Issue 85-March 2019

News: Worthy

California JPIA 24^th Annual Risk Management Educational Forum

It’s gettin’ time to hitch your wagon and ride into town this October for the California JPIA’s Risk Management Educational Forum. We put in for some land, and we’re fixin’ things up real pretty for your stay. We’re callin’ our place “The Good, The Bad, and The Ugly of Risk Management” because, well, there’s plenty of that in these here parts.

When you get here, don’t be thinkin’ you’ll be all alone. We invited a bunch of city folk with their shiny boots, with some district and JPA people, too. There will be others ridin’ into town thinkin’ they know a whole lot about risk. And you know what? They do! The Authority posse will make sure of that.

Rest assured we won’t be sittin’ around all day. There will be plenty of time to play some good ‘ole “You’ve got a snake in your boot” and “Grab the bull by the horns.” We’ll be in the kitchen cookin’ up plenty of good food, and when night breaks, we’ll be servin’ sarsaparillas until the cows come home.

So saddle up, y’all! Get ready for “The Good, The Bad, and The Ugly of Risk Management,” the premier educational event bein’ held this October 9 to 11, 2019 in Indian Wells at the Hyatt Regency. We promise you’ll be leavin’ town smarter about helpin’ your agency manage risk.

Registration opens in early May.

News: Worthy

Making an Impact Under the Dome: How the California JPIA Advocates to Protect Cities

Spring is in the air, and with the change in weather comes the flurry of new legislation coming down the pike at the California State Capitol in Sacramento.

On March 26, California JPIA team members Risk Manager Maria Galvan, Administrative Analyst Abe Han, Workers’ Compensation Program Manager Jeff Rush, and Assistant Executive Officer Norm Lefmann, added their voices to those advocating for and opposing current legislation by attending the California Association of Joint Power Authorities’ (CAJPA) Legislative Action Day.

“CAJPA’s annual Legislative Action Day provides an important opportunity for us to advocate for or against legislation that will impact our members,” says Lefmann, who chairs CAJPA’s Legislative Committee. “I am proud to represent the Authority and our members.”

On the docket for discussion with legislators this year were two bills of particular interest:

AB 218 (Gonzalez) – Opposed
This bill would substantially extend the statute of limitations to bring a civil action against an employer, including school districts, public agencies. and others, where there has been a claim against an employee of that organization for alleged child sexual abuse. Under existing law, a victim may bring a civil suit against an employer after the age of 26 if they allege that the employer had some reason to know of the proclivities of their employee AND the employer failed to take action to prevent the abuse. AB 218 would change the “AND” to an “OR” which would have the effect of eliminating the requirement that an employer have culpability, thereby creating strict liability.

AB 1400 (Kamlager-Dove) – Opposed
This year, there are several bills that propose to expand the nature of presumptive injuries in the workers’ compensation system. Presumptive injuries deem specific types of work, such as active law enforcement or firefighting, to be the presumed cause of 10 conditions and illnesses, including cancer. AB 1400 extends the cancer presumption beyond actual firefighters to “fire service personnel with exposure to active fires or health hazards resulting from firefighting operations.” There should be a broad conversation about presumption eligibility that examines the cost and impacts that such change would have on injured workers and on local budgets prior to any further coverage expansion.

The Authority is also closely monitoring other bills that may have an impact on members. Relevant updates on bills will be communicated to members as the legislative session continues.

Engagement in CAJPA’s Legislative Action Day and other similar activities demonstrate the California JPIA’s commitment to providing innovative risk management solutions through programs and services, and empowering members with access to current, expert-level knowledge of insurance, claims, training, litigation, contracts, governmental entity exposures, and loss control.

“The Authority is committed to monitoring and acting upon legislation that may affect our members,” says Lefmann.

News: Worthy

Leadership Academy

03a Leadership Academy The Authority recognizes that in the leadership role of local government managers and department directors in the current environment of increasing complexity and greater interdependence, leaders must be able to think strategically and make decisions through an informed and inclusive process.

