Issue 56-October 2016
The California JPIA’s 21st Annual Risk Management Educational Forum: Weathering the Storm, held October 12 – 14, was the best-attended forum ever held in Indian Wells with 318 people representing 74 member agencies, business partners, and Authority staff, meeting at the Hyatt Regency Indian Wells Resort & Spa.
21st Annual Forum Sets Attendance Record in Indian Wells
The California JPIA’s 21st Annual Risk Management Educational Forum: Weathering the Storm, held October 12 – 14, was the best-attended forum ever held in Indian Wells with 318 people representing 74 member agencies, business partners, and Authority staff, meeting at the Hyatt Regency Indian Wells Resort & Spa.
The weather-themed Forum led off Wednesday with the Opening Session: The Lifecycle of a Workers’ Compensation Claim, sponsored by Kutak Rock. The complexity of the workers’ compensation process was explained by a variety of subject matter expects covering everything from claim investigation to medication management and return to work. The session concluded with a mock workers’ compensation trial that provided the audience a taste of how very different the workers’ compensation legal process is compared to the liability claim process.
The opening session was followed by a well-attended First-Time Attendee Reception which then segued into the Welcome Reception and Dinner, sponsored by Carl Warren and Company and Grossberg & Hoehn, giving all in attendance an informal and relaxed opportunity to network, connect, and enjoy the evening.
On Thursday morning the Forum’s climate brought a warm welcome from the Authority’s Chief Executive Officer, Jon Shull. Assistant Executive Officer, Norm Lefmann, then introduced this year’s five finalists for the Fourth Annual Capstone Award. Each finalist was feted with a nominating video featuring scenes from their work and words from the person who nominated them. Last year’s winner, Nicki Salas, Assistant Town Manager of the Town of Apple Valley, had the honor of announcing this year’s winner: Susan Crumly, Human Resources and Risk Manager for the City of Bellflower.
Lt. General Russel L. Honoré, USA (Ret.) delivered this year’s keynote speech: Resilient Leadership: Prepare Today to Prevail Tomorrow. Sponsored by Brit Global Specialty, the General, a genuine American hero, managed the city of New Orleans’ recovery in 2005, post-Hurricane Katrina by taking charge of the military relief efforts. The General provided rare, valuable insight on success in the “New Normal,” where preparedness, innovation and an entrepreneurial approach are crucial to address future challenges.
The Forum’s breakout sessions on Thursday addressed issues relevant to public agencies including: Looking out for Public Safety Injuries, The Role of Elected Officials, A Liability Case Law Update, Managing Your Medical Clinic, Managing Your Volunteers, Development of Criminal Background Check Policies, Fit for Duty Evaluations, The Life of a Liability Claim, Authority Online Offerings, Managing BMX Bike Use, Creating an Optimal Safety Culture, Police Body Cameras, Knowing the Property Program, and Property Damage Recovery Program. Most presentations are accessible via this link: Forum Agenda.
The storm cleared with Friday’s two Closing Sessions: Active Shooter Response and Aftermath and Cyber Exposures. The first was presented by Ken Hernandez, Director of Risk Management for San Bernardino County, and Eric Vetere, Safety/Emergency Manager for San Bernardino County Unified School District. Together, they discussed how their organizations responded to and the ongoing recovery following the tragic terrorist event of December 2, 2015. The second session was presented by a panel of four subject matter experts and covered cyber exposure risks, Authority cyber coverage, and best risk management practices for cyber risk.
The success of this year’s Risk Management Educational Forum was significantly owed to the overwhelming support of over 40 sponsors, who contributed more than $180,000 toward the various Forum programs and activities. The Authority has always considered its business partners to be of strategic importance. This is true with respect to how they jointly work with members in managing risk, and also pertains to the role they play in underwriting a significant portion of the Authority’s Risk Management Educational Forum. That has allowed us to continue to deliver an exceptional educational experience for members.
Mark your calendar now for the 22nd Annual California JPIA Risk Management Educational Forum to be held October 11 – 13, 2017, at The Fess Parker Santa Barbara Hotel in Santa Barbara.
Capstone Award Winner Announced at 2016 Risk Management Educational Forum
The Capstone Award is presented annually to an individual at a member agency who best exemplifies the practice of risk management. The 2016 Capstone Award was presented to Susan Crumly from the City of Bellflower at a ceremony held during the 21st Annual California JPIA Risk Management Educational Forum, October 12-14, 2016, at the Hyatt Regency Indian Wells Resort & Spa.
