Issue 88-June 2019
Sign Up Now – California JPIA 24th Annual Risk Management Educational Forum
Responding to First Amendment Audits
11th Annual Workers’ Compensation Symposium
August Risk Managers Roundtable: Understanding and Preserving Governmental Immunity Defenses
Irwindale and Azusa Police Department Members Awarded the Public Safety Officer Medal of Valor
News: Worthy
Sign Up Now – California JPIA 24th Annual Risk Management Educational Forum
It’s 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’ve fix’d 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 (joint powers authority) 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.
Signing up fer yer share of vittles, talk’n, lis’nen, and gettin’ educated about risk is easy and open now. There is no registration fee for members of the California JPIA. Also, a limited number of need-based lodging scholarships will be offered. Registration for non-members is $475 and is limited to public agency officials and employees, and the Authority’s business partners.
This year’s keynote speaker, Mac Anderson, founder of Simple Truths and Successories, Inc., is the leader in designing and marketing products for motivation and recognition. His professional accomplishments provide insight into his passion when speaking about leadership, motivation, and team building.
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 9-11, 2019, in Indian Wells at the Hyatt Regency. We promise you’ll be leavin’ town smarter about helpin’ your agency manage risk.
For questions, email us at forum@cjpia.org
News: Worthy
Responding to First Amendment Audits
by Maria Galvan, Risk Manager
With the advent of social media and smartphone cameras, we all are living and working in a fishbowl. This is particularly the case for those in the public sector, including law enforcement. A recent example of this involves First Amendment Audits, which have affected a growing number of members.
First Amendment Audits is a social movement made up of individuals who are interested in making videos of their encounters with public officials. If the encounter results in an actual or perceived violation of the auditor’s First Amendment or other protected rights, then the video likely will be posted on social media and/or serve as the basis for a claim or suit. A violation may come about if the “auditor” is denied the right to take photos or videos in a public place or is detained for “suspicious” activity or other reasons.
Other “audit” scenarios could take place during public comment periods at governing body meetings. If the auditor is denied the right to speak on a particular topic during public comment, or to speak in a particular fashion, a First Amendment claim may result.
Auditors believe that the movement promotes transparency and open government.
The First Amendment states, Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. A First Amendment auditor’s focus is to identify the proper or improper response of public employees when in the presence of a camera. There are no laws in place prohibiting the recording of activities in a public place; however, this does not include the right to trespass into non-public spaces to take photos/videos or interfering with law enforcement operations. Non-public spaces need to be secured and marked as such (e.g., “employees only,” “restricted area-authorized personnel only”).
While it may be uncomfortable for public officials and employees to be recorded, it is important to act with diplomacy and respect. Public employees should use diplomatic and non-threatening language when interacting with the auditor. If inaccurate statements are made by agency employees, they will be further challenged and highlighted in the auditor’s video footage.
If an auditor enters your agency’s buildings and is recording the surroundings, greet the person and ask, “how may I help you?” The First Amendment auditor may respond by saying they do not need assistance and will continue recording, sometimes leaving shortly thereafter if they do not get the “altercation” or response they were seeking. Often, First Amendment auditors are acting provocatively, hoping that employees will shield themselves from view, ask them to stop recording, following them around, ask for identification, or be recorded by the public employees in return. Such responses to auditors help them gain followers on social media.
The Authority provides the following First Amendment audit guidance for employees and elected officials:
- Ensure all staff is knowledgeable of basic Constitutional law, specifically the freedom of the press and how that translates to what First Amendment auditors are doing.
- Conduct a walk-through of your agency’s public facilities. Ensure that non-public spaces are secured and identified with signage. Do not wait until a First Amendment auditor visits your facility to identify an area as non-public.
- Communicate to employees the prohibition of First Amendment auditors from entering non-public spaces and taking photos/videos where there is a reasonable expectation of privacy.
- Advise employees and elected officials that if they are in a public place, they are subject to being video recorded without consent. The First Amendment auditor is not required to state their name nor explain their reason for recording.
