Issue 49-March 2016
Save the Date: 21st Annual Risk Management Educational Forum
Lay Rescuer Epinephrine Auto-Injector Training Standards
Use of an Old Social Media Policy Is New Chipotle Gaffe
Panel Upholds $4 Million Award in Shooting by Deputies
News: Worthy
The Authority is awarded Accreditation with Excellence by the California Association of Joint Powers Authorities
The California Joint Powers Insurance Authority (The Authority) is proud to announce that it has been awarded Accreditation with Excellence by the California Association of Joint Powers Authorities (CAJPA) for a three-year term beginning January 12, 2016.
CAJPA was created in 1981 as an association of risk-pooling Joint Powers Authorities (JPAs) to meet the need for communication and cooperation among JPAs. At that time the pooling concept for insurance purposes was relatively new and fairly obscure. JPAs often operated in uncharted waters as they wrestled with new and perplexing problems. CAJPA thus began to serve as an information and educational network; one that has grown to also promote unique insurance and risk management concepts and services for its members.
Today, the number of in-California risk-pooling JPAs has grown to about 150, each with diverse organizational structures, operational characteristics, and administrative approaches. This diversity serves as one of the greatest strengths of the pooling movement, as each JPA is more naturally developed to meet specific needs of its membership.
Although different, pools in California operate largely autonomously from regulations issued by the Department of Insurance. JPAs must make various state-required filings and reports, but the true responsibility of pools for prudent management and fiscally sound practices is borne by the pools themselves, their member entities, and to the industry as a whole. As such, pools are responsible for a standard of operation both to themselves and to other JPAs.
In 1988, CAJPA introduced an accreditation program that is considered the nation’s first such program. Its purpose is to foster development and enhancement of expertise and professionalism within its membership. By formalizing a self-regulating program through accreditation, members of pools benefit from higher operating standards and financial controls. It is CAJPA’s answer to the question: “Who can help us ensure our JPA is being operated in the best way possible?”
The foundation of the accreditation program is:
- To promote professional management and fiscally sound practices of risk-sharing JPAs
- To provide industry standards that can be used by member entities, board members, and the public in evaluating levels of performance and compliance with State-required and commonly accepted practices
- To develop a self-regulating process that is more thorough, responsive and less expensive to the taxpaying public than State or Federal regulations
- To assist managers in achieving high standards and assure governing boards of professionalism and meeting industry standards
- To provide an opportunity to compare certain policies and procedures to the accreditation standards and other pools in the industry
More information on CAJPA’s Accreditation program can be found on their website at www.cajpa.org.
Photo: Curtis Morris, Executive Committee President; Dr. Karla Rhay, representing CAJPA; Jonathan Shull, CEO of the California JPIA.
News: Worthy
Save the Date: 21st Annual Risk Management Educational Forum
“Shelter from the storm” is a familiar idea that conjures up images that illustrate times in the human experience where a sense of calm, safety and warmth replaces feelings of danger, crisis and even failure.
Storms rage in the world of risk, bringing difficulty and hardship, and imposing real costs for public agencies and the communities they serve. For three days in October, the California JPIA is calling you away to its 21st annual Risk Management Educational Forum. Entitled “Weathering the Storm,” safe harbor will be provided at the Hyatt Regency Indian Wells Resort & Spa on October 12 – 14, 2016.
Calmness is not the absence of a tempest. But at this year’s Forum, you will be encouraged by our speakers and experts who know how to shield you from buffeting waves and stinging winds. You will join colleagues and peers also wanting protection from the storm, where knowledge, conversation, and relaxation can calm fears and boost hope.
Begin your plans now to seek shelter, and let us help you weather the storm.
Participants at last year’s forum had this to say:
“The forum is always excellent, and I look forward to it each year. Thanks again for putting on another great event!”
“Great conference with great sessions. Great information presented without being too long.”
“Love the App. Saved a ton of paper, and it was really convenient.”
“Really appreciate the California JPIA operation, willingness to assist members and dedication.”