Susan, the City of Bellflower’s Human Resources and Risk Manager, was selected from five finalists and was chosen for her exemplary risk management efforts. Some of Susan’s accomplishments include establishing an in-house training program to ensure each department’s understanding of human resources and risk management policies and programs, developing an employee training database to track each employee’s training history with the city, and ensuring that all mandatory trainings for staff and governing board members are completed.
Each Capstone finalist was presented with an award to honor their achievements. In addition to Susan, the following individuals were recognized as a finalist for this year’s Capstone Award:
- Roberta Greathouse, Human Resources Director for the City of Seaside
- Karen Johnson, Personnel Analyst for the City of Temple City
- Tony Moreno, Administrative Analyst II for the City of La Mirada
- Arabo Parseghian, Senior Management Analyst for the City of La Cañada Flintridge
The 2017 Capstone Award will be presented in a ceremony at the 2017 Forum, which will be held from October 11-13, 2017 at The Fess Parker Resort in Santa Barbara.
Photo: Norm Lefmann, Assistant Executive Officer for the California JPIA, with 2016 Capstone Award winner Susan Crumly of the City of Bellflower.
Meet Our Newest Member
The Authority is pleased to welcome its newest member, the City of Azusa. The City of Azusa holds the distinction as the inaugural member of the Authority’s Excess Liability Program. Additionally, the City joined the Authority’s Primary Workers’ Compensation Program and the Property Program.
Founded in 1887 and incorporated as a general law city on December 29, 1898, Azusa is located at the entrance to the San Gabriel Canyon at the base of the San Gabriel Mountains. With a population of roughly 45,000, the city spans approximately 9.13 square miles. Azusa is known as the Canyon City. The community celebrates a strong sense of history and family with diverse neighborhoods and a vibrant industrial base.
The City of Azusa has its own Police Department and maintained its own fire department until 1982 when the city fire department merged with the Los Angeles County Fire Department. The City operates the Azusa Light & Water Department serving approximately 16,500 electric and 23,000 water customers. The City’s Recreation and Family Services Department is responsible for maintenance of 52 acres of park. Facilities include a recreation center, aquatics center, senior center, woman’s club, museum, library, and community garden.
The City of Azusa was formerly a member of the Independent Cities Risk Management Authority risk management pool. Troy Butzlaff, City Manager, stated “Over my 27-year career in public service, I have worked for cities that have been self-insured, in another joint powers insurance authority, and a member of the California JPIA. I can truly attest to the quality of services and programs offered by the California JPIA. When the opportunity arose to select a new insurance provider, I had no reservations in recommending to the City Council that the City submit an application to become a member of the California JPIA. The California JPIA really understands risk management and the liability issues facing public agencies today. I don’t see them as an outside agency, but more like an extension of staff. I am pleased that the California JPIA Board accepted our City as one of the first public agencies in the newly created Excess Liability Pool Program. I look forward to being an active and contributing member of the California JPIA.”
The Authority’s Underwriting Committee reviewed the City of Azusa membership application and initial risk management evaluation report and recommended Executive Committee approval. Following input from members of the Board of Directors, the Executive Committee approved membership for the City of Azusa beginning July 1, 2016.
The Authority’s membership is composed of 116 municipal agencies throughout California: 92 cities, 18 joint powers authorities, and six special districts.
Welcome City of Azusa!
Workplace Harassment Prevention Training is Now Mandatory for Elected Officials
By Kelly A. Trainer and Traci I. Park, Burke, Williams & Sorensen, LLP
The number of high-profile harassment cases against elected local government officials has been on the uptick in California over the past few years. As a result, the California Fair Employment and Housing Commission took the position that elected officials ought to be provided with workplace harassment training required for all supervisors throughout the State by AB 1825. Despite the FEHC’s position and although it has long been recommended as a best practice by employment law practitioners, existing law did not specify that harassment training was required for elected officials or members of local legislative bodies, and some public entities took the position that the mandatory supervisor training requirement did not apply to its elected officials.
