claims administration, the California JPIA conducts an independent audit of our liability third-party administrator, Carl Warren and Company, on an annual basis. For the past six years, we have engaged Independent Consulting and Risk Management Services (ICRMS) to evaluate the proficiency of our liability claims handlers and provide an evaluation of our liability program as a whole.
ICRMS President Mark Nestor has extensive experience, with over 30 years in the development, daily management and operation of liability and workers’ compensation programs. Mark has been responsible for the development and management of six public entity pools with annual premiums in excess of 100M. While Mark’s skilled claims evaluators are reviewing liability claim files, Mark meets with the TPA Account Manager, key TPA staff and the Authority’s Liability Program Manager to put his finger on the pulse of the health of the program and where improvement is possible. At the conclusion of the week-long audit, ICRMS provides a detailed analysis of the TPA’s claims handling proficiency, as well as recommendations for improvement to the program, which are tracked year to year. For this year, Mark reported that the Authority and its TPA have completed over 60% of past recommendations made. This number is noteworthy, as not all recommendations are able to be immediately adopted for a variety of reasons.
As it relates to the claim file portion of the audit, a thorough analysis is done on coverage evaluation, investigation, damages evaluation, litigation management, resolution, documentation, supervision, reporting and reserving. In addition, each file handler is scored and his or her cumulative scores are then tracked on a yearly “roll-up” to track historical performance.
When all was said and done, the audit revealed an overall score of 97% for 2018. This follows a score of 98% in 2017 and scores ranging in the 90% range during the prior four years. Carl Warren & Company has been a trusted partner since the inception of the California JPIA, so we are pleased by the results. We invite members to share their feedback regarding our liability claims administration efforts at any time, by contacting our Liability Program Manager, Paul Zeglovitch.
York Risk Services Group Score 94% on Annual Audit
By Jeff Rush, Workers’ Compensation Program Manager
Each year the Authority measures the claims handling performance of its workers’ compensation third-party administrator, York Risk Services Group, against performance standards set by the Authority with the assistance of its auditor.
For the second consecutive year, the Authority utilized Jim Bankson to conduct the annual audit of its workers’ compensation program. Bankson is the president and founder of Northern Claims Management LLC, based in Santa Rosa, California. He has worked extensively with public agency clients and has a comprehensive understanding of the complex workers’ compensation environment in California.
Bankson conducted the audit at York’s Rancho Cucamonga office in August of this year. The audit included a review of a random selection of 125 claims including indemnity, future medical, and medical only claims, with an emphasis on key performance indicators established by the Authority, compliance with California State statutory requirements, and industry best practices.
Bankson presented his findings to the Authority’s Executive Committee at its meeting on October 24, 2018. Bankson reported York received an overall score of 94.01%, a slight reduction from last year’s 94.62% score. Some of this year’s highlights include the following:
|Key Performance Indicator||Rating|
|Pending Claims and Coding||100% up from 80%|
|Three Point Contact||94% up from 82%|
|Compensability Determination||97% (same score as last year)|
|Initial File Review Coding||100% up from 97%|
|Initial File Review Reports||97% up from 92%|
|Subsequent Benefit Payments||96% up from 73%|
|Member Settlement Notice-Follow up||92% up from 23%|
This marks the ninth consecutive year the Authority’s dedicated team at York has scored 90% or higher on the annual audit. Congratulations York Risk Service Group! Thank you for your valuable contribution to the success of the California JPIA’s workers’ compensation program. We invite members to share their feedback regarding our workers’ compensation claims administration efforts at any time, by contacting our Workers’ Compensation Program Manager, Jeff Rush.
A Look Back: 2018 Academies
By Michelle Aguayo, Training Coordinator
The Authority hosted eight successful academies in five regional areas. Each academy was held in a hotel setting away from the office, over multiple days, with a variety of speakers that presented relevant topics to assist the attendees in the different areas of public service.
The Authority’s Risk Management Academy kicked off in January with 23 people representing 20 member agencies attended the inaugural academy. The new academy was held in Carlsbad and received excellent reviews. Hanne Thordahl with the City of San Clemente shared, “I’ve been very impressed with this academy. All the material is very relevant and interesting. I think this is a fantastic idea for someone who is either new to risk management or has been in it for a long time.” An evening reception was held on the first day to welcome attendees and allow for networking opportunities with each other and Authority speakers and staff. The next Risk Management Academy is scheduled for January 22-24, 2019 in Paso Robles.