“Staff, service, food, and attention to details were all outstanding.”
Mark your calendar for October 12 – 14, 2016. Registration opens in early May!
News: Worthy
LinkedIn Discussion Group
Did you know that the Authority has a LinkedIn discussion group? Created in the interest of members wishing to discuss with each other how common issues are being addressed, the Authority’s discussion group is adding to the number of places, such as Academies, the Risk Management Educational Forum, and Risk Managers Roundtables, where members can talk shop.
During Authority-sponsored events, members sometimes learn that issues of importance to them are not unique to their agency. Because it is often helpful for members to discuss with each other how they manage common concerns, the Authority’s discussion group serves as another alternative for members at different agencies to engage with one another. This is a members-only discussion group, which is run through LinkedIn’s website.
The discussion group serves as a forum for Authority members to post comments, pose questions, submit ideas, and obtain feedback on all issues regarding local government risk management. With the creation of this forum, the Authority aims to provide members with focus on local government issues, rigorous insights, and best practices to help their agencies reduce risk. Discussions are initiated by members or Authority staff, who can post topics of interest on the group page. To take part in the discussion, members can type in their comments to weigh in on the posted topic or on other comments. The group is not facilitated by Authority staff, although staff can also provide comments.
To find the Authority’s group on LinkedIn, log into your LinkedIn account, and use the drop-down list on the left side of the search box at the top of the page to select “Groups”. Typing “California Joint Powers Insurance Authority” into the search box will bring up the results page, and the Authority’s group is the only result that should appear.
If you don’t have a LinkedIn account, but would like to participate in the discussion group, you can join LinkedIn by visiting the LinkedIn website and following the procedures to join. This discussion group is restricted to Authority members only, and members are expected to abide by the Authority’s terms of use for social media. After requesting permission to join the group, you will receive a welcome message and will immediately be able to post topics for discussion or comment on posts.
For questions about this group, please contact Courtney Morrison, Administrative Analyst, by email or by phone at (562) 467-8779.
News: Worthy
Academy Update
Executive Academy
The Executive Academy was held January 20 – 22, 2016 at the Miramonte Resort in Indian Wells. The two-day Academy was geared for current and emerging city managers and agency executives. It addressed the legal, financial, and structural constraints of governmental agencies through the active exchange of ideas and information.
Topics covered in the Academy included: Role of an Executive in Risk Management, Leadership, and Communication presented by Jon Shull, CEO of the California JPIA; How the California JPIA Can Assist You in Protecting Your Agency Against Claims and Losses presented by Norm Lefmann, Assistant Executive Officer and Jeff Rush, Workers’ Compensation Program Manager of the California JPIA; How to Handle Social Media and Public Relations: Dealing with the Media presented by Scott Grossberg, Founding Partner with Cihigoyenetche, Grossberg, and Clouse; The Psychology of Crisis Management and Key Steps to Effective Succession Planning presented by Jeff Bills, President of Confidence Consulting; Equip Your Community with Racial Equity presented by Julie Nelson, Director of the Government Alliance on Race and Equity; Moving from Conflict to Consensus presented by Jim DeLizia, Principal of DeLizia Consulting Services; and Working Effectively with Councils & Boards presented by Fred Latham, retired City Manager with the City of Santa Fe Springs.
“I always enjoy and learn a lot from this Executive Academy,” expressed Jarb Thaipejr, City Manager with the City of Loma Linda. Jaime Fontes, City Manager with the City of Santa Paula, said, “Scott Grossberg’s presentation is essential information for any City Manager who wants to be successful in dealing with the media.” Barb Adair, Assistant General Manager, with the Desert Recreation District, attended the Academy for the first time and commented, “The best aspects of the Academy were the educational topics, networking opportunities, and California JPIA’s wonderful, responsive team.”
