Issue 64-June 2017
The future is inescapable and common to every individual, every discipline, and every organization. How will we respond to the need for relevance, change, succession, and stability? Are we prepared to face every challenge, setting a path with purpose, competitiveness, and confidence? At the California JPIA, we believe that we can face the future of risk management together.
Register for the California JPIA’s 22nd Annual Risk Management Educational Forum – Risk Management: Facing the Future Together
The future is inescapable and common to every individual, every discipline, and every organization. How will we respond to the need for relevance, change, succession, and stability? Are we prepared to face every challenge, setting a path with purpose, competitiveness, and confidence? At the California JPIA, we believe that we can facethe future of risk management together.
Over the course of two and one-half days, attendees will be absorbed in contemplating issues that could create future exposure and loss for local government. Led by future-minded experts, participants will draw from the lessons of the past to chart a new course for their organizations.
Content to Create the Future
Wednesday’s opening sessions will discuss how to “Avoid Being Tomorrow’s Headline” by offering strategies for “Managing Social Media Risks,” and addressing “Recreational Marijuana Employment Concerns.”
Thursday’s keynote speaker Doc Hendley is a CNN Hero and President and founder of the organization Wine to Water. Motivated by his quest to bring clean water to those who need it, Doc Hendley inspires others with his story. He explains how relationships have the power to transcend perceived barriers, taking things that once seemed impossible and making them inevitable. He also explains his philosophy of maximizing whatever is available to make the very most of every opportunity.
You can review the full Forum agenda here.
Registration is limited to public agency officials and employees, and the Authority’s business partners. Registration is free to California JPIA members. Non-member registration fee is $475. Lodging is not included in your Forum registration. The Authority’s room block sells out early, so make your hotel reservations now.
For more information and to register for the Forum, click here.
Risk Managers Roundtables: Creating Intergenerational Harmony in the Workplace
Speaker Doug Sjoberg will present “Creating Intergenerational Harmony in the Workplace” at the August Risk Managers Roundtables. Members are encouraged to convene with peers in order to discuss and strategize ways to achieve intergenerational harmony in the workplace. Participants will leave with an understanding of how to adapt to and appreciate the generational differences present in today’s workforce. Through roundtable discussion, participants will develop effective strategies to thrive in an intergenerational workforce.
Discussion topics will include: identifying behavioral characteristics typical of employees from the four generations now present in our workforces; understanding individual expectations of how employees should respond to situations; learning the use of initiative to “push back” on decisions that may hurt the organization, without fear of retaliation or rebuke (Includes how to communicate diplomatically); recognizing the effects of informal social media communication styles on the formality of business with the public, and; resolving tensions between supervisors and employees due to a perceived lack of “professionalism” and “work ethic” by newer generations.
You will not want to miss this valuable educational and networking opportunity. Lunch will be served at noon with the Roundtable wrapping up at 2:00 p.m.
The first roundtable will be held at the California JPIA campus in La Palma on August 8, 2017. Other dates are:
Tuesday, August 15
Noon – 2:00 p.m.
Tuesday, August 22
Noon – 2:00 p.m.
Registration information will be available soon.
Indemnity Laws Have Changed Again – What Does This Mean For Public Agencies?
By Christie Swiss, Partner, and Megan Lieber, Attorney, with Collins Collins Muir & Stewart LLP
On April 28, 2017, Governor Brown signed Senate Bill 496 into law, which ultimately lessens the burden of indemnity provisions and the immediate duty to defend in certain public and private contracts involving design professionals, defined in SB-496 as architects, landscape architects, engineers, and land surveyors. This new law is explained below and takes effect regarding design contracts going forward starting on January 1, 2018.
What was the law before SB-496?
In 2006, AB-573 was signed into law (codified as Cal. Civ. Code, § 2782.8), which addressed express indemnity agreements in contracts between specified design professionals and local public agencies. That law took effect on January 1, 2007, and prohibits local public agencies from requiring specified design professionals to indemnify the agency for anything more than the design professional’s negligence, recklessness, or willful misconduct.