The Authority’s Leadership Academy held March 12 – 14, 2019 in Santa Barbara, brought together 24 leaders representing 19 member agencies. The Leadership Academy encouraged a strong learning community and exchange of ideas among participants. Through hands-on exercises and dynamic discussions, participants learned strategies to master complex challenges in leading today’s local governments. Leadership experts presented the following sessions at the Academy:

The Job-Person-Environment Assessment
Trust, strategic thinking, and innovation
A leader’s role in liability and workers’ compensation
Transforming your organization through great leadership
Public service ethics / making decisions in the gray zone
Conflict resolution: leadership strategies, tools, and techniques to help employees get along

“I found the Leadership Academy very valuable. I have tools and strategies that I can take back to the department and share with my team”, said police sergeant Tony Mosqueda with the city of Morro Bay.

The Authority develops training to support professional development and believes it plays an important role in supporting risk management and good governance. The Authority’s academies–training that focus on a specific public sector discipline, such as public works, human resources, and parks and recreation–present essential theories and techniques for pragmatic problem-solving.

The academies are one example of how the California JPIA’s training program has transitioned into to a more holistic, loss-prevention strategy with a real impact on claims. “When the Authority first began to conduct training, in the 1990s, it was simply provided as a member benefit,” says Norm Lefmann, assistant executive officer, who oversees the Authority’s risk management and training programs. “Members loved it, but it did not have an intended impact on claims.”

“Since 2011,” Lefmann continues, “our training has become more and more focused on understanding what exposures are and addressing strategic areas, so that we may reduce the cost of claims and coverage. Academies offer pragmatic solutions and a variety of ways to deal with situations before they become problematic.”

Next up on the Authority’s academy schedule is the Human Resources Academy, April 9-11 in Indian Wells. Addressing how employees responsible for human resources and employee relations can support limiting their agency’s liability in employment and management practices, the Academy will provide essential training in basic theory, practical knowledge, and problem-solving techniques.

The Authority then will offer the Public Works Academy, June 18-20 in Westlake Village. That program, geared for experienced public works supervisors and managers, will emphasize best practices needed to effectively manage Public Works risk exposures.

For more information about the Authority’s academies, contact Michelle Aguayo, Training Coordinator.

Photo caption: John Perry presenting the Job-Person-Environment Assessment

News: Worthy

Performance of Copyrighted Works

By Alex Mellor, Risk Manager

As summer approaches, many Authority members will offer movie nights, concerts in the park, and other similar recreational activities. These events often involve the presentation or performance of creative works (e.g. movies, music) protected by copyright. Copyright owners have exclusive rights to reproduce and copy their work, prepare derivative work, distribute the work, and perform the copyrighted work publicly.

Performance of a copyrighted work in a public place without a license constitutes copyright infringement. A public agency that sponsors such a public performance or owns the property where the public performance takes places is also an infringer, regardless of whether the agency has knowledge that the work is protected by copyright and regardless of whether the agency intended to infringe. Ultimately, public agencies are responsible for ensuring that licenses are obtained to perform creative works on their property. Failure to do so could result in liability for copyright infringement. Statutory damages for copyright infringement can be costly, ranging from $750 to $30,000 per infringement. Additionally, a court may award damages up to $150,000 if willful infringement is found.

Occasionally, public agencies will seek to contractually transfer the responsibility to license creative works to the performer or another third party. While such an agreement will not protect the public agency from liability if required licenses were not actually obtained, the agency can contractually shift the cost of obtaining licenses to the performer or other third party. However, a public agency can and should require a performer or other third party to contractually agree to indemnify and hold the agency harmless from any copyright infringement claims. Be advised, however, that such an indemnification provision would not prevent a public agency from being named as a defendant in a copyright infringement lawsuit.

The following additional guidance is offered to member agencies planning events involving copyrighted works:

Obtain licenses from copyright owners or performance rights organizations (PROs) [1] that enforce licenses for copyright owners; and
Enter into contracts with hired performers and other third parties (e.g. DJ, band) that require a material representation that they have all necessary licenses to perform the creative works and an indemnification clause whereby the performer or other third party agrees to indemnify and hold the public agency harmless from any copyright infringement claims.
Consider prohibiting bands/DJs altogether and instead provide properly licensed music playlists as part of a rental or permit fee.