California Assembly Bill 1661 was designed to eliminate this confusion, in part due to the costs of litigating and settling harassment claims, which according to the Bill’s sponsors, “results in a significant loss of revenue and diverts funds from essential constituent services.” In passing AB 1661, the Legislature declared that harassment training for local elected officials is “a matter of statewide concern, not merely a municipal affair.” Governor Brown signed AB 1661 into law on September 29, 2016. A link to the new law is provided here: http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201520160AB1661
AB 1661 applies to any city, county, city and county, charter city, charter county, charter city and county, or special district, and it mandates harassment prevention training for any member of a local agency legislative body and any elected local agency official who earns any type of compensation, salary, or stipend. The two-hour training must be completed within six months of taking office, and every two years thereafter. A local agency official who serves more than one local agency may satisfy the training requirements once every two years, without regard to the number of local agencies he or she serves.
The Bill also requires that if an entity intends to develop its own training curriculum, it must consult with the city attorney or county counsel regarding the sufficiency and accuracy of the proposed content. The training must include information and practical guidance regarding the federal and state statutory provisions concerning the prohibition against, and the prevention and correction of, sexual harassment and the remedies available to victims of sexual harassment in employment. The training shall also include practical examples aimed at instructing the local agency official in the prevention of sexual harassment, discrimination, and retaliation, and shall be presented by trainers or educators with knowledge and expertise in the prevention of sexual harassment, discrimination, and retaliation. The training may be done at home, in person, or online.
Local agencies providing the training must provide all participants with proof of participation, and must maintain records of attendance for at least five years.
It is anticipated that the Department of Fair Employment and Housing will likely issue regulations clarifying these training obligations.
The Court Report
Ninth Circuit Dismisses Action for Wrongful Towing
(Reprinted from the Metropolitan News Enterprise, October 12, 2016)
Judge Stephen Reinhart Dissents, Says Officer’s Unreasonableness in Refusing to Examine Proof That Parking Tickets Had Been Paid Caused Qualified Immunity to Vaporize
A private cause of action does not exist in California based on a Penal Code section which renders it a misdemeanor for a public officer to seize property without authority, the Ninth U.S. Circuit Court of Appeals held yesterday, in a 2-1 opinion.
The unpublished majority decision, signed by Judges Ferdinand Francis Fernandez and John B. Owens, affirms the dismissal of an action by Scarlet Timphony and her son, James Timphony, over the towing of her automobile in 2014. Their causes of action against the City of Pasadena—for carjacking and violation of federal civil rights—had been dismissed earlier, and yesterday’s decision concerned the scrapping of their remaining claim against the impounding officer, Rafael Verduzco.
Fernandez and Owen agreed with District Court Judge George Wu, who ordered the dismissal, that Verduzco’s qualified immunity protected him against a claim under 42 U.S.C. §1983 for a civil rights violation and that his conduct was not so outrageous as to authorize an action for intentional infliction of emotional distress.
Dissenting, Judge Stephen Reinhardt asserted that the unreasonableness of the officer’s conduct—in refusing to look at proof that the parking tickets giving rise to the impoundment had been paid—rose to such a level of unreasonableness as to strip the officer of immunity.
Under Vehicle Code § 22651(i), a vehicle may be impounded if the owner has five or more parking tickets that have been unpaid for 21 days or longer.
Penal Code Provision
The Penal Code section in issue was §146 which provides that a “public officer…under the pretense or color of any process or other legal authority” commits a misdemeanor if he or she “without a regular process or other lawful authority” commits certain acts, including seizing “any property.”
The majority opinion said:
“Under California law, a criminal statute authorizes private civil suits only where the legislature intended to create a private right of action or where compelling reasons of public policy justify the recognition of such a right….The text and legislative history of §146 do not suggest that the legislature intended to create a private right of action. The statute simply creates criminal liability for certain forms of official misbehavior. Nor is there a compelling reason of public policy to authorize civil suits under § 146 given the remedies available under 42 U.S.C. §1983.”
Fernandez and Owens went on to agree with Wu that qualified immunity shields Verduzco against liability under the federal civil rights statute. They wrote:
“Although towing constitutes a seizure under the Fourth Amendment, it is well established that it is reasonable if it serves the public purposes of easing traffic flow, promoting public safety and convenience, or mitigating the risk of vandalism or theft….A reasonable officer in Verduzco’s situation could believe he was acting legally in towing the car despite its driver’s protest. A reasonable officer, moreover, would not believe he was violating the Constitution in refusing to engage in on-the-spot adjudications of evidence and concluding that any dispute over the validity of the towing could be determined later by other municipal authorities.”