The annual Parks and Recreation Academy was held in February in Paso Robles. One of the Authority’s original training academies, the Parks and Recreation Academy provided member attendees with twelve sessions that focused on reducing risk in public agency programs, facilities, playgrounds, and aquatic centers. A new session added was Managing Social Media Risks presented by defense panel attorney Scott Grossberg. “There were so many takeaways for my community. Scott Grossberg was amazing,” remarked Anne Turner from the City of Claremont. Vicky Blethen, Recreation Manager with the City of Lake Forest, commented “Great topics! I’ve been in the field for a long time and I still got some great nuggets of information.” The next Parks and Recreation Academy will be held February 5-7, 2019 in Westlake Village.
The Leadership Academy, held in March in Westlake Village, hosted 22 people representing 17 member agencies. Holly Owen, Planning and Economic Development Director, attended from the City of Solvang and remarked, “The best aspects of the academy were good pacing of start and finish, useful and timely topics.” The last session of the academy, Conflict Resolution: Leadership Strategies, Tools and Techniques to Help Employees Get Along, was co-presented for the first time by Steve Albrecht and Doug Sjoberg. It was a valuable and interactive session that really connected with the audience in an innovative way and received excellent reviews. The next Leadership Academy is scheduled for March 12-14, 2019 in Santa Barbara. Requests for registration are now being accepted.
The biennial Executive Academy was held April 12-13 in Santa Barbara. Agency executives heard seven different speakers present topics on their role in risk management, leadership, communication, protecting agencies against claims and losses, how to handle social media, the psychology of crisis management, key steps to effective succession planning, dealing with the media (public relations), and governing for the future-equipping your council or board for strategic and generative leadership. Dave Klotzle, public works director from the City of Camarillo, commented, “The amount of material and sessions along with the day and a half format is good; any longer and it would be hard to commit to.” A highlight of the academy was hearing speaker and former city manager of San Luis Obispo, Ken Hampian, discussed issues, challenges, and lessons learned from the City of Bell. The next Executive Academy will be held in spring 2020.
The Human Resources Academy was held in April as well. This academy provided essential training for human resource professionals in basic theory, as well as practical knowledge and techniques necessary for everyday problem solving. Eight topics were presented by five speakers, including two Authority staff members, Paul Zeglovitch and Jeff Rush, who provided an inside look into lessons learned in human resource cases and practical tips for reducing workers’ compensation costs for agencies. Jenny Branson, City of Solvang, wrote, “The speakers were informed, entertaining and interactive.” Held annually, the Human Resources Academy is scheduled April 9-11, 2019 in Indian Wells. Requests for registration will start in early January 2019.
The Newly Elected Officials Academy, now scheduled annually, was held in Laguna Beach from June 4-5, 2018 with 21 local agency officials from 19 member agencies. This academy is recommended for those recently elected to office in the last two years and are new to local government. Six speakers addressed how to be an effective member of a governing body and how to work within the legal, financial, and structural constraints of local government. “This is an incredible academy. It should be a ‘must’ for every new elected member. Not only are the speakers interesting and dynamic, but the material supplied is a great reference. It’s also a great way to develop contacts and network,” shared Kathy Flachmeier, newly elected councilmember from the City of La Palma. The next Newly Elected Officials Academy will be held June 3-5, 2019 in Laguna Beach. Invitations will be emailed in May 2019.
The Public Works Academy was also held in June with 21 attending from 15 member agencies. This specialized academy, offered at no cost to members, included two and a half days of training that presented public works supervisors and managers with the tools necessary to mitigate losses in the public works arena. The next Public Works Academy will be held June 18-20, 2019 in Westlake Village. Requests for registration will begin in March 2019.