In 2010, SB-972 was signed into law and took effect on January 1, 2011, which modified Civil Code section 2782.8 to make it explicitly clear that in contracts between design professionals and local public agencies, both the defense and indemnity obligations must be tied to the negligence, recklessness, or willful misconduct of the design professional. This law extended AB-573 (discussed above) to exclude the duty to defend public agencies except in the case of the design professional’s negligence, recklessness, or willful misconduct.
What is the new law?
Now, SB-496 has been signed into law and modifies Civil Code section 2782.8 once again, further restricting the indemnity rights of local public agencies and adding private contracts entered into with design professionals after January 1, 2018, to the agencies against whom the restrictions apply. Importantly, SB-496 limits the “duty to defend” to the comparative fault of the professional in private and local agency public contracts. Civil Code section 2782.8 previously applied to public contracts entered into by specified design professionals with public agencies, excluding state agencies as defined in the statute. SB-496 places private contracts and public contracts with non-state agencies on equal footing.
SB-496 extends the provisions outlined in section 2782.8, and makes them applicable to all contracts with specified design professionals entered into on or after January 1, 2018. In essence, SB-496 likely changes nothing with respect to contracts with public entities, and instead extends the restrictions previously applied only to public entities to all parties entering into a contract with a specified design professional.
What does the new law mean?
The practical implications of SB-496 are that for all private and applicable public contracts entered into after January 1, 2018, with the added limitations of SB-496, an architect, landscape architect, engineer, or land surveyor is not responsible for the cost to defend a client that exceeds the design professional’s proportionate percentage of fault. For example, if the design professional is found to be 25% at fault, then the law provides that they would only be liable for 25% of the attorney fees and costs of a party seeking contractual indemnity and defense reimbursement. If found not liable, or 0% at fault, the professional would not be responsible for any of their client’s attorney fees or costs.
Further, the statute does not explicitly state when any contractual “duty to defend” triggers. However, comparative fault cannot be determined until the end of a case, when there’s an actual finding by a judge or jury. The design professional community will argue that any contractual duty to defend cannot trigger until there is a determination of fault. Further, since the design professional’s attorney’s fees and costs (based on the design professional’s percentage of fault) would then become part of the overall judgment against the design professional, it may be more likely that the design professional’s professional liability insurance would cover that payment. We will see how this issue plays out over time.
In conclusion, public entities remain in the exact scenario that has been in place since January 1, 2011: a design professional is not responsible for the cost to defend and indemnify a public entity except in the case of the design professional’s negligence, recklessness, or willful misconduct. SB-496 simply extends these restrictions to private contracts entered into by design professionals.
If you have questions, please contact your assigned Risk Manager.
9th Annual Workers’ Compensation Symposium
The California JPIA is pleased to announce that the 9th Annual Workers’ Compensation Symposium will be taking place on Wednesday, August 16, at the Authority campus in La Palma. The day will provide an opportunity for members to meet with the Authority’s panel attorneys and the York claims team and learn about a variety of topics.
The Symposium begins at 9:30 a.m. and concludes at 2:00 p.m. Lunch will be served.
The program will feature the following presentations:
9:45 – 10:15 a.m.
|Using Root Cause Information
Presented by California JPIA Risk Managers
10:15 – 11:00 a.m.
Presented by Bob Nagel, RJN Investigations
11:00 – 11:30 a.m.
|Deposing Doctors: Why It’s Done and How It’s Done Successfully
Presented by Steve Siegel, Siegel, Moreno & Stettler
11:30 a.m. – 12:00 p.m.
Presented by Jeff Rush, California JPIA
12:00 – 12:45 p.m.
12:45 – 1:15 p.m.
|Components of Successful Return to Work Programs
Presented by Erik Peterson, Norm Peterson & Associates
1:15 – 2:00 p.m.
|What Happens at the Workers’ Compensation Appeals Board
Presented by Daryn Diaz, Law Offices of Robert Robin; Todd Sheehan, Siegel, Moreno & Stettler; Jessica Tyndall, Goldman, Magdalin & Krikes
To register for the Symposium, please click here.
For registration questions, contact:
Michelle Aguayo, Training Coordinator
For event questions, contact:
Jeff Rush, Workers’ Compensation Program Manager
Ryan joined the California JPIA in November 2015. Ryan came to the Authority following a nine-year career in human resources with the City of Costa Mesa.