It was on that point that Reinhardt differed with his colleagues, declaring:
“Timphony was present when his car was being towed. He told the officer that he had paid the outstanding parking tickets that supposedly authorized the towing, and that the receipts to prove it were in the glove compartment. The officer refused to allow him to retrieve those receipts and refused to look at them before proceeding with the towing. This conduct on the part of the parking enforcement officer was objectively unreasonable. I would, therefore, reverse the District Court’s judgment that the officer is entitled to qualified immunity. At the very least, I would grant the Plaintiffs leave to amend their complaint so that they could allege facts that would make it even clearer that the officer’s decision was objectively unreasonable.”
The majority opinion also said:
“In order to state a claim for intentional infliction of emotional distress in California, a plaintiff must allege, among other things, ‘outrageous’ conduct by the defendant….The conduct at issue here does not rise to that level.”
The plaintiff’s attorney, Leonard Chaitin, said yesterday that the Timphonys were “very upset” over the impoundment of the car, owned by the mother and being permissibly driven on the day in question by the son. He said they were without use of the automobile for four or five days and “you need a car.”
Chaitin said that Scarlet Timphony was able to regain possession of her vehicle after discussing the matter with an assistant city manager, gaining access to the car in the impoundment lot, retrieving the receipts from the glove compartment, and showing them to city officials.
“I expect to petition to have the case heard en banc,” Chaitin noted.
A request for comment emailed to Assistant Pasadena City Attorney Frank Rhemrev prompted a phone call from an unidentified woman in the office who said she could not say anything without authorization.
The case—originally filed in Los Angeles Superior Court but removed by the city to U.S. District Court—is Timphony v. City of Pasadena, 15-55144. The panel opted to decide the case without oral argument.
California Employers Can’t Consider Certain Juvenile Records
(Reprinted from the Society for Human Resource Management, October 4, 2016)
On September. 27, California Gov. Jerry Brown signed A.B. 1843, which amends the California Labor Code to prohibit employers from considering certain juvenile records for employment purposes. The amendment is effective January 1, 2017.
Subject to certain exceptions, the labor code currently makes it unlawful for a private or public sector employer to consider information concerning:
- An arrest or detention that did not result in a conviction.
- A referral to or participation in, any pretrial or post-trial diversion program.
- A conviction that has been judicially dismissed or ordered sealed.
The labor code does not, however, prohibit employers from asking an applicant or employee about an arrest for which the applicant or employee is out on bail or on recognizance pending trial.
Moreover, these provisions do not bar certain health care facilities, as defined in Section 1250 of the Health and Safety Code, from asking applicants to disclose an arrest under any section specified in Section 290 of the Penal Code (for those positions with regular access to patients) or an arrest under any section specified in Section 11590 of the Health and Safety Code (for those positions with access to drugs and medication).
A.B. 1843 amends the labor code to broaden the types of “off limits” information that employers may not consider by prohibiting employers from inquiring about and considering information concerning or related to “an arrest, detention, process, diversion, supervision, adjudication, or court disposition” that occurred while the applicant or employee was subject to the process and jurisdiction of a juvenile court (juvenile offense history).
The bill also excludes from the labor code’s definition of “conviction” an adjudication by a juvenile court or any other court order or action taken with respect to a person who is under the process and jurisdiction of a juvenile court.
Health care facilities will now be barred from inquiring into an applicant’s juvenile offense history unless the information concerns an adjudication by a juvenile court in which the applicant was found to have committed a felony or a misdemeanor offense under Section 290 of the Penal Code or Section 11590 of the Health and Safety Code in the five years before the application for employment.
However, the health care facility may not inquire about an applicant’s juvenile offense history that has been sealed by a juvenile court. If the health care facility seeks disclosure of permissible juvenile offense history, the facility must provide the applicant with a list that describes the offenses for which disclosure is sought.
California employers that use or are considering using criminal records to screen applicants or employees should consider reviewing their policies and practices to ensure that “off-limits” information is not being requested or considered.
California employers also should be mindful of pending, proposed amendments to the California Fair Employment and Housing Act, which, if adopted, will change the landscape for California employers’ background screening programs.