Regularly scheduled in the fall, the Management Academy was held October 22-25, 2018 in Carlsbad. A regular highlight of this academy is speaker John Perry’s Job Person Environment Assessment. Attendees complete the assessment prior to the Academy with the results presented by Perry on the first day of the Academy. “I have really enjoyed the Management Academy. I found the information on employee behaviors and preferences to be very insightful. The training has helped me to see this more clearly and identify techniques and strategies to effectively manage different employee behaviors and preferences,” commented Mark Rounds from the City of La Mirada. The next Management Academy will be held September 23-26, 2019 in Indian Wells. Requests for registration will begin in June 2019.
New Registration Process
Beginning in 2019 the registration process for California JPIA academies will be changing. This will affect all academies with the exception of the Newly Elected Officials Academy. In order to ensure that members who need this training can attend, the Authority has established guidelines that correct a flaw in the old process that often resulted in an academy reaching maximum capacity on the first day of open registration.
Priority will be given in academy registration as follows:
- Member of the California JPIA
- First time registrant for this academy or attended this academy more than three years ago
- Agency responsibilities approximate those of the intended academy audience
- Accompanied by no more than one other from the same agency
- The Authority will provide an announcement of an upcoming academy three months prior to the academy start date
- Those interested in attending must submit a “request to register” on the event website by the deadline given for each event
- Upon submitting your request to register, a “Registration Pending” notification email will be sent out. Within five business days after the request to register deadline, the Authority will either confirm registration by email or place the person on a waiting list. For those placed on the waiting list, should space become subsequently available, the person would be notified as such by email.
The Authority will provide an announcement of an upcoming academy three months prior to the academy start date. Those interested in attending must submit a “request to register” on the event website by the deadline given for each event. Upon submitting the request to register, a “Registration Pending” notification email will be sent out. Within five business days after the request to register deadline, the Authority will either confirm registration by email or place the person on a waiting list. For those placed on the waiting list, should space become subsequently available, the person would be notified as such by email.
For information about academies or the new registration process, please contact Michelle Aguayo, Training Coordinator.
by Ryan Thomas, Training and Loss Control Specialist
In his two years of instruction with the California JPIA, Doug Sjoberg has proven to be a valuable addition to the California JPIA’s stable of instructors. When asked about being an instructor, he will stop and remind you that he is not an “instructor”, rather he is a “facilitator”. This is the key to understanding Doug Sjoberg, as nothing is done in a vacuum or long lecturing from an instructor. Rather, learning comes from the participation of the student.
In August 2017, Doug teamed with the Authority to provide compliance training classes in harassment prevention, as well as courses in quality service, part-time seasonal employment, diversity, and other topics useful to public sector employees and local agency elected officials. When asked about this partnership, Doug explained “The people of Authority’s member agencies are always welcoming, prepared, and enthusiastic about their learning opportunities. The training staff and risk managers at the Authority are instrumental in making training efforts go smoothly by their extensive support, cooperation, and insight into members’ needs. All of that team-oriented collaboration makes a facilitator’s job absolutely enjoyable!”
Doug was born, raised, and educated in Seattle, Washington. He earned a Bachelors degree and Navy officer commission from the University of Washington and reported to San Diego, California (where he still resides) to start an 11-year naval career. In 1968, he reported to the USS Bradley, a destroyer escort, which brought him a wealth of experiences that taught him about teamwork and many of the skills and traits he discusses during his trainings. Doug recalls, “As duty officer one night I had to broadcast over San Diego radio the recall of our crew so we could sail to intercept a Soviet intelligence ship that was snooping off our West Coast. We found him and shooed him away. Our training and preparation for just such a crisis paid off.”
In early 1970, when the entire Soviet Pacific Fleet suddenly began operations hindering our interests in the area, he found himself on the only ship immediately available to sail, intercept, and track that fleet. He explained, “Soviet ships were all around my ship trying to cause embarrassing collision incidents, but I and my fellow officers were able to maneuver safely out of harm’s way. Our captain eventually made vice admiral and led the Grenada student rescue operation in 1983. This experience taught me to shoulder heavy accountability and operate under extreme stress at an early age.” Doug served in Vietnam from June 1971 – June 1972 with the Naval Advisory Group supporting programs that helped U. S. Forces personnel understand and work with the Vietnamese culture and people. He learned to speak some Vietnamese, and the experience taught him the skills to address large audiences, and to teach others how to resolve organizational and intercultural conflicts in diverse workplaces.