- Communicate the importance of providing consistent customer service to all customers, including First Amendment auditors. If the auditor begins to use profanity or disruptive language, do not response in kind. Remaining calm and professional is key. Some employees may need to remove themselves from the situation in order to contact their manager or supervisor for assistance.
- Law enforcement may order individuals to stop activities or actions if they are deemed to be interfering with law enforcement operations.
- Communicate to employees and elected officials of an individual’s right to speak during public comment periods at public meetings, regardless of who they are. The speaker’s subject matter and comments should not be restricted, leading to potential First Amendment challenges.
Instructor-led training opportunities such as Working in a Fishbowl: Practical Challenges for Public Sector Employees, Code of Quality Service and Safe Workplaces: When Being Nice Isn’t Working are available to members. E-learning courses, including Customer Service in Government: Think Like the Customer and others are available on myJPIA.
Check the training calendar for upcoming offerings. To schedule training, please contact Michelle Aguayo, Training Coordinator.
If you have questions, please contact your assigned Risk Manager.
News: Worthy
11th Annual Workers’ Compensation Symposium
The 11th Annual Workers’ Compensation Symposium, will be taking place on Thursday, August 15, at the Authority’s campus in La Palma. The day will provide an opportunity for members to meet with the York claims team and the Authority’s panel attorneys, and to learn more on a variety of workers’ compensation topics.
Risk managers, human resource professionals, and any members who are associated with their agency’s workers’ compensation program are encouraged to attend the Symposium.
The Symposium will begin at 9:30 a.m. and conclude at 2:00 p.m. Lunch will be served.
The program will feature the following presentations:
|
9:30 a.m. |
Introduction |
|
9:45 – 10:30 a.m. |
Defending Public Safety Presumption Claims |
|
10:30 – 11:00 a.m. |
2019 Legislative Update |
|
11:00 – 11:30 a.m. |
An Overview of the California JPIA’s Claim Data |
|
11:30 a.m. – 12:00 p.m. |
An Introduction to Telehealth |
|
12:00 – 12:45 p.m. |
Lunch |
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12:45 – 1:15 p.m. |
What Are Injured Workers’ Attorneys Planning Next? |
|
1:15 – 2:00 p.m. |
A Primer on Employment Law for Workers’Compensation Professionals |
To register for the Symposium, please click here.
For registration questions, contact:
Denise Covell, Administrative Assistant
(562) 467-8771
For event questions, contact:
Jeff Rush, Workers’ Compensation Program Manager
(562) 467-8707
News: Worthy
August Risk Managers Roundtable: Understanding and Preserving Governmental Immunity Defenses
A “dangerous condition” is defined as a “condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.”
Dangerous condition claims remains one of the largest exposures facing the Authority’s membership. In the previous five years members experienced on average 200 claims per year costing $7.4 million on streets and roadways. Approximately 60% of those claims involve vehicle accidents totaling $4.5 million per year.
In many instances, government agencies may invoke immunity defenses that prevail with near absolute certainty in this type of litigation. Knowledge of these governmental immunities, including design immunity and trail immunity, among others, is a key component of public agency liability defense, but knowing them is just the beginning.
The August Risk Managers Roundtable series will present “Understanding and Preserving Governmental Immunity Defenses” presented by Mike Wroniak and Christie Swiss, managing partners from Collins, Collins, Muir and Stewart. Mike and Christie will lead an interactive discussion on the way changes in policies and practices can limit exposure in future claims and litigation by preserving governmental immunity defenses.
Risk Managers Roundtables are opportunities for members to learn about relevant topics, network with their peers over lunch, and provide a forum for open discussion and dialogue on emergent member issues. The August Roundtables will be held at the following locations:
August 6 – La Palma, Authority campus
Facilitator: Christie Swiss
August 20 – City of Palm Desert, Administrative Conference Room
Facilitator: Mike Wroniak
August 27 – City of Pismo Beach, Council Chambers
Facilitator: Christie Swiss
Please be prepared to discuss and share your questions, scenarios that you are facing or lessons that your agency has learned. If you have questions or any scenarios that you would like covered by our facilitators, please submit them to Ryan Thomas, Training and Loss Control Specialist, to ensure they will be included during the Roundtable discussion.
