Issue 66-August 2017
Educational Forum – Risk Management: Facing the Future Together
The Authority has always considered its business partners to be of strategic importance. They understand the need for relevance, change, succession, and stability. They also draw lessons from the past to work jointly with the Authority in helping members manage risk. And noteworthy at this particular time, they underwrite a significant part of the annual forum.
Once again for this year, these partnerships will allow us to continue to deliver an exceptional educational experience for members from up and down the state.
Coupled with the Executive Committee’s ongoing support of waiving registration fees for members, these sponsorships make a difference for those who would not otherwise be able to attend.
We deeply appreciate the role our strategic partners play in supporting these educational opportunities to members.
Alliant Insurance Services Inc.
Brit Global Specialty USA
Burke, Williams & Sorensen, LLP
Carl Warren & Company
Grossberg & Hoehn
Markel Global Reinsurance
York Risk Services Group, Inc.
AmWINS Insurance Brokerage of California, LLC
JLT Re Inc.
Kessel & Associates
Kutak Rock LLP
El Capitan Level
Berkley Public Entity Managers
CrossMark Risk Solutions
Daley & Heft, LLP
Declues, Burkett & Thompson, APC
Law Offices of Scott C. Haith, APLC
Poms & Associated Risk Services
Siegel, Moreno & Stettler, APC
Wells Fargo Insurance Services
Wesierski & Zurek, LLP
Arthur J. Gallagher & Co.
Great American Insurance Company
Hayford & Felchlin, LLP
McCormick, Mitchell & Rasmussen APC
Norman Peterson & Associates
PFM Asset Management LLC
Risk Placement Services, Insurance Brokers
Robert Robin & Associates
Collins Collins Muir + Stewart, LLP
Law Offices of Barber & Bauermeister
Law Offices of S. Henslee Smith
Dr. Steve Albrecht, PHR, CPP
What Cities Should Know About Public Records in Private Accounts
(Reprinted from Western City Magazine, August 2017)
Local agencies throughout the state have wrestled with the decision in City of San Jose v. Superior Court since the California Supreme Court issued its opinion earlier this year.i The court found that records on local agency employees’ personal accounts and devices may be subject to the California Public Records Act (CPRA) if the records pertain to public business. In the opinion’s aftermath, many local agencies have received requests for records in public employees’ and officials’ personal email, text messaging and social media accounts.
This column answers commonly asked questions about the practical effects of the San Jose case on local agency practices under the CPRA. These answers offer guidance only and should not be substituted for advice from a public agency attorney.
Does San Jose apply to public officials or just public employees?
Most likely, San Jose applies to public officials in addition to public employees. The court held that “when a city employee uses a personal account to communicate about the conduct of public business, the writings may be subject to disclosure under the California Public Records Act.”ii Some have questioned whether the ruling applies to public officials because the ruling calls out only city employees. However, there’s a good reason why San Jose likely applies to public officials, too: The CPRA request at issue targeted, among other things, text messages on council members’ personal phones. Certainly the court was aware of the underlying facts of the case.
Moreover, the opinion is peppered with references to public officials. For example, in supporting its ruling, the court opined, “there is no indication the Legislature meant to allow public officials to shield communications about official business simply by directing them through personal accounts.” The justices also opined, “We are aware of no California law requiring that public officials or employees use only government accounts to conduct public business. If communications sent through personal accounts were categorically excluded from the CPRA, government officials could hide their most sensitive, and potentially damning, discussions in such accounts.” [Emphasis added.] As such, it would be risky for a local agency to assume that public officials are not subject to the San Jose ruling.
What is the process of obtaining potential public records from public officials’ and public employees’ personal accounts?
San Jose includes a section titled “Guidance for Conducting Searches.” In this portion of the opinion, the court emphasized that employees and officials do not lose all of their privacy rights simply because they work for a public agency. The court explained that in responding to a CPRA request for public records in personal accounts, a local agency does not need to seize computers and obtain individuals’ user names and passwords to search for public records in personal accounts and devices. Rather, local agencies are obligated to conduct searches that are “reasonably calculated” to locate responsive records and disclose records that the agencies can find with “reasonable effort.”