Parks and Recreation Academy
The Parks and Recreation Academy was held February 9 – 11, 2016 at the Shorebreak Hotel in Huntington Beach. The Academy focused on strategies for parks and recreation directors, managers and supervisors to develop new programs and evaluate existing ones. Butch DeFillippo, managing partner for PlaySafe, LLC and his team as well as Scott Grossberg, Founding Partner with Cihigoyenetche, Grossberg, and Clouse, facilitated the three–day academy. The Academy program consisted of the following twelve topics:
- Parks and Recreation Risk Management
- Unique Parks and Recreation Facilities with Unique Challenges
- Learn the Secrets to Lawsuit Proofing Your Public Facilities
- What’s the Best Way to Keep from Being Sued? (and, if we are, how to lessen the blow)
- Little Known Ways for Feeling Safer in an Unsafe Tech World
- Preparing a Parks and Recreation Master Plan
- Public Input Process
- Aquatics Risk Management
- What Everyone Ought to Know About Background Checks, Volunteers, and Part-Time Employees
- Playground Maintenance and Safety
- Safe Facilities: Conducting a Facilities Risk Review
- Recreation for Tomorrow and Creating an Action Plan
Thirty-two participants representing twenty-one agencies attended the Academy.
Attending the Academy for the first time and from one of the Authority’s newest member agencies, Kerri Zessau, Recreation and Library Manager, with the City of Monrovia, commented, “Today’s Parks and Recreation Academy far exceeded my expectation. The information I received and the tools I was given will not only benefit me but my entire City. I can’t wait to share the information with other departments.”
For more information about the Academies, please contact Michelle Aguayo, Training Coordinator.
News: Worthy
Enhancements to E-Learning
E-learning is one of the modes of training the Authority utilizes in its training program. E-Learning is the presentation of on-demand training content via the Internet, meaning that it can be viewed anytime and anywhere. This type of learning involves instruction delivered through web-browser technology to a participant’s computer or mobile device.
The California JPIA recently expanded its e-learning library to include approximately 800 courses that can be viewed individually or in a group setting. Group e-learning is a new feature that was rolled-out with the newly expanded library. Group e-learning is similar to the Authority’s classroom instructor-led training, in which participation is recorded and certificates are provided upon completion of training. This mode of training has the advantage of being scheduled on demand and the training is available 24 hours per day, 7 days per week when required outside of normal office hours. A member agency can view the entire e-learning course at one time or it could schedule the e-learning course over a series of sessions, such as in tailgate training.
Members schedule group e-learning in the same manner as instructor-led training. Once scheduled, it appears on the training calendar as a private classroom training that only the member may see. Clicking on the title in the calendar would allow the individual or the registrar to register themselves or others. There is no cost to the member for e-learning training.
E-Learning courses are found in the Course Catalog. Members will find the course catalog once they log into myJPIA by clicking on the Course Catalog tab in the Training menu. Using the search features of the catalog, Members will find all the e-learning courses by clicking on the All Delivery Types search field and clicking E-Learning. To further refine the search simply click on the All Categories search field and find the category of interest.
The main categories are:
- Compliance
- Conflict
- Human Resources
- Management
- Occupational Skills
- Organizational Values
- Safety
- Security
- Teamwork
The Authority classifies e-learning training opportunities as follows: Regulatory—those that Cal-OSHA or other regulatory agencies require for our members to be in legal compliance with the law; Loss Driven—those that address pool losses; Best Practices—those that are considered best risk management practices; and Professional Development—those that enhance individual skills and better the Member organization.
To begin to utilize the Authority’s e-learning users must have a username and password to log into myJPIA. If you haven’t yet received a username and password to access the site’s e-learning, click on the myJPIA Login in the upper right corner of the California JPIA home page, then click on the Registration button. Once you provide your information, you will receive your username and password in one business day.