In conclusion, it is incumbent on the public agency that is sponsoring an event or that owns property where creative works will be performed to secure permission from the owner of any copyrighted works. Failure to do so may expose the agency to monetary damages for copyright infringement.

If you have questions or would like more information, please contact your assigned regional Risk Manager.

[1] The main music licensing PROs are: 1) The American Society of Composers, Authors and Publishers (ASCAP); 2) Broadcast Music, Inc. (BMI); 3) Society of European Stage Authors and Composers (SESAC); and 4) Global Music Rights (GBR).

The main movie licensing PROs are: 1) Criterion Pictures USA, Inc.; 2) Kino International Corp.; 3) Milestone Film & Video; and 4) Motion Picture Licensing Corporation (MPLC).

Typically, PROs will issue blanket licenses, which allow you to public perform any songs/movies in that PRO’s catalog.

News: Worthy

The Continued Challenge of Managing the Risks of Electric Scooters

By Abraham Han, Administrative Analyst, and Tim Karcz, Senior Risk Manager

It has been a little over a year since companies such as Bird and Lime began introducing electric pay-as-you-ride scooters in cities throughout the nation. As these dockless scooters become more common, cities are faced with determining how to best manage the risks they bring with them. In a previous newsletter article, the Authority identified various issues associated with electric scooters, including several approaches to help manage this risk. This article is intended to provide members with updated insight on this risk and how it is evolving.

Sudden and Unannounced Scooter Drops

There has been at least one documented case of unannounced scooter drops. In December 2018, the city of Frisco (Texas) suddenly found 200 Bird electric scooters on its streets and sidewalks. Neither the city council nor city officials were made aware of the drop-off. The city called an emergency special meeting, in which city council members voiced their concerns with a Bird company representative. Bird was told by the city to remove all scooters by a specified date and time, or else city staff would remove them. Bird failed to comply with the order, and the city ended up removing the scooters.

Other cities caught off-guard with unannounced scooter drops include Bakersfield, Santa Cruz, Norfolk (Virginia), Cambridge (Massachusetts), and Cincinnati (Ohio). Although this is not an exhaustive list of cities, it provides a sampling of how broad this issue is and not limited to certain geographical regions.

Rider Safety Issues Continue

Beyond the local government policy perspective, electric scooters also pose a high safety risk for individuals and pedestrians. Researchers at the University of California, Los Angeles (UCLA), conducted a study between September 1, 2017, and August 31, 2018, in which they observed 249 people who were injured by scooters. One-third of those injured had to be transported via ambulance for injuries resulting from falling or colliding with other objects. Many suffered head trauma. While helmets are no longer mandated by state law for those 18 and older, the scooter manufacturers actively encourage helmet use. The study also found that while a significant majority of the injured were the riders themselves, some pedestrians were also injured after being hit by a moving scooter.

Cities Taking Firm Action Against Electric Scooter Companies

Several cities have been working to prevent the potential headaches of electric scooters. Ventura (California) and Columbia (South Carolina), have established ordinances to temporarily ban scooters pending further review. This approach is typically taken in order to temporarily remove scooters from the city while working towards regulations that directly address electric scooters and other similar modes of transportation. These ordinances are usually identified as “emergency” or “urgency” ordinances and tend to be designed to have scooter companies remove scooters or else incur fees (such as an impounding fee per scooter) for non-compliance.

As the risks and legal landscape of electric scooters continue to evolve, members are encouraged to strategize proactively within their agency (including with legal counsel, as applicable). Although there is no “one size fits all” method, members should always be mindful of liability, accessibility, and property concerns as part of tailoring the eventual approach.

The Authority will continue to monitor this evolving risk exposure and update members, as necessary.

For questions about scooters, please contact your assigned risk manager.

Pro: Files

Celebrating Milestones – Norm Lefmann and Alex Smith

People are the most important part of any organization. Our employees, working with one another, and with our members and partners, have established the Authority as a leader in the pooling industry. An important element contributing to our success are longtime employees whose institutional knowledge and industry experience sets us apart from our peers in the self-insurance pooling community.