Please register for the Roundtable through your agency’s training registrar or myJPIA. For more information, please contact Michelle Aguayo, Training Coordinator, at (562) 467-8777.
News: Worthy
California Wildfires
By Tim Karcz, Senior Risk Manager
The danger of wildfire in California is high. Almost all Authority members face exposure to these events. The recent fires were the largest and most destructive in state history. State and local fire departments from all over California battled the blazes in mountainous, and in some cases inaccessible, terrain. For their part, residents, businesses, and local governments grappled with the fires, ensuing floods and mudslides, evacuations, poor air quality, and sudden road closures.
Later this year, the Authority will offer various wildfire resources to members. First, “The Wildfire Risk Management White Paper” will be released to offer insight into the destructive forces of wildfire and related events, and how a public entity can prepare for them through available resources and risk management techniques. Second, the Authority will be hosting an Authority Live session in August to discuss the relevant risk management concerns related to these events, and the strategies that can be taken to prepare for claims that may result from them. Third, the opening session at the 2019 Risk Management Educational Forum in Indian Wells, will be titled “We Didn’t Start the Fire!” This session will expand upon the Authority Live session; giving attendees an understanding of potential claims and legal causes of action arising out of catastrophic wildfires. They will also discuss applicable legal defenses, and strategies for managing the risk.
Other important fire safety resources can be found on the California Office of Emergency Services resource-rich website: http://www.caloes.ca.gov/ICESite/Pages/December-Wildfires.aspx, as well as Cal-Fire’s website: www.readyforwildfire.org. In addition, the California Office of Emergency Services offers up to date information on active wildfire events as well as a statewide wildfire recovery resources page offering important information. The site can be found at www.wildfirerecovery.org/.
In addition, the Authority offers training on Respiratory Protection, Emergency Preparedness, and Fire Extinguisher use. Visit https://www.cjpia.org/risk-management/training for more information.
For more information, contact your regional Risk Manager or visit the Authority’s website.
News: Worthy
Join Social Media Conversations with the Authority
In order to better connect with current members and reach potential new members, the Authority has an active presence on social media. Members can find information on various topics on the social media channels listed below.
Connect with our latest topics:
Facebook
“Registration for the 2019 Annual Board of Directors meeting, to be held on Wednesday, July 17, is now open. Note that the deadline to register is July 16. To learn more or to register, click here: https://tinyurl.com/y4uphznk” Like, comment and share:
https://www.facebook.com/California-JPIA-650664764970940/
LinkedIn Page
“How good are you at spotting hazards? June is #NationalSafetyMonth. Learn how to spot potential dangers before they happen. Reduce risk with these tips from The National Safety Council: https://tinyurl.com/yywlrjar” Follow us, comment and share about risk management:
https://www.linkedin.com/company/california-joint-powers-insurance-authority/
Twitter
“The California JPIA staff enjoyed learning at the @MMASC_SoCal Women’s Leadership Summit last week. Empowering messages, practical tips, and hearing from city managers on the importance of public service and making a difference in their communities! Thank you, MMASC!”
https://twitter.com/californiajpia/
For information on how to join these sites or participate in discussions, please contact Courtney Morrison, Administrative Analyst, by email or by phone at (562) 467-8779.
Re: Members
Irwindale and Azusa Police Department Members Awarded the Public Safety Officer Medal of Valor
On May 22, 2019, members of the Irwindale Police Department and Azusa Police Department were awarded the Public Safety Officer Medal of Valor, which is the highest national award for valor that can be bestowed upon a public safety officer. The Medal of Valor was awarded by President Donald J. Trump, in conjunction with Attorney General William P. Barr, during a ceremony at the White House in Washington D.C.
Honorees included Detective Manuel Campos from the Irwindale Police Department and Lieutenant Xavier Torres (retired); Sergeant Seth Chapman; Sergeant Terry Smith (retired); Sergeant Thomas Avila III; Sergeant Rocky Wenrick; Corporal Andrew Rodriguez (retired; active reserve officer); and Senior Officer Carlos Plascencia from the Azusa Police Department.