Risk Solutions
Lay Rescuer Epinephrine Auto-Injector Training Standards
By Maria Galvan, Risk Manager
In October 2013, Governor Jerry Brown signed SB 669 into law. The bill requires the California Emergency Medical Services (EMS) Authority to approve authorized training providers and to establish and approve minimum standards for training in the use and administration of epinephrine auto-injectors. Certification from an approved training program will allow a layperson or off-duty EMS personnel to obtain a prescription for, and administer, an epinephrine auto-injector for use on a person experiencing anaphylaxis, with civil liability protection, when acting in good faith and not for compensation.
Lay rescuer epinephrine auto-injector training certification standards were approved by the Office of Administrative Law on October 16, 2015 and became effective January 1, 2016. As of the first of the year, the EMS Authority could begin reviewing and approving training programs to provide training and certification for the administration of epinephrine auto-injectors to lay rescuers and off-duty EMS personnel. The EMS Authority has not approved any training programs since the standards became effective.
The California JPIA’s current American Heart Association approved CPR/AED/First Aid Safety course covers epinephrine auto-injectors administration, but has not been submitted to the EMS Authority for approval. It is important to note that under the California Health and Safety Code § 1799.102, no person who in good faith, and not for compensation, renders emergency medical or nonmedical care or assistance at the scene of an emergency shall be liable for civil damages resulting from any act or omission other than an act or omission constituting gross negligence or willful or wanton misconduct. It is the intent of the Legislature to encourage other individuals to volunteer, without compensation, to assist others in need during an emergency, while ensuring that those volunteers who provide care or assistance act responsibly.
The new training regulations are specific to individuals or agencies looking at obtaining an epinephrine auto-injector prescription for administration to someone experiencing anaphylaxis. Members considering obtaining an epinephrine auto-injector prescription for their agency programs would need to submit their proposed training program to the EMS Authority for approval. If you have questions about SB 669 or the training standards, please contact your assigned Risk Manager.
The Court Report
Use of an Old Social Media Policy Is New Chipotle Gaffe
(Reprinted from the Society of Human Resource Management website, March 22, 2016)
Social media cases represent a ‘wild expansion’ of protected concerted activity
If you think your organization’s social media policies are up to date and comply with current National Labor Relations Board (NLRB) rulings, make sure old versions of your policies aren’t still circulating. These old versions may come back to bite, as Chipotle discovered in recent litigation.
The board’s social media rulings are a “wild expansion” of protected concerted activity under the National Labor Relations Act (NLRA), said Phillip Wilson, president and general counsel with the Labor Relations Institute, a labor relations consulting firm in Broken Arrow, Okla. The rulings ultimately may be subject to challenge in federal appeals courts, he noted.
Nevertheless, many employers have adjusted their policies to comply with the rulings.
Even under the board decisions, employers still may monitor employee tweets, just not take action on social media postings that are protected concerted activity.
Tweets About Snow Days, Low Wages
An NLRB administrative law judge (ALJ) ordered the Chipotle restaurant chain on March 14 to rehire an employee who was fired two weeks after posting complaints about snow day policies on Twitter and immediately after distributing a petition on required breaks.
While reviewing employee Tweets, Chipotle’s national social media strategist on Jan. 28, 2015, saw tweets posted by James Kennedy on working conditions for Chipotle employees in its Havertown, Pa., restaurant. Kennedy was a Chipotle crew member there, responsible for food preparation, serving food to customers, washing dishes and restocking supplies.
One of Kennedy’s tweets included a news article concerning hourly workers having to work on snow days when other workers were off and public transportation was shut down. His tweet addressed Chris Arnold, the communications director for Chipotle, stating: “Snow day for ‘top performers’ Chris Arnold?”
In the other tweets, Kennedy replied to tweets posted by customers. In response to a customer who tweeted “Free chipotle is the best thanks,” Kennedy tweeted “nothing is free, only cheap #labor. Crew members only make $8.50hr how much is that steak bowl really?” Two managers—an area manager and the restaurant manager—met with Kennedy on Jan. 29, 2015, handed him Chipotle’s social media policy and asked him to remove the tweets. Kennedy agreed to remove the tweets, and did so. The social media policy given to Kennedy was out of date, but it was the one that the national social media strategist provided to the area Chipotle manager.