Moreover, all employers, including nationwide employers, may want to conduct a broader (and privileged) assessment of their pre-employment screening practices to strengthen their compliance with federal, state and local laws, including the Fair Credit Reporting Act and state and local so-called “ban the box” laws.
Transgender Protections Expanded in California with All-Gender Restroom Law
(Reprinted from the Society of Human Resource Management, October 4, 2016)
On September 29, California Gov. Jerry Brown signed S.B. 1732 which will require all single-occupancy restrooms in any business establishment, place of public accommodation, or government agency to be identified as “all gender” and be universally accessible.
The bathrooms to which this law applies are toilet facilities with no more than one water closet and one urinal and with a locking mechanism controlled by the user.
The new law, which is touted as the most inclusive restroom access law in the country, goes into effect in March 2017. Public inspectors or building officials may check for compliance during any inspection. Therefore, employers should immediately change all signage used for their single-user restrooms to ensure none are designated as male or female only.
Requiring gender-neutral bathrooms in California is consistent with the current overall trend of affording greater protections to the state’s transgender population.
California’s new law comes into effect following the Department of Fair Employment & Housing’s (DFEH’s) guidance issued in early 2016 requiring employers to allow transgender employees access to restroom and locker room facilities which correspond to their gender identity.
The DFEH’s guidance parallels an April 2015 decision of the Equal Employment Opportunity Commission under federal law and a June 2015 “Guide to Restroom Access for Transgender Workers” published by the Occupational Safety and Health Administration.
The issue of gender neutral bathrooms remains controversial. Brown authorized California’s new law just days after he passed a bill limiting state employee travel to North Carolina due to its transgender bathroom law. The controversy surrounding North Carolina’s law has resulted in the state losing up to billions of dollars in canceled conferences, sporting events and concerts.
High Visibility Safety Apparel: New ANSI/ISEA 107-2015 Standard
By Maria Galvan, Risk Manager
The 2014 edition of the California Manual on Uniform Traffic Control Devices (CAMUTCD) Chapter 6D Pedestrian and Worker Safety states:
04 All workers, including emergency responders, within the right-of-way who are exposed either to traffic (vehicles using the highway for purposes of travel) or to work vehicles and construction equipment within the temporary traffic control (TTC) zone shall wear high-visibility safety apparel (HVSA) that meets the Performance Class 2 or 3 requirements of the ANSI/ISEA 107–2004 publication entitled “American National Standard for High- Visibility Safety Apparel and Headwear” (see Section 1A.11), or equivalent revisions, and labeled as meeting the ANSI 107-2004, or equivalent revisions, standard performance for Class 2 or 3 risk exposure, except as provided in Paragraph 5. A person designated by the employer to be responsible for worker safety shall make the selection of the appropriate class of garment.
05 Emergency and incident responders and law enforcement personnel within the TTC zone may wear HVSA that meets the performance requirements of the ANSI/ISEA 207-2006 publication entitled “American National Standard for High-Visibility Public Safety Vests” (see Section 1A.11), or equivalent revisions, and labeled as ANSI 207-2006, or equivalent revisions, in lieu of ANSI/ISEA 107-2004 apparel.
06 When uniformed law enforcement personnel are used to direct traffic, to investigate crashes, or to handle lane closures, obstructed roadways, and disasters, high-visibility safety apparel as described in this Section shall be worn by the law enforcement personnel.
07 Except as provided in Paragraph 8, firefighters or other emergency responders working within the right-of-way shall wear high-visibility safety apparel as described in this Section.
08 Firefighters or other emergency responders working within the right-of-way and engaged in emergency operations that directly expose them to flame, fire, heat, and/or hazardous materials may wear retroreflective turnout gear that is specified and regulated by other organizations, such as the National Fire Protection Association.
Effective February 1, 2016, ANSI/ISEA 107-2015-American National Standard for High-Visibility Safety Apparel and Accessories is the revised and approved standard.
- The new edition of the standard consolidates the requirements of ANSI/ISEA 107-2010 and ANSI/ISEA 207, American National Standard for Public Safety Vests to establish a single, document that considers all occupational tasks.