We recognize two such employees—executive leadership team members Norman Lefmann, assistant executive officer, and Alexander Smith, chief financial officer—who are celebrating milestone anniversaries this month.

Working alongside Jonathan Shull, chief executive officer, Lefmann and Smith have established a vision for the Authority by investing considerable time and energy in strategic planning and execution. Balancing risk and innovation, both of these leaders leverage the knowledge rooted in their experience over time to anticipate future needs and opportunities and to ensure the Authority’s sustainability.

“A key component of strength is stability,” says Shull. “One of a chief executive officer’s most important responsibilities is building a strong, reliable team that can deliver services and programs for our members and mentor and cultivate future leaders. Norm and Alex lead and manage with integrity; teaching and empowering their departmental teams to do the right things for the right reasons.”

Read more below about how Lefmann and Smith have made our pool more effective, more efficient and better able to provide excellent service to our members.

Norm Lefmann

06a Norm Lefmann

Lefmann celebrates 15 years of service, having joined the Authority in March 2004 as a senior risk manager. His tenure also includes a stint as member services director, before his promotion to his current position as assistant executive officer in 2006. Lefmann now oversees the Authority’s claims management functions, risk management and training programs, technology initiatives and social media presence. Under his leadership, the Authority continues to expand its programs and services provided to members including the ADA assistance program, the risk technician program, and the sidewalk inspection and maintenance program. He also is responsible for having developed a strategic approach to working with members to reduce risk by way of the Authority’s Loss Control Action Plan (LossCAP) Program.

A well-respected presence both internally and externally, Lefmann leads the Authority’s legislative efforts and is actively involved with California Association of Joint Powers Authorities, for which he serves as chair of the Legislative Committee.

“My goal, as part of the Authority’s larger leadership team,” says Lefmann, “is to raise the profile of risk management; this speaks to our member-driven focus. Rather than simply managing claims, we proactively seek ways to reduce claims by formally educating and building relationships with our members and the individuals within their organizations who support risk management efforts.”

Alexander Smith

06b Alex 3

Smith celebrates 10 years of service with the Authority. Smith began his career with the Authority in March 2009 as finance director and was initially responsible for managing the programs and activities of the Financial Services Division. He was promoted to his current position as chief financial officer in December 2016.

As chief financial officer, Smith is broadly responsible for all aspects of the Authority’s financial activities. He plays a key role in finance and accounting operations, including member cost allocation, excess and reinsurance negotiations, budget development, underwriting policy development, coordinating actuarial studies, benchmarking, and overseeing the preparation of financial statements and the annual audit. Smith also provides oversight for the Authority’s investment operations and portfolio management.

In addition, Smith serves on the Membership Practices Committee of the Association of Governmental Risk Pools (AGRiP) as a primary reviewer of applications for recognition of advisory standards compliance. This involves a comprehensive review and evaluation of best practices and operating procedures for risk pools nationwide including a few in Canada and Australia. Through AGRiP, Smith also participates in the Financial Benchmarking Initiative which is a project for aggregating data from 193 risk pools to help establish relevant, useful, and easily accessible benchmarking tools for risk pool administrators.

Under Smith’s leadership, the Authority developed its excess liability and excess workers’ compensation programs and re-structured the property program. As a result, there was a significant improvement in the Authority’s ability to retain members as well as offer attractive coverage programs to new prospective members.

Of the Authority, Smith says, “It’s an honor and a privilege to work with such a great staff of subject matter experts. It is also great to work with so many members who are willing to focus on risk management and partner with us to lower the long-term cost of risk, both for their agency and for the membership at large.”

Congratulations, Norm and Alex!

Re: Members

City of Moorpark Honors Law Enforcement

Thin Blue Line sculpture

The City of Moorpark is paying tribute to the law enforcement community with a sculpture titled “Thin Blue Line” located at the Moorpark Police Services Center. A dedication ceremony for the sculpture was held on October 25, 2018. Mayor Janice Parvin stated, “We are very proud of our latest public art project. The ‘Thin Blue Line’ represents the relationship between law enforcement and the community it protects. Following the Borderline Bar and Grill tragedy, it provided a place where residents could honor our own fallen hero and resident Sergeant Ron Helus.”