After his military service, Doug worked in the private sector and embarked on putting into practice training based on much of what he learned in the military. He earned his Master’s Degree in Human Resource Management in 1994 from Chapman University and is a Life Certified Senior Professional in Human Resources through the Human Resources Certification Institute. For several of the past 20 years, he partnered with Chapman University in San Diego to introduce and instruct in the national Human Resource Professional Certification Program. He has conducted certification exam preparation classes for hundreds of now-certified human resources professionals. Doug has taught hundreds of leadership, communications, conflict resolution, harassment prevention, diversity, and customer service courses to several thousand participants in companies which are members of the Employers Group and San Diego Employers Association.
“My personal interests include being an avid, though mediocre, golfer, supporting veterans’ groups and causes, public speaking to various civic groups, and being a grandfather to two grandchildren!”, Doug explains. “I’m an enthusiastic reader of history and of how people exist and respond to one another in living their lives. I thoroughly enjoy sharing knowledge with others, and helping people make the complexities of relationships easier to understand. My experiences taught me that adults love to learn and always ask “Where’s the fun that helps us remember?!” I enjoy bringing interactive exercises to any training experience and allow all participants to have some fun while they learn!”
Doug teach on topics including Workplace Harassment, Code of Quality Service, Stress Management, and Teambuilding and Conflict Resolution. He often provides feedback after training and e-mails members with what he felt were important takeaways from the classroom. He fosters a friendly, involved, and lively classroom experience.
Hello, 2019: With the New Year Comes New Laws
By Kelly Trainer and Ashley Lopeztello, Burke, Williams & Sorensen, LLP
Governor Jerry Brown has signed into law a number of employment-related bills that will impact California employers in the coming year. This article provides brief summaries on the new laws most likely to affect California workplaces. These new laws will take effect on January 1, 2019, unless otherwise stated below.
AB 2282 – California’s Fair Pay Act
AB 2282 clarifies last year’s AB 168, which required California employers to provide applicants with a pay scale for a position upon reasonable request. AB 2282 clarifies the terms “pay scale,” “reasonable request,” and “applicant” under AB 168.
AB 2282 defines an “applicant” as an individual seeking employment with the employer, not a current employee. A “reasonable request” for pay scale information is limited to requests made after the applicant has completed the initial interview. “Pay scale” is now defined as a salary or hourly wage range, not including bonuses or equity ranges.
Under AB 168 employers are still prohibited from relying on the salary history information of an applicant as a factor in determining whether to offer employment or how much pay to offer; however, employers are allowed to ask applicants about their salary expectations.
This legislation also clarifies that an employer may make a compensation decision based on an employee’s current salary as long as any wage differential resulting from that decision is justified by one or more of the following factors: (1) a seniority system; (2) a merit system; (3) a system that measures earning by quantity or quality of production; or (4) a bona fide factor other than race or ethnicity such as education, training, or experience.
SB 1085 – Paid Time Off for Union Stewards and Officers
SB 1085 requires public agency employers in California to grant, upon the request of a union, “reasonable” paid leaves of absence to employees serving as stewards or officers of the union or of any statewide or national employee organization with which the union is affiliated. The leave could potentially be on a full-time, part-time, periodic, or intermittent basis. “Reasonable” is not defined by the law.
While on such leave, employees must suffer no loss of compensation or benefits and retain reinstatement rights, meaning they have the right to return to the same position and work location held before the leave, or if this is not feasible, a substantially similar position without loss of seniority, rank, or classification. Benefits while on leave also include retirement fund contributions and service credit. Unions must reimburse the employer within 30 days for all compensation paid to employees while on leave, unless negotiated otherwise.
The actual procedures for requesting and granting leave are still left up to negotiations and the mutual agreement of the employer and the union as well. Overall, the law as written contains significant ambiguities that will likely need to be resolved at the bargaining table, such as what is considered “reasonable.”
The new law does provide that employers are not liable for any acts, omissions, or injuries by employees on leave. In the event that liability arises, the union is required to indemnify the employer and hold the employer harmless.