Ryan provides a wide variety of program oversight and project management activities to assure the successful implementation of the Authority’s training program including: planning, organizing, facilitating, and evaluating training and academies presented to members; designing courses, including self-paced training, classroom training, short-takes, academies, and webcasts; directing the Authority’s certificate programs; and managing consultants and external vendors that provide training and development services.
When asked what interested him about joining the California JPIA team, Ryan said, “I worked for a member agency earlier in my career and was very impressed by the services provided by the Authority. The attention to customer service provided by the California JPIA staff that I worked with really stood out to me.” On the topic of interacting with our members, Ryan added, “Working with our members and regional risk managers to identify training needs and then providing that training, whether currently existing or developing for the future, is very satisfying. Receiving feedback from members about training really helps us design a program that truly meets our member needs. Also, I believe that service is paramount, and working with our hardworking staff, which share that mindset, is really exciting.”
Ryan is the proud father of two sons. Weekends are filled with baseball games and coaching. He also enjoys reading and golfing.
Managing Volunteer Risks
by Jim Gross, Senior Risk Manager
Volunteers hold a special place in the hearts of the communities they serve. While volunteers are an asset in most circumstances, the risk exposures can be significant, and should be actively managed. Managing volunteer risks begins with the recruitment process. Volunteer positions should be well defined, and physical demands identified. Volunteers should be formally oriented to your agency’s way of doing business, rules, operating procedures, and safety protocols/training. All of this should be well-documented, and similar in manner to the way paid employees are recruited, trained, and managed.
Liability exposure arising from the acts of volunteers and employees are similar in nature. However, when volunteers are not properly trained, oriented, directed, managed, and controlled, the liability exposure is greater. Fortunately, members and their volunteers are covered under the Authority’s Memorandum of Coverage – Liability for losses arising from volunteer activities; provided the volunteer is performing duties at the member’s direction and control. Therefore, to mitigate liability exposures arising from the use of volunteers, members must recruit, screen, orient, train, supervise, and control volunteers in the same manner as employees. For example, based on the nature of the volunteer duties, a criminal background check should be performed; and, if volunteers will be driving on behalf of the agency, their driving record should be evaluated and monitored.
Many members have vibrant volunteer programs with opportunities for volunteers of all age groups. When employing minors, members are encouraged to obtain authorization from their parent, or legal guardian. Authorization should include the parent/guardian’s consent to seek medical care and treatment in the event their child is injured while volunteering/working for your agency. In one case, a minor was denied medical treatment by a physician at an industrial clinic because the parent or guardian had not provided authorization. The injured minor was sent home and medical treatment and care was delayed.
It has long been the Authority’s recommendation to its members to either extend workers’ compensation benefits to volunteers for injuries that occur while performing volunteer duties or, to have volunteers sign a waiver similar to the waiver participants must sign in order to participate in recreational activities. Both risk management techniques are intended to mitigate loss exposure arising from the use of volunteers.
Most members, however, have chosen to extend workers’ compensation benefits to volunteers, realizing that it does make volunteering more attractive to individuals who are willing to invest their time and talents in the organization’s programs and services. This option is carried out by passing a resolution to that effect.
Lastly, it is important to align volunteer assignments and duties to their respective interests, talents, and physical abilities or limitations. Failure to do so may impact your agency’s loss history and affect the future cost of coverage.
The Volunteer Handbook Template is available to assist Authority members in management of volunteer risks, and is easily accessed at: http://cjpia.org/risk-management/resources-and-documents.
Automated External Defibrillator (AED) Policy Template Revised
By Abraham Han, Administrative Analyst
According to the American Heart Association (AHA), sudden cardiac arrest (SCA) is a leading cause of death in the United States. Each year, emergency medical services (EMS) treat about 383,000 victims of sudden cardiac arrest before they reach the hospital, and less than 12% of those victims survive.
Sudden cardiac arrest can happen at any time, and the AHA encourages organizations to have effective AED programs in place so that employees are better prepared on how to save the lives of those that have heart-related emergencies.