- The standard continues to identify three performance classes of garments. They are based on the amount of visible materials and design attributes incorporated into the final configuration. The standard also identifies garment types based on expected use settings and work activities being performed. The garment categories are designated as off-road (type O), roadway and TTC (type R), or public safety activities (type P). Performance Classes within each type of HVSA are specified in terms of the minimum area of high-visibility materials to be included. Performance Classes provide a number of design options complementing the needs of the user in the expected hazard environment:
- Type O (“off-road”) provides daytime and nighttime visibility for workers in occupational environments that pose struck-by hazards from moving vehicles, equipment and machinery, but which will not include exposure to traffic or roadway TTC zones.
- Type R (“roadway”) provides daytime and nighttime visibility for workers in occupational environments that include exposure to traffic, roadway TTC zones, or from work vehicles and construction equipment within a roadway TTC zone.
- Type P (“public safety”) provide daytime and nighttime visibility for emergency and incident responders and law enforcement personnel in roadway and off-road environments. Type P HVSA provides additional options for personnel that have competing hazards or require access to special equipment.
- Performance Class 1 (Type O only) provides the minimum amount of high-visibility materials required to differentiate the wearer visually from noncomplex work environments, in scenarios in which the struck-by hazards will not be approaching at roadway speeds.
- Performance Class 2 (Type R or P) provides for the use of additional amounts of high-visibility materials, which may allow design opportunities to define the human form more effectively. Performance Class 2 HVSA have the potential to provide longer detection and identification distances, and increased conspicuity performance compared to Performance Class 1 HVSA. NOTE: Performance Class 2 HVSA is considered a minimum practice for HVSA in roadway rights-of-way and TTC zones, as required in the 2009 edition of the MUTCD.
- Performance Class 3 (Type R or P) offers greater visibility to the wearer in both complex backgrounds and through a full range of body movements by mandatory placement of background, retroreflective and combined-performance materials on sleeves and pant legs (if present). A sleeveless garment or vest alone shall not be considered Performance Class 3.
- Supplemental Class E: This apparel includes pants, bib overalls, shorts, and gaiters. Class E items are not compliant when worn alone; however, when combined with Performance Class 2 or Class 3 apparel, the overall classification satisfies Performance Class 3.
- The new edition of the standard includes provisions for Type R Performance Class 2 and Performance Class 3 garments in the smallest size offered to use a reduced amount of background material to allow for sizing that fits smaller workers.
- The new edition of the standard also defines minimum material requirements for high-visibility accessory items such as gloves, arm/leg bands, and headwear/hoods.
- New labeling requirements will identify the garment by performance class, type, and by its flame resistance characteristics as defined in the standard.
- ANSI/ISEA 107-2015 expands the examples of garment configurations to illustrate compliant and non-compliant designs.
For additional detail, a copy of the standard can be obtained from the American National Standards Institute.
In order to meet CAL/OSHA and CAMUTCD requirements, employers are responsible for ensuring that affected employees have proper ANSI/ISEA 107 compliant apparel. High visibility garments should be selected after a hazard assessment has been conducted and should take into account the expected hazards and work activities. Employers are also responsible for ensuring that employees wear their high-visibility safety apparel properly and for replacing it when worn out. Furthermore, the CAMUTCD states:
Each person whose actions affect TTC zone safety, from the upper-level management through the field workers, should receive training appropriate to the job decisions each individual is required to make. Only those individuals who are trained in proper TTC practices and have a basic understanding of the principles (established by applicable standards and guidelines, including those of this Manual) should supervise the selection, placement, and maintenance of TTC devices used for TTC zones and for incident management.
HVSA is discussed in flagging safety, traffic control for safe work zones, and trenching and excavation safety trainings offered by the California JPIA.
The United States Federal Highway Administration (FHWA) has made the following statement about the expected lifetime of high-visibility personal protective equipment garments:
The FHWA research into the service life of the high-visibility garments that are currently in use indicates that the useful service life of the vests depends greatly on the type of activities in which the workers are engaged while wearing the garments. The useful life of garments that are worn on a daily basis is approximately six months. Garments that are not worn on a daily basis are expected to have a useful service life of up to three years. The FHWA realizes that there might be some variation in the useful service life of these garments based on the care provided. [Federal Register Vol. 71, No. 226 Friday, November 24, 2006 Rules and Regulations p. 67798]. Actual lifetimes in the field will vary depending on exposure and care conditions.
If you have questions, please contact your assigned Risk Manager.