SB 1412 – Limitations on an Employer’s Use of Criminal Histories
Prior to the enactment of SB 1412, the law prohibited employers from seeking or using information concerning participation in pre-trial or post-trial diversion programs or convictions that had been judicially dismissed or ordered sealed. Employers could not ask applicants to disclose this information, could not seek it from any source, and could not utilize it as a factor in determining any condition of employment, unless (1) the employer is required to obtain information regarding an applicant’s convictions, (2) the applicant would be required to possess/use a firearm in the course of employment, (3) an individual who has been convicted of a crime is prohibited by law from holding the position sought, regardless of whether the conviction has been expunged, judicially ordered sealed, statutorily eradicated, or judicially dismissed following probation, or (4) the employer is prohibited by law from hiring an applicant who has been convicted of a crime.
The law is intended to tighten the exception to apply only where an employer is required by law to inquire into a “particular conviction” or where an employer cannot by law hire someone with a “particular conviction.” “Particular conviction” is defined only to mean “a conviction for specific criminal conduct or a category of criminal offenses prescribed by any federal law, federal regulation or state law that contains requirements, exclusions, or both, expressly based on that specific criminal conduct or category of criminal offenses.”
AB 1976 – Lactation Location
AB 1976 amends Labor Code 1031 by imposing an obligation on employers to make reasonable efforts to provide a room or location – that is not a bathroom (as opposed to not a toilet stall, which was the prior law) – for lactation. AB 1976 also provides for an employer to make a temporary lactation location available when no permanent location is possible due to operational, financial, or space limitations; when the temporary location is private and free from intrusion; is used only for lactation purposes while an employee expresses milk; and meets all other state law requirements regarding lactation accommodation. The law also contains an undue hardship exception to the non-bathroom requirement.
AB 2770 – Limited Privilege
AB 2770 amends Section 47 of the Civil Code to add three types of communications regarding sexual harassment that are now considered “privileged” communications—meaning they cannot be used as a basis for a defamation claim unless they are made with malice (i.e., statements made with complete disregard for the truth or false accusations made out of spite, ill will, or hatred towards the alleged harasser). Specifically, the bill protects:
1. Reports of sexual harassment made by an employee to their employer based on credible evidence and without malice;
2. Communications made without malice regarding the sexual harassment allegations between the employer and “interested persons” (such as witnesses or victims); and
3. Non-malicious statements made to prospective employers as to whether a decision to rehire, or not, would be based on a determination that the former employee engaged in sexual harassment.
BILLS THAT WERE VETOED OR FAILED TO PASS THE LEGISLATURE
A number of other bills were introduced, but never made it to Governor Brown for consideration including SB 1038, which would have amended the FEHA to impose personal liability for retaliation; AB 2069, which would have mandated that an employee’s medical use of cannabis is subject to reasonable accommodation; and AB 2841, which would have increased the amount of paid sick leave that an employee can accrue.
Of the 1,217 bills that were sent to Governor Brown, he vetoed 201 of them, including several employment-related bills, such as:
AB 1870 – FEHA Statute of Limitations
AB 1870 bill would have enlarged the statute of limitations for an employee to file an administrative complaint of discrimination/harassment/retaliation under FEHA with the DFEH. Under existing law, an administrative complaint must be filed with the DFEH within one year of the unlawful employment practice. Under this bill, an employee would have three years to file an administrative complaint (and an additional one year after receiving a right to sue notice from the DFEH to file a lawsuit). Governor Brown stated that he believed “that the current filing deadline – which has been in place since 1963 – not only encourages prompt resolution while memories and evidence are fresh, but also ensures that unwelcome behavior is promptly reported and halted.”
AB 3081 – Joint Liability for Harassment
AB 3081 would have amended the FEHA and Labor Code to (1) add status as a sexual harassment victim to existing prohibitions on discrimination against employees who are victims of domestic violence, sexual assault, or stalking, (2) create a rebuttable presumption of unlawful retaliation if an employer—within 30 days of notice of the victim’s status—discharges or threatens to discharge, demotes, suspends, or otherwise discriminates against a victim employee, (3) make a business jointly liable for harassment of workers supplied by the business’s labor contractor (existing law similarly extends liability for the contractor’s failure to pay wages and obtain valid workers’ compensation coverage), and (4) prohibit businesses from shifting to their labor contractors duties or liabilities under the Labor Code workers’ compensation insurance provisions. In vetoing the bill, Governor Brown noted that he believed many of the provisions were already contained in existing law, and to the extent the bill created new provisions, “they are confusing.”