The Public Safety Officer Medal of Valor was bestowed upon these officers for their heroic conduct above and beyond the call of duty during an active shooter incident on November 6, 2016, which was also the nation’s Election Day. Their exceptional bravery, extraordinary presence of mind, and swiftness of action in the face of mortal danger was unparalleled and resulted in the rapid resolution of an incident that had the potential to claim countless innocent lives beyond the tragic loss sustained that day.
Azusa Police Department’s Chief of Police, Stephan Hunt, and Irwindale’s Chief of Police, Ty Henshaw, expressed how deeply honored the men and women of both the Azusa and Irwindale Police Departments were to have their officers recognized for selfless and heroic actions on that fateful day. The collaborative efforts demonstrated by personnel exemplified the immeasurable solidarity of the brave men and women who proudly serve as law enforcement officers nationwide.
Concurrent with this honor was a recognition of the victims, Francis Varney Jr., Elida Dominguez, and Mary Valenzuela. They and their loved ones were impacted by the senseless violence of that day.
The Authority recognizes the dedication and sacrifice of the officers of the Azusa and Irwindale Police Departments.
The Court Report
Contention That City Council Violated Brown Act Is Moot Where Council Unequivocally States It Will Cease the Challenged Conduct
By Daniel P. Barer, Partner, Pollak, Vida & Barer
In Transparentgov Novato v. City of Novato, published April 10, 2019, the First Appellate District affirmed an order denying a petition for writ of mandate and for declaratory relief against the City of Novato.
Background
The Novato City Council approved construction of a solar-panel carport and a bus-transfer facility. In November 2015, a new mayor was elected in Novato. Prior to the next Council meeting, the new mayor invited the public to attend the meeting and critique the prior council’s decisions on previously approved projects. There was significant public comment, and afterwards, the mayor asked her colleagues to reconsider the previously approved projects. This discussion took place after public comment and during the council-comments portion of the meeting. The Council ultimately voted to form a subcommittee to study one of the previously approved projects. This action had not been on the Council agenda.
TransparentGov sent a letter claiming that the Council had violated the Brown Act (open meeting law, Gov. Code 54950) by discussing substantive aspects of the solar project and by voting to establish a subcommittee without public notice. In 2016, the Council amended its policy to prohibit councilmembers from orally asking for an item to be placed on a future agenda. The new policy required a written request that must be included in the agenda package for the meeting.
Ruling
TransparentGov sought a declaration that the 2015 meeting violated the Brown Act. The court of appeal affirmed the denial of the petition for a writ of mandate and declaratory relief. TransparentGov failed to demonstrate a justiciable controversy warranting relief.
Under the statutes governing relief for violations of the Brown Act, the propriety of declaratory relief, and writ relief, relief is properly denied if the respondent has stated that it has ceased the challenged action and the evidence indicates it will not undertake the action in the future.
The Court Report
Roundup Jury Verdict
(Reprinted from Reuters, May 13, 2019)
On May 13, 2019 a California jury awarded more than $2 billion to a couple who claimed Bayer AG’s glyphosate-based Roundup weed killer caused their cancer, in the largest U.S. jury verdict to date against the company in litigation over the chemical. Bayer AG is a German multinational pharmaceutical and life sciences company and one of the largest pharmaceutical companies in the world.
The large punitive damages award is likely to be reduced due to U.S. Supreme Court rulings that limit the ratio of punitive to compensatory damages to 9:1. The jury awarded a total of $2 billion in punitive damages and $55 million in compensatory damages.
It was the third consecutive U.S. jury verdict against the company in litigation over the chemical, which Bayer acquired as part of its $63 billion purchase of Monsanto last year. Both other jury verdicts also came in California, one in state court and one in federal court.
The jury in Alameda County Superior Court in Oakland on Monday said the company was liable for plaintiffs Alva and Alberta Pilliod’s contracting non-Hodgkin’s lymphoma, a spokeswoman for the couple said.