Like any other CPRA request, upon receiving a request for public records on individuals’ personal accounts and devices, the local agency’s custodian of records should reach out to the employees and officials who are the subject of the request. San Jose suggests that employees and officials may then search their own personal files, accounts and devices for responsive material.
Does San Jose really apply the CPRA to text messages?
In the wake of San Jose, some have expressed dismay that text messages on public employees’ and officials’ personal phones could be public records under the CPRA. This is understandable, as text messaging is a newer form of electronic communication. However, as mentioned earlier, the request at issue in San Jose targeted “emails and text messages ‘sent or received on private electronic devices used by’ the mayor, two city council members and their staffs.” Thus, text messages in an employee’s or official’s personal account or device may be subject to the CPRA if those text messages pertain to public business.
Does San Jose really apply the CPRA to social media accounts?
San Jose does not explicitly mention social media accounts like Facebook or Twitter. However, the court acknowledged that records on “other electronic platforms” could also be subject to the CPRA. For example, if a city employee or council member emails a constituent from his or her personal account about a civic center groundbreaking, for practical purposes that same correspondence should also be a public record even if the discussion occurred in a private Facebook message. In San Jose, the court looked past where the message resided and which electronic medium was used. Rather, if a record meets the following “factors,” it is probably a public record subject to the CPRA.
What “factors” should a local agency consider when deciding whether a record is public or personal?
The court provided local agencies with the following “factors” to consider when determining whether a document is a public document or a personal one.
Content. Does the content of the email relate in a substantive way to the conduct of the agency’s business? In San Jose, the court stated, “Whether a writing is sufficiently related to the public business will not always be clear. For example, depending on the context, an email to a spouse complaining ‘my co-worker is an idiot’ would likely not be a public record. Conversely, an email to a superior reporting the co-worker’s mismanagement of an agency project might well be.”
Context/Purpose. Why was the email written? Was it written to conduct the local agency’s business or further the local agency’s interest?
Audience. To whom was the email sent? Was it sent to an agency employee, official, resident, consultant, agency stakeholder, etc.? Or was the email sent to a friend or family member?
Scope. Was the email written in the individual’s capacity as an agency official or as an employee representing the agency? Or was the email written as a private individual?
Each record must be reviewed on a case-by-case basis to determine whether it is a public or personal record.
How long should public employees and officials retain public records in their personal accounts and devices?
Although the CPRA is not a record retention statute, local agency public records generally must be retained in accordance with Government Code Section 34090, which requires certain public recordsiii to be kept for at least two years.iv The retention statutes do not provide a specific retention period for emails, texts or other forms of social media.
Now that we know public records may reside in personal accounts and devices, however, public employees and officials should be aware of their respective agencies’ records retention policies. If a public employee or official is concerned with following retention schedules for messages in personal accounts and devices, the easiest solution is not to use personal accounts and devices for public business. If that’s not possible, then public employees or officials could make a habit of forwarding public records from a personal account and device to the local agency’s server. Another solution is to courtesy copy (cc) a local agency account on the public message so that the message reaches the local agency’s server. After taking one or both of those actions (forwarding or copying the messages) the messages in the personal account and devices may be deleted. The CPRA does not require an agency to keep duplicate copies of a record.
If a local agency chooses to use an affidavit like the one the court referenced in San Jose, what should the affidavit contain?
In San Jose, the court suggested that if a public employee or official withholds documents from his or her personal account and devices, then the individual may “submit an affidavit with facts sufficient to show the information is not a ‘public record’ under the CPRA.” This practice is modeled after the federal Freedom of Information Act and a practice used in the State of Washington.
There is no consensus, however, on whether local agencies should follow this practice or how to implement it. The CPRA and San Jose do not require this practice. However, if a local agency decides to use an affidavit to demonstrate that it has asked employees and officials to search their personal accounts and devices, the affidavit could include the following: a description of the CPRA request, language stating that the employee or official searched his or her personal accounts and devices, and what action he or she is taking (for example, disclosing records, not disclosing records — including a description of why — or disclosing some and withholding some). The affidavit could then be filed away and produced if needed to defend the local agency in litigation or it could be provided to the requestor.