The Authority has recently revised the Automated External Defibrillator (AED) Program policy template. This template provides a strong foundation for an effective AED program, and it is available in the “Policy Templates” section of the Authority’s Resources and Documents library on cjpia.org.
The template provides guidance to members on establishing training and standards for the use of automated external defibrillators by non-licensed or non-certified personnel. The template also includes an AED maintenance log/checklist.
The AED Program policy template, along with the Authority’s AHA Heartsaver First-Aid/CPR & AED Training, works to better equip the Authority’s members when faced with a sudden cardiac arrest situation.
For questions regarding the Automated External Defibrillator (AED) Program, please contact your assigned Risk Manager.
AB 1250 (Jones-Sawyer) Update
By Abraham Han, Administrative Analyst
AB 1250 (Jones-Sawyer) was recently amended to clarify which entities and contracts are not applicable to the bill. AB 1250 has been a contentious bill because it was originally written to create several burdensome requirements for cities and counties to contract out for services.
The recent amendment removes charter cities from the bill, and it also exempts the following contracts:
- Contracts for services described in California Government Code Section 4525 or 4529.10.
- Contracts that are subject to Chapter 1 (commencing with Section 1720) of Part 7 of Division 2 of the California Labor Code.
- Contracts for public transit services, including paratransit services.
- Contracts for street sweeping services.
- Contracts for solid waste handling services.
- Renewal of existing contracts or awards of contracts to perform the same services as other contractors, if those contracts cause neither the displacement of city employees nor the reduction of city employee positions.
The bill has passed through the California State Assembly (as amended) and resides in the California State Senate as of this writing. The Authority will continue to monitor AB 1250 to determine how the bill (and any future amendments) might affect its members.
If you have any questions, please contact Abraham Han, Administrative Analyst.
The Court Report
County Might Be Liable for Killing of Woman by Dogs
Justice Collins Says That Under the Facts Pled, Governmental Immunity Would Fall, Citing Mandatory Duty to Impound Dogs Who Are Stray, Unlicensed or Running at Large
(Posted on the Metropolitan News Enterprise website, June 15, 2017)
The County of Los Angeles faces possible liability, under a Court of Appeal decision yesterday, for the wrongful death of a woman who was attacked, while taking a morning stroll, by four pit bulls who had jumped over a fence.
Alex Jackson, owner of the dogs—who were guarding his marijuana operation—was sentenced in 2014 to five years to life in prison for second degree murder.
Yesterday’s decision reverses a judgment of dismissal that was entered after Los Angeles Superior Court Judge Mel Red Recana sustained demurrers without leave to amend based on governmental immunity. It also affirms the judgment to the extent Recana barred two causes of action which the plaintiffs—the husband and daughter of the deceased—indicated on appeal they did not wish to pursue.
The unpublished opinion instructs that the trial court overrule the demurrers to causes of action for causes of action for negligence, public nuisance, and wrongful death, and allow the plaintiffs to amend the complaint to allege compliance with the government claims statute or set forth why noncompliance should be excused.
Exception to Immunity
Writing for Div. Four of this district’s Court of Appeal, Justice Audrey Collins said that Government Code §815.6 sets forth an exception to government immunity “[w]here a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury.” It imposes liability “for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.”
The jurist noted that the County Code §10.12.090 says the director of the Department of Animal Care and Control “shall capture and take into custody” unlicensed or stray dogs or dogs “running at large.” The word “shall,” she noted, rendered the duty “mandatory.”
Taking as true the allegations of the complaint, demurrers should not have been sustained, she said, because it was averred that the department failed to carry out its mandatory duty.
The department had cited Jackson for having dogs that were unlicensed, and he admitted that they were strays.
“The dogs therefore fell within at least one of several categories of dogs that ‘shall’ be impounded,” Collins wrote, “and there was no discretionary action necessary.”
Allegations of Complaint
The complaint alleged that the county had actual knowledge that packs of pits bulls had in the past escaped from Jackson’s property and attacked people, as well as their pets and livestock. At Jackson’s trial, evidence was adduced that seven altercations involving his dogs were reported to department in the 18 months preceding the May 9, 2013 attack on Pamela Devitt, 63.