It awarded $18 million in compensatory and $1 billion in punitive damages to Alva Pilliod, and $37 million in compensatory and $1 billion in punitive damages to his wife, Alberta Pilliod. The jury found Roundup had been defectively designed, that the company failed to warn of the herbicide’s cancer risk and that the company acted negligently.
The German chemicals giant faces more than 13,400 U.S. lawsuits over the herbicide’s alleged cancer risk.
The next jury trial in the glyphosate litigation is scheduled for August in Missouri state court, the first time a jury outside of California will hear a Roundup case. The trial will take place in St. Louis County, where Monsanto’s former headquarters are located.
Bayer in a statement on Monday said it was disappointed with the verdict and will appeal. A spokesman called the jury’s decision “excessive and unjustifiable.”
The company said both Alva and Alberta Pilliod had long histories of illnesses known to be substantial risk factors for non-Hodgkin’s lymphoma.
“The contrast between today’s verdict and (U.S. Environmental Protection Agency’s) conclusion that there are ‘no risks to public health from the current registered uses of glyphosate’ could not be more stark,” Bayer said.
Bayer says that decades of studies by the company and independent scientists have shown glyphosate and Roundup to be safe for human use. Bayer also points to several regulators around the world that found that glyphosate was not carcinogenic to humans.
Brent Wisner, a lawyer for the Pilliods, at a news conference following the verdict said Bayer had to take responsibility for its product.
“Monsanto keeps denying that it causes cancer and these two fine people here are casualties of that deception,” Wisner said, standing next to the California couple, who are in their 70s.
Alberta Pilliod called on Bayer to add a warning label to Roundup, saying she and her husband would not have used the product had it alerted them to a cancer risk. “We’ve been fighting cancer for more than nine years now and we can’t do any of the things we wanted to do. We really resent Monsanto for that,” Pilliod said.
The prior two jury verdicts against Bayer in U.S. Roundup trials triggered steep declines in Bayer shares.
A San Francisco state court jury in August 2018 awarded $289 million to a California groundskeeper, finding Monsanto’s glyphosate-based weed killers caused his cancer. That award was later reduced to $78 million and is on appeal.
In March, a federal jury in San Francisco awarded $80 million to another California man after finding Roundup caused his cancer. The company also said it would appeal that decision.
Adam Zimmerman, a law professor at Loyola Law School in Los Angeles, said it was too early to speculate about a potential settlement of the litigation by Bayer. “The legal questions on appeal in the previous two cases will ultimately inform how this litigation proceeds,” Zimmerman said. It also remains to be seen how juries in other part of the country react to the evidence in upcoming trials, he said.
Shareholders have rebuked the company’s top management over its handling of the Monsanto acquisition and the litigation it inherited, which has wiped around 30 billion euros ($33.68 billion) from Bayer’s market value since the first jury verdict.
The Pilliods allege the regular use of Roundup on their property between 1975 and 2011 caused them to develop cancers of the lymph system.
They filed their lawsuit in 2017 after being diagnosed with cancer in 2011 and 2015, respectively. Both of them are currently in remission, but their trial had been expedited due to the risk of a relapse and potentially short life expectancy.
Plaintiffs in the litigation allege that Monsanto had known about the herbicide’s cancer risk for decades, but failed to warn consumers and instead attempted to influence scientists and regulators to receive favorable assessments of its products. Bayer denies those allegations.
Lawsuits are largely based on a 2015 conclusion by the World Health Organization’s cancer arm, which classified glyphosate as “probably carcinogenic to humans.”
A 2017 Reuters investigation here found that the World Health Organization’s International Agency for Research on Cancer had dismissed and edited out “non-carcinogenic” findings that were at odds with its final conclusion that the chemical probably causes cancer.
The U.S. EPA, the European Chemicals Agency and other regulators have found that glyphosate is not likely carcinogenic to humans.
While the U.S. EPA has found that glyphosate is not likely carcinogenic to humans, and the product is still commercially available, California JPIA members may want to consider alternative solutions for weed control.