Oleoresin Capsicum (OC) Pepper Spray
By Melaina Francis, Risk Manager
Pepper spray is a safe and effective non-lethal and legal deterrent against aggressors attempting to do harm to enforcement staff. It is a proven tool, which does not cause permanent damage when used properly and ethically. Pepper spray is easy to use, affordable, and most importantly, is an extremely powerful tool when it comes to self-defense.
For members considering implementing a program, it is essential to determine which staff should be authorized, trained and proficient in the use of Oleoresin Capsicum, or Pepper Spray.
Police officers, firefighters, code and parking enforcement, camp and park rangers, and animal control officers are authorized to carry pepper spray. The purpose being to prevent an attack from an aggressive person or animal, that in addition to dogs, may include bears or mountain lions. In the case of animals, specialized sprays are also available for employees who may encounter animal attacks.
For members that authorize the use of OC Pepper Spray, it is recommended that they establish a policy covering the following elements:
- Authorized users
- Mandatory training including two-year certification for all authorized users
- OC concentration percentage (5-10%) and Scoville Heat Units (minimum two million)
- Determine type of spray delivery system: stream, fogger, cone, foam, or gel
- Effects of exposure, decontamination, and first-aid measures
- Tactics required attempting to defuse situations before pepper spraying
- Reporting and notification
- Post-incident response including debriefing and counseling
Documentation and notification of pepper spray use in the field by both police and non-police personnel authorized to carry and utilize pepper spray are vital, this may include intentional and unintentional spraying incidents, whether it be a fellow staff member, a member of the public, or an animal. Detailing what steps were taken to render medical aid and noting the time when the request for emergency services was made are crucial to mitigate potential liability.
California laws enforce that pepper spray should only be used in self-defense situations where you fear your life or safety or that of another is in danger. Illegal use of pepper spray products (perhaps dispensing them out of anger or as non-self-defense violence against another person) can bring fines of $1000 and up to three years in prison.
While there are no requirements to obtain a license or permit to purchase or carry pepper spray, it is recommended that members having an established program and policy allowing key staff to utilize OC Pepper Spray should require that these employees receive initial certification training and then recertification training every two years thereafter.
The Authority offers Pepper Spray Training to members. The comprehensive and specialized Pepper Spray Training is four hours in duration and includes discussions of the legal, medical, and ethical issues around OC Pepper Spray use as a defensive tactic. It provides practical training in the carrying, drawing, and use of OC Pepper Spray against one or more attackers.
Certification training classes were recently held at the City of Norwalk. Instructor Eduardo Montez’s high energy course held everyone’s attention while participants were engaged during the various hands-on scenarios. Participants gained an increased awareness how to carry and use OC Pepper Spray safely, ethically, and only when necessary.
Members interested in hosting the OC Pepper Spray Defense Training may contact Michelle Aguayo, Training Coordinator.
Photo: Norwalk staff get hands-on experience during pepper spray training
Protecting Employees from West Nile Virus and Zika
By Melaina Francis, Risk Manager
West Nile Virus
West Nile Virus (WNV) infection is a potentially serious illness transmitted to humans primarily by mosquitoes. WNV is known to infect birds and other animals as well as humans. While it is not known exactly how long this virus has been in the United States, the Centers for Disease Control and Prevention (CDC) has documented over 30,000 human cases of the infection in the U.S. since 1999. It is considered a seasonal epidemic that flares up in the summer and continues into the fall.
It is recommended that staff who work outdoors be extra vigilant at dusk and dawn when mosquitoes are most active. Eliminating standing water is a good way to reduce mosquito breeding. Periodically checking and removing areas where water collects is the first line of defense. Affected staff should be made aware that the use of personal protective equipment and defensive techniques are essential to preventing mosquito bites. The following steps are suggested when working at sites where mosquitoes may be biting.
- Cover as much of your skin as possible by wearing shirts with long-sleeves, long pants, and socks whenever possible (use light-weight clothing to minimize the potential for heat-induced illnesses).
- Avoid use of perfumes and colognes when working outdoors during peak times when mosquitoes may be active; mosquitoes may be more attracted to individuals wearing perfumes and colognes.
- Use insect repellent containing an EPA-registered active ingredient. All of the EPA-registered active ingredients have demonstrated repellency however some provide more long-lasting protection than others. Permethrin is another long-lasting repellent that is intended for application to clothing and gear, but not directly to skin.