AB 3080 – Arbitration Agreements
AB 3080 would have prohibited an employer from requiring an applicant for employment or an employee from waiving his/her right to a judicial forum as a condition of employment or continued employment. Governor Brown vetoed a similar bill in 2015. In his veto message, Governor Brown said that he believed the bill violated federal law and would not sign it.
AB 1867 – Expanding Records Retention
AB 1867 would have required employers with 50 or more employees to retain records of any complaint of sexual harassment for at least five years following the last day of employment of the complaining employee or any alleged harasser, whichever is later. In his veto message, Governor Brown said that he would not sign it because it felt it was unwarranted given the legal requirements to maintain personnel files, including records of complaints.
 The November issue of The Authority includes a summary of all FEHA-related legislative changes as well as a detailed summary of SB 1421 regarding the confidentiality of certain police personnel records, which are not included here. Those articles are available here.
An Advanced Look at Assembly Bill 748: Analyzing the Elimination of the Confidentiality of Video and Audio Related to Critical Police Incidents
By Algeria R. Ford and Nathan A. Oyster, Burke, Williams & Sorenson
On July 1, 2019, video and audio relating to critical police incidents, which are defined as officer-involved shootings and certain uses of force, will no longer be confidential under California law and can only be withheld under certain circumstances. Therefore, when a request for audio and video comes in, law enforcement agencies will have to evaluate the request and determine whether the media falls within an exception, such that delayed disclosure is permitted, and also determine generally what media in their possession has to be disclosed.
Delayed Disclosure Under AB 748
Assembly Bill 748 (AB 748) allows delayed disclosure during certain criminal investigations. However, for an agency to use the criminal investigation exception first, AB 748 requires that the criminal investigation be “active.” That is, the criminal investigation cannot be concluded or stale and second, it sets different requirements depending on how long the agency wishes to delay disclosure. To delay disclosure for up 45 days, disclosure would have to “substantially interfere” with the criminal investigation. In addition, the agency would have to notify the requestor in writing of the basis and provide an estimated release date. Similarly, to delay disclosure from 45 days to one year, disclosure would have to “substantially interfere” with the criminal investigation. However, this time, the Bill requires that the agency reassess every 30 days in addition to notifying the requestor in writing of the basis. For delays past a year, the law enforcement agency would have to demonstrate by “clear and convincing evidence” that disclosure would “substantially interfere” with the criminal investigation and also reassess every 30 days. The practical impact is that a delay will not be justified simply due to the existence of a criminal investigation and the ability to withhold records past 45 days will be limited to a few extreme circumstances.
AB 748 also contains a process through which an agency can withhold materials if disclosure would violate the reasonable expectation of privacy of a subject in the video. The statute, however, requires the materials to be disclosed to the subject, heirs, or representatives. Section 6254(f)(4)(B)(iii) discusses what should occur when the subject’s privacy is at issue yet disclosure to the subject or his heirs would harm the process for an ongoing investigation. The context of the statutory provision is that the agency can continue to withhold the materials, due to the investigative harm, even though the materials would normally be disclosed to the subject; the exact statutory language of the statute differs, as the statute requires the agency to “provide the video or audio recording.” Thus, Government Code § 6254(f)(4)(B)(iii) reads as though it is missing a word. Therefore, although it seems that the intent of the statute was to allow the materials to be withheld in a qualifying scenario, the statutory language requires disclosure in such a qualifying scenario. While this exact scenario may be rare, when the scenario does occur, expect to see litigation to determine the statutory meaning.
All Media Must Be Disclosed
AB 748 is not limited to certain types of media; it applies to all video or audio recordings that relate to a critical incident. This would encompass body camera footage, dash camera footage, surveillance footage, cell phone recordings, radio traffic, 911 calls, and any other video or audio recordings that law enforcement agencies may have. This means if law enforcement obtains recordings from private citizens, those must also be released subject to the exceptions of AB 748. Review of all media for redaction purposes is going to be a very time consuming process and therefore, agencies should begin preparing their staff instead of waiting for the statute to take effect.
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