If you have questions or would like more information, please contact your assigned regional Risk Manager.
Legislative Update
By Abraham Han, Administrative Analyst
With an unusually high volume of bills, the California State Legislature continues to have a busy legislative session in 2019. As with the previous legislative update, there continues to be much focus on bills related to workers’ compensation that are expected to have a significant impact to members.
The Authority provides this update to member agencies and partners to ensure familiarity with the impact of Sacramento’s actions on our day-to-day local government operations. The Authority’s legislative advocacy efforts are regularly coordinated with the California Association of Joint Powers Authorities and the League of California Cities.
Please note that bills are subject to amendments and revisions that can significantly change the meaning of the bill over time. The Authority will continue to provide updated positions on key bills to members and partners.
AB 218 (Gonzalez). Damages: childhood sexual assault: statute of limitations.
Position: Oppose
Summary: This This bill would expand the definition of childhood sexual abuse, which would instead be referred to as childhood sexual assault. This bill would increase the time limit for commencing an action for recovery of damages suffered as a result of childhood sexual assault to 22 years (compared to eight years) from the date the plaintiff turns 18 or within 5 years of the date the plaintiff discovers or reasonably should have discovered that the psychological injury or illness occurring after the age of majority was caused by sexual assault, whichever is later. Further, the re-opening of previously settled cases for three years is concerning. The bill has not been amended since the last update, and the Authority maintains its “oppose” position.
AB 749 (Stone). Settlement agreements: restraints in trade.
Position: Oppose
Summary: This bill would prohibit an agreement to settle an employment dispute from containing a provision that prohibits, prevents, or otherwise restricts a settling party that is an aggrieved person, as defined, from working for the employer against which the aggrieved person has filed a claim or any parents company, subsidiary, division, affiliate, or contractor of the employer. The bill would provide that a provision in an agreement entered into, on, or after January 1, 2020, that violates this prohibition is void as a matter of law and against public policy. This bill would preclude an employer from prohibiting an employee that has engaged in unlawful or egregious conduct, from seeking future employment with the same employer. The bill has not been amended since the last update, and the Authority maintains its “oppose” position.
AB 932 (Low). Workers’ compensation: off-duty firefighters.
Position: Oppose unless amended
Summary: Multiple organizations, including the California Association of Joint Powers Authorities and the League of California Cities, oppose this bill unless it is amended to include local discretion and a limitation in the types of out-of-state situations that would be covered by the measure. In its current text, this bill does not acknowledge that the broad application of its provisions would lead to exposure to civil liability and major investigative difficulties by the local governments that employ the firefighters. Also, there is concern with the retroactive application of the law.
AB 1107 (Chu). Workers’ compensation.
Position: Oppose
Summary: This bill would preclude the use of utilization review for a serious chronic condition, cases where the employer previously authorized care, and cases where treatment is provided by a medical provider network (MPN) physician. This bill would eliminate utilization review for workers’ compensation in most circumstances and would likely eliminate the independent medical review (IMR) process. The bill was recently amended to include a provision for injured workers to pursue penalties for delays in treatment caused by the utilization review process. The bill has not been amended since the last update, and the Authority maintains its “oppose” position.
AB 1400 (Kamlager-Dove). Workers’ compensation: firefighting operations: civilian employees.
Position: Oppose
Summary: This bill extends the cancer presumption beyond actual firefighters. Recent amendments have been made, but the bill would still create additional exposure for members. As such, the Authority maintains an “oppose” position on the bill.
SB 542 (Stern). Workers’ compensation.
Position: Oppose
Summary: This bill would provide that in the case of certain state and local firefighting personnel and peace officers, the term “injury” also includes a mental health condition or mental disability that results in a diagnosis of post-traumatic stress disorder (PTSD) or mental health disorder that develops or manifests itself during a period in which the firefighting member or peace officer is in the service of the department or unit. These provisions would apply to claims for benefits filed or pending on or after January 1, 2017.
The Authority will continue to monitor these bills and others as the legislative session continues.
If you have any questions, please contact Abraham Han, Administrative Analyst.
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