Soon after this encounter, Kennedy began circulating a petition about meal and rest breaks required under state law. That February, the restaurant manager asked Kennedy to stop distributing the petition, and Kennedy said he would do so only if he was fired. He raised his voice at the restaurant manager (who testified before the ALJ that she felt intimidated). She fired him for insubordination, and Kennedy sued under the NLRA.
ALJ Ruling
The ALJ ruled that Kennedy’s tweets concerned wages and working conditions, which the NLRA protects.
“The issues raised in Kennedy’s tweets are not purely individual concerns, pertaining
only to Kennedy. He was not seeking a pay raise for himself, or requesting that he be excusedfrom work when it snows heavily,” the ALJ said. “Receiving low hourly wages and being required to report to work despite heavy snow are issues common to many of Chipotle’s hourly workers nationwide, and certainly to those at the Havertown restaurant.”
The ALJ concluded that Kennedy’s postings were protected concerted activity covered by the NLRA.
Chipotle violated the NLRA when the area manager asked Kennedy to delete his tweets, the ALJ ruled. And the implicit suggestion not to post anything that would constitute protected concerted activity in the future was unlawful, according to the judge.
While Chipotle’s current social media policy is lawful, the old version was not and that was the version distributed to Kennedy, the ALJ noted.
The ALJ struck down the following provisions in the old policy:
“If you aren’t careful and don’t use your head, your online activity can also damage Chipotle or spread incomplete, confidential, or inaccurate information.”
“You may not make disparaging, false, misleading, harassing or discriminatory statements about or relating to Chipotle, our employees, suppliers, customers, competition, or investors.”
The prohibition against disclosing confidential information is problematic: “The undefined word ‘confidential’ is vague and subject to interpretation, which could easily lead employees to construe it as restricting their Section 7 rights” to protected concerted activity, the ALJ said.Also, an employer may not prohibit employee postings that are merely false or misleading unless a malicious motive is shown.
The prohibition against disparaging statements could easily encompass statements protected by Section 7, as it is overbroad and might be construed to prohibit protected concerted activity, the ALJ said.
By contrast, the prohibitions against harassing or discriminatory statements do not violate the act, the judge found.
The ALJ also held that the company violated the NLRA by prohibiting an employee from circulating a petition challenging the company’s break policy. And terminating Kennedy for circulating the petition violated the law.
Monitoring Employees’ Tweets
However, employers do not have to turn a blind eye to employees bad-mouthing them on Twitter, according to Brian Garrison, an attorney with Faegre Baker Daniels in Indianapolis. “But employers must understand that the legality of disciplining employees for conduct viewed as ‘bad-mouthing’ depends on the nature of the employee’s particular conduct,” he said.
So, if an employee disparages the quality of the employer’s product or service without relating it to any matter protected by the NLRA, that conduct likely is not protected and may result in discipline, Garrison explained. But if an employee complains about issues regarding wages, benefits or other working conditions (even while using profane language), the current board would likely view that conduct as protected, he added.
Workers do not have to use the words “union” or “unionize” to be protected, though often they do when unions are involved to improve the likelihood of success for an unfair labor practice charge, said Jim Gray of Jim Gray Consultants in Charleston, S.C. , which consults on union-organizing exposure.
Employers don’t have to ignore anything posted on social media, Wilson said. “But any response should be measured and account for the board’s position,” he said.
“Certainly any posting that violates other rules—disclosure of trade secrets, HIPAA [Health Insurance Portability and Accountability Act] confidential information, or harassment—must be dealt with. That includes discipline up to and including termination,” Wilson said.
“Pick your battles,” Wilson recommended. “If you have a situation that is egregious, don’t ignore it, even if you might end up with a board charge. Litigate the charge, but understand you may have to refuse to comply with a board order to reinstate someone and appeal that decision. This is an expensive proposition for a smaller company.”
Chipotle did not reply to a request for comment.