She died on the way to the hospital from loss of blood. There were 150 to 200 puncture marks and one of her arms was severed.
The attack took place in Littlerock, an unincorporated area north of the San Gabriel Mountains.
A letter from “Concerned employees” who worked in the department’s animal shelter in Lancaster had written to higher-ups in the department management and to the Board of Supervisors, prior to the attack on Devitt, telling of the situation in Littlerock. They alleged that the department was failing to “enforce proper processes and procedures that would have resulted in the dogs being impounded, and to properly respond to complaints from the public over several months seeking protection from dogs running at large from the Jackson property and attacking people and livestock in the…area.”
Notwithstanding that letter, the county did not act to impound the dogs.
(Marcia Mayeda, director of the department at that time, has retained her position.)
The county argued on appeal that the ordinance is “not designed to protect against the risk of mauling death.” Rather, it insisted, it was in the nature of a licensing law, as evidenced by the “de minimis monetary penalty for maintaining unlicensed dogs” and because the ordinance “does not otherwise evidence an intent to prevent the public from physical harm.”
“The apparent object to be achieved by LACC section 10.12.090 is to ensure the capture of dogs that do not meet certain criteria, and have those dogs sequestered. The requirement that stray dogs, unlicensed dogs, and dogs running at large be captured and taken into custody suggests that the purpose of the ordinance was to capture dogs that lacked responsible ownership, and contain them in a space away from the public. The removal of certain dogs from public areas was not an “incidental benefit resulting from a procedural licensure provision,” as defendants argue. If that were the case, licensed dogs running at large, licensed sick dogs, or licensed injured dogs—all of which are subject to capture under LACC section 10.12.090—would not be included in the statute. Rather, the main thrust of LACC section 10.12.090 makes clear that dogs not meeting certain criteria are to be separated from the public and contained within a shelter.”
“The director shall place animals taken into custody in the county animal shelters or appropriate facilities.”].)
The case is Devitt v. Los Angeles County Department of Animal Care and Control, B270577.
The Devitts were represented by William E. Wegner of Davies Wegner Law Corp., Olesia Levine and Eric Levine of The Levine Firm, and Jeffrey I. Ehrlich. Deputy County Counsel Diane C. Reagan was joined by Justin Reade Sarno and Jill Williams Carpenter of Rothans & Dumont in presenting arguments for the county.
The Court Report
Salary History is OK for Setting Pay, Court Rules
(Posted on the Society for Human Resource Management website, May 1, 2017)
A 9th U.S. Circuit Court of Appeals decision contradicts other appeals court rulings by holding that salary history alone may be used in setting pay–an appellate split that the Supreme Court may have to resolve.
The plaintiff in this case is Aileen Rizo, a math consultant for Fresno County, California, schools. Over lunch with male colleagues Rizo, learned that she was paid less than all of them, though they had the same job. She sued, claiming a violation of the federal Equal Pay Act.
A district court determined that the county’s reason for her lower pay—prior salary—was “so inherently fraught with the risk … that it will perpetuate a discriminatory wage disparity between men and women that cannot stand, even if motivated by a legitimate nondiscriminatory business purpose.”
But the 9th U.S. Circuit Court of Appeals reversed on April 27 (Rizo v. Yovino, No. 16-15372), concluding that, under the Equal Pay Act, prior salary can be a factor other than sex if it supports a business policy and the employer uses the factor reasonably in light of its stated purposes and practices.
The decision on the applicability of the federal Equal Pay Act does not affect state laws, such as one in Massachusetts that takes effect in 2018, that prohibit employers from asking about salary history in job interviews.
Fresno County Claims Business Reasons for Policy
Fresno County claimed four business reasons for relying exclusively on prior salary:
- The policy is objective.
- The policy encourages candidates to leave their current jobs for positions with the county because the county always pays new employees 5 percent more than their old salary.
- The policy prevents favoritism and ensures consistency.
- The policy is a judicious use of taxpayer dollars.