- Choose a repellent that provides protection for the amount of time that you will be outdoors. In general, the more active ingredient (higher concentration) a repellent contains, the longer it will protect against mosquito bites.
- To avoid reaction to DEET or other ingredients of insect repellents, read and follow the directions on all insect repellent before use. Spray insect repellent on the outside of your clothing, as it is possible for mosquitoes to bite through thin clothing.
- Do not spray insect repellent on skin that is under clothing. Do not apply insect repellent to skin that is already irritated, or to cuts/lacerations.
- Do not spray aerosol or pump products in enclosed areas. Do not spray a pump or aerosol product directly on your face. First, spray on hands and carefully rub on the face (do not allow insect repellent to contact your eyes and mouth).
- After returning indoors, use soap and water to wash skin that has been treated with insect repellent.
Workers should protect themselves from skin contact with dead birds. The CDC recommends using gloves or an inverted plastic bag when handling dead birds. For agencies that typically come into contact with dead animals, the Zoonotic ATD Standard Title 8, Chapter 4, Subchapter 7, Article 109, Section 5199.1, may be applicable should staff be exposed. Excerpt: ‘These regulations require compliance by services that capture, sample, transport or dispose of birds and other wildlife.’
It is recommended that agencies provide the West Nile Virus fact sheet to staff as well as posting the information on employee bulletin boards.
For more information on verified cases of WNV in California by county, please visit the following link. http://www.westnile.ca.gov/
The Zika virus is transmitted by Aedes aegypti mosquitoes (also known as yellow fever mosquitoes) and Aedes albopictus mosquitoes (also known as Asian tiger mosquitoes). These mosquitoes are not native to California; however, since 2011 they have been detected in several California counties. The California Department of Public Health provides updated information on the number of contracted cases of Zika in California.
An Aedes mosquito can only transmit Zika virus after it bites a person who carries the virus in their blood. Thus far in California, Zika virus infections have been documented only in people who were infected while traveling outside the United States or through sexual contact with an infected traveler. To date, there has been no local mosquito-borne transmission of Zika virus in California.
Zika virus is not spread through casual contact, however, Zika can be spread by infected persons to their sexual partners. Zika can cause birth defects in babies born to women who were infected with Zika virus during pregnancy. Additionally, there is an association between Zika and Guillain-Barré Syndrome (GBS), a disease affecting the nervous system.
Awareness and education are key to reducing the potential for mosquito bites in the workplace and to prevent the transmission of West Nile Virus or other infectious diseases.
If you have questions regarding West Nile Virus or Zika, please contact your regional Risk Manager.
by Jim Thyden, Insured Programs Manager
Recent terrorist events have caused tragic losses to people and organizations. It is incumbent on public agencies to evaluate their risk management, training, and coverage that is provided. Member agencies have access to a number of programs that can assist in your organization’s readiness and ability to manage and recover from catastrophic events.
Members may contact their assigned Risk Manager to discuss any risk management issues, including how to prepare for a terrorist event. In addition, the Authority provides policy template resources for an Emergency Action Plan and Workplace Violence.
Training is crucial when events such as these occur. The Authority’s training program includes e-learning courses that provide some guidance for members.
- Emergency Planning
- Emergency Preparedness and Response
- Active Shooter
- Workplace Violence
In the event of an incident, the Authority will cover losses due to terrorism that are not otherwise excluded in the Memorandum of Coverage for each the programs for primary liability, excess liability, workers’ compensation, and property.
Primary Liability and Excess Liability
The Authority covers up to $50,000,000 per member in the Primary Liability Program and up to $40,000,000 per member in the Excess Liability Program for a single occurrence with no exclusions for events defined as terrorism. There is an annual aggregate limit for reinsurance, meaning the Authority pools losses above $18,000,000 in any single coverage year. There is full coverage and no annual aggregate limit for the excess coverage from $20,000,000 to the full limits of each program.
Coverage is provided up to the statutory limits required by California law with no exclusion for terrorist events.
Subject to the terms and conditions of our Memorandum of Coverage, there is $100,000,000 of coverage per occurrence and in the annual aggregate for damage to member property arising from a terrorist act that occurs during the coverage period.
For information about terrorism coverage, contact Jim Thyden, Insurance Programs Manager.
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