This case is Chipotle Services LLC, 04-CA-147314.
The Court Report
Panel Upholds $4 Million Award in Shooting by Deputies
(Reprinted from the Metropolitan News Enterprise, March 3, 2016)
Sheriff’s deputies violated the constitutional rights of a homeless couple by making a warrantless entry into the shack in which they were living, and are liable for damages they suffered as a result of being shot, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
The judges upheld a $4 million damage award to Angel Mendez and Jennifer Lynn Garcia, rejecting Los Angeles County lawyers’ contention that deputies Christopher Conley and Jennifer Pederson were entitled to qualified immunity.
U.S. District Judge Michael W. Fitzgerald ruled for the plaintiffs following a bench trial. The judge heard testimony that the defendants were among 12 officers who responded to call from an officer who believed he had spotted a wanted parolee entering a grocery store.
After searching the store unsuccessfully, the deputies received a tip that the parolee, or someone meeting his description, was riding a bicycle in front of a house in Lancaster. Conley and Pederson went to the house, along with other officers.
Gentle Persuasion
The other officers banged on the security screen outside the house’s front door while Conley and Pederson watched the back. When the owner refused entry after being told the officers lacked a warrant, they retrieved a pick and a ram in order to bust open the front door, thereby persuading the owner to open it, whereupon she was subdued and detained.
A search of the house did not produce the parolee. After the sergeant in charge gave Pederson the go-ahead to “clear the backyard,” they proceeded to the wooden shack.
Conley opened the door of the shack. He and Pederson later testified that after he pulled back a blanket used as a curtain, they saw the silhouette of an adult male holding what appeared to be a rifle pointed at them. The officers fired a total of 15 shots.
Mendez in fact was holding a BB gun, which the district judge found to have been pointed at the deputies. Mendez and his wife—who were living in the shack with the owner’s permission—were both seriously injured, with Mendez requiring amputation of his right leg below the knee.
Fitzgerald found that there was no constitutional justification for the warrantless entry and that the deputies violated the Fourth Amendment by failing to knock and announce themselves.
Reasonable Mistake
The deputies made a reasonable mistake in believing they were in danger upon seeing the BB gun, the judge ruled, thereby precluding a finding of liability for use of excessive force. But under Ninth Circuit precedent, he said, the shooting was still unconstitutional because the officers had no reason to enter the shack.
Judge Ronald Gould, writing for the Ninth Circuit, agreed that the officers’ entry constituted an unreasonable search. The Fourth Amendment, he said, is not limited to searches of dwellings, and while the shack may have been “dilapidated,” as the county asserted, it was “very clearly in the curtilage of the house,” which the deputies knew was an occupied dwelling.
The judge rejected the argument that the deputies reasonably believed that exigent circumstances existed, and were thus entitled to qualified immunity. It was clearly established at the time of the 2010 incident that a mere suspicion of the presence of a fugitive isn’t enough to justify a warrantless entry, Gould said.
A different result might occur if the deputies had been in continuous pursuit of the fugitive, he explained, but they had no information regarding his whereabouts beyond the tip about his being seen in front of the house, and “were far from sure that [he] was still (or had ever been) inside [the] house—let alone in the shack….”
No Error
The district judge did err, Gould went on to say, in finding that the deputies were not entitled to qualified immunity from the plaintiffs’ knock-and-announce claim. There was a violation, the appellate judge said, but it was unclear at the time of the incident whether the deputies, having complied with the rule before entering the house, were required to do so again before going into the shack.
To establish the law going forward, however, the panel held that “officers must knock and re-announce their presence when they know or should reasonably know that an area within the cartilage of a home is a separate residence from the main house.”
The court struck a nominal award of $1 on that claim, but otherwise affirmed the judgment.
The appeal was argued by Melinda Cantrall of Hurrell Cantrall LLP for the deputies and by David Drexler of Sherman Oaks for the plaintiffs.
The case is Mendez v. County of Los Angeles, 13-56686.
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