The appeals court sent the case back to the district court to examine whether Fresno County’s reliance on prior salary in setting pay effectuated some business policy and used prior salary reasonably. The 9th Circuit rejected the district court’s determination that salary history cannot be the only factor for setting pay. But the 10th and 11th Circuits have reached the opposite conclusion (in Angove v. Williams-Sonoma Inc., 70 F. App’x 500, 508 (10th Cir. 2003), and Irby v. Bittick, 44 F.3d 949, 954 (11th Cir. 1995), respectively).
Plaintiff’s Lawyer Notes the Split in Authority
Rizo’s attorney hasn’t decided his next move but did note that the case may go to the U.S. Supreme Court since there now is a split at the appellate court level. “The logic of the decision is hard to accept. You’re OK’ing a system that perpetuates the inequity in compensation for women.”
State Laws May Have Broader Protections
Already some state laws provide broader coverage than the Equal Pay Act. Massachusetts, for example, has a prohibition on inquiring about salary histories. As of 2018, employers in the Bay State may not ask about salary history before offering a job to an applicant. In addition, employers won’t be able to contact an applicant’s former company to confirm the wage amount until after an offer is made. Even then, employers will only be able to verify past wage amounts if they have written permission from the applicant.
California’s Fair Pay Act
California has the Fair Pay Act, which requires employers to explain differences between male and female employees’ pay. It tasks employers with proving that any disparities in pay between men and women doing “substantially similar” work are based on a limited number of acceptable factors, including seniority, education and “quantity or quality of production” of goods. Rizo’s claim arose before the enactment of the Fair Pay Act; she therefore did not sue under it.
The Court Report
Trail Immunity Not a Given for Public Agencies When Injuries Caused by Adjacent Property
(Posted on the Public CEO website, June 14, 2017)
Of the many immunities available under the California Government Code, “trail immunity” under section 831.4 has long shielded public entities from liability when injuries are suffered by those using public property for recreational purposes. Immunity under this section even extends to private property owners who grant public easements to public entities for those purposes. The immunity was enacted to encourage public entities and private easement grantors to allow the use of public property for recreation without the burden and expense of litigation stemming from alleged injuries on the trails leading to recreational activities.
However, an appellate court recently rejected this defense in a case involving the City of Pasadena. In Jacobo Garcia v. American Golf Corporation, the City was sued after a young child was struck in the head by a stray golf ball, which caused a brain injury. At the time of his injury, the child was in a stroller on a walkway that was part of the City of Pasadena’s Rose Bowl Loop, located next to a golf course. The child’s mother sued the City, which owns the golf course, along with the private entity that managed and operated the golf course.
The City asserted trail immunity to defend against the lawsuit. The plaintiffs countered that the dangerous condition was not the location of the walkway — insofar as its proximity to the golf course — but rather the inadequacy of the seven-foot high fences around the golf course, and other measures taken to guard against injuries that could be caused by stray golf balls. The trial court sided with the City, and the plaintiffs appealed. The issue on appeal was whether the injury was caused by a dangerous condition of the walkway for purposes of trail immunity.
Rejecting the City’s assertion and trial court’s application of trail immunity, the appellate court found that, while the City could be protected from injuries caused by the walkway itself, the immunity did not extend to dangerous conditions caused by the golf course – an adjacent public property.
In reaching its conclusion, the appellate court had to distinguish the case from a number of contradictory cases, including Leyva v. Crocket & Co., Inc., a case decided in January of this year. The Leyva court evaluated strikingly similar facts: a pedestrian traveling along a public path adjacent to a golf club suffered an injury caused by a stray golf ball. However, in Leyva, the appellate court applied trail immunity and extended the cloak of immunity to a private golf club owner who had granted adjacent easements to a county for public unpaved recreational hiking trails.
The difference between the Leyva opinion and the Garcia opinion is a matter of policy. The appellate court honed in on fairness and disincentives for immunizing the City. In particular, the court deemed it fair to deny the City immunity for a dangerous condition on the golf course that increases the risk of harm by third party conduct and opined that cloaking the City with immunity would disincentivize it from correcting the dangerous condition.
The appellate court has thus limited a public agency’s trail immunity under certain circumstances. With Garcia in mind, public entities and private owners/operators alike should ensure that sufficient preventative measures are considered and taken when evaluating recreational properties adjacent to public trails.
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