The Thin Blue Line concept within the law enforcement community has been used to commemorate fallen law enforcement officers and represents the relationship of law enforcement in the community as the protectors of civilians from criminal elements. The sculpture is the work of artist, Heath Satow. The artist’s concept is a15-foot tall abstract figure of a police officer made from mirror polished stainless steel and bisected by a thin blue line. The shape is gender neutral to inclusively represent all officers.

At night, a thin blue line is seen through the sculpture. The lighting effect was created by painting the center-facing sides of each half of the sculpture with high intensity blue paint and illuminating them from the center of the base with high powered white LED lighting. Four plaques placed on the base provide the artist’s vision of the sculpture and includes quotes from anonymous officers.

The Thin Blue Line sculpture, and other public art projects by the City of Moorpark, are funded by the Arts in Public Places fund.

Legislative Update

California Cooks Up Sidewalk Vendor Law

(Reprinted with permission from Best Best & Krieger)

California Senate Bill 946 (“SB 946” – the “Safe Sidewalk Vending Act”) was signed into law on September 17, 2018 and took effect January 1, 2019. The Safe Sidewalk Vending Act established requirements for local regulation of sidewalk vending. The legislation defines “sidewalk vendor” as a person who sells food or merchandise on a public sidewalk or other pedestrian path. Notably, SB 946 prohibits all criminal penalties for sidewalk vending violations and allows anyone previously prosecuted for a vending violation the opportunity to have a conviction, fine or sentence dismissed.

The new law requires local authorities to establish a need for any proposed regulations, as the bill repeatedly provides that sidewalk vendor regulations must be directly related to “objective health, safety or welfare concerns.” Also, SB 946 explicitly states “…perceived community animus or economic competition does not constitute an objective health, safety, or welfare concern.”

The legislation includes the following elements:

Prohibits all current sidewalk vending regulations unless they are consistent with SB 946 and prohibits cities from imposing sidewalk vending regulations “within specific parts of the public right of way,” or within certain neighborhoods or areas.
Prohibits cities from limiting the total number of vendors unless doing so is directly related to “objective health, safety or welfare concerns.”
Authorizes cities to adopt time, place and manner restrictions for sidewalk vending, provided those restrictions are directly related to “objective health, safety or welfare concerns.” To the extent limitations on hours are needed, they cannot be unduly restrictive.
Continues to allow cities to require compliance with sanitary standards, ADA requirements and that food preparation be consistent with Health and Safety Code sections 113700 et seq.
Cities can still require that vendors obtain a permit for sidewalk vending or a business license and require them to possess a sellers permit from the California Department of Tax and Fee Administration.
Allows cities to prohibit from areas zoned exclusively residential “stationary sidewalk vendors” — vendors who remain at a fixed location, but cities cannot prohibit “roaming sidewalk vendors” — vendors who move from place-to-place and only stop to complete a transaction.
Allows cities to prohibit vending within the vicinity of a farmers’ market or swap meet or areas designated for use pursuant to a temporary special permit.
Allows cities to impose sidewalk vending regulations for public parks, provided they are necessary to ensure the use and enjoyment of the park and necessary to “prevent an undue concentration of commercial activity that unreasonably interferes with the scenic and natural character of the [a] park.”

Changes to Penalty Provisions

SB 946 also requires cities to cease criminal prosecution as an enforcement option for sidewalk vending violations. A city can issue administrative citations for violations of its sidewalk vending regulations and can impose higher administrative penalties for failure to obtain the appropriate permits. If a city seeks to impose administrative fines, SB 946 requires there be a process for determining the person’s ability to pay. Further, the person must be informed of his or her right to request an “ability-to-pay determination.” Finally, if the person is successful in establishing that he or she is unable to pay, he or she will only be required to pay 20 percent of the fine.

Many cities have adopted regulations to regulate sidewalk vending in accordance with SB 946.

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