How should a local agency deal with public records in former public employees’ and officials’ personal accounts and devices?
In San Jose, the court noted that “an agency’s public records ‘do not lose their agency character just because the official who possesses them takes them out the door.’” This appears to be true of former public employees and officials as well. In other words, just because a former public employee or official has left with public files or has them filed in his or her personal inbox does not mean that the records lose their public character.
One way local agencies may deal with this issue is to ask a former employee or official to search his or her personal accounts and devices for public records that may have been generated when he or she was employed or in office. Of course, any record that the former employee or official generated after he or she left office would not be subject to the CPRA. Regardless of how the local agency decides to deal with the issue, the agency should be prepared to demonstrate (either to the requestor or a court or both) that it complied with San Jose and reasonably conducted its search by communicating the CPRA request to former officials and employees, as necessary.
How have other states, such as Washington, dealt with similar laws and case law providing that records on a public official’s or employee’s private devices or accounts may be subject to public disclosure?
Other states, like Washington, have had more time to digest the idea of public records residing in personal accounts and devices. In San Jose, the court relied on a case decided by the Washington Supreme Court: Nissen v. Pierce County.v In Nissen, the court held that an elected county prosecutor’s text messages regarding work-related matters sent and received from his private cell phone could be public records. Following Nissen, additional case law is beginning to emerge, giving us a glimpse of what may eventually transpire in California.
For example, in 2016, a Washington appeals court found that under Nissen, a trial court could require an elected city council member to produce emails stored in his personal email account that were deemed city records. The trial court was also allowed to require the council member to submit an affidavit attesting to the adequacy of his search in his personal account.vi The council member had refused to provide records in his personal accounts, arguing (among other things) that he had a constitutional privacy right to personal records. Moreover, the city and council member argued that Nissen applied only to elected executive officers, not elected legislative officials. The Washington appellate court rejected those arguments.
Are public officials’ campaign-related records in their private accounts and devices subject to disclosure under the CPRA?
No. Campaign-related records in personal accounts and devices are not subject to the CPRA. State law prohibits individuals from using public resources for political purposes. Public officials may lawfully use only their personal or campaign accounts and devices for campaign purposes; such proper use of personal accounts and devices would not expose those political messages to public scrutiny under the CPRA.
Registered Sex Offenders’ Residency Restrictions Deemed Unconstitutional
By Paul Zeglovitch, Liability Program Manager
Many cities throughout California have adopted very restrictive ordinances as to where sex offenders can live, generally within 2000 feet of schools, parks and playgrounds. This was largely done as a result of Proposition 83, that passed with an overwhelming 70% vote. But, following a 2015 California Supreme Court ruling deeming the restrictions under Proposition 83 unconstitutional, cities are now being forced to reevaluate. That suit was brought by four parolees who were about to be arrested for violating residency restrictions at different locations throughout the state. The parolees argued that the restriction was improper, as their crimes had not been committed against children. In addition, it was alleged that the ordinances are overly punitive, preventing them from finding affordable housing and, in some cases, causing homelessness. Increases in homelessness actual makes it harder for authorities to track the offenders. Critics also argue that 90% of sex crimes involving minors are committed by a friend of family member and are not random abductions and therefore the restriction does nothing to address the real issue.
Since the 2015 ruling, many cities have not rescinded their residency restrictions. Groups such as the Alliance for Constitutional Sex Offense Laws are therefore filing lawsuits, citing the Supreme Court ruling. These suits can be both costly and difficult to defend. This has caused cities like El Monte, Seal Beach, Tustin, Fullerton and many others, to begrudgingly repeal residency restrictions for sex offenders. Naturally, residents and councils alike are uneasy about the decision, but see no other options.
In addition, the Department of Corrections (DOC) announced that it will no longer be enforcing blanket residency laws for sex offenders on parole. The DOC has reported that residency restrictions set forth by Proposition 83 actually increase homelessness, and also make it difficult for sex offenders to access counseling and other social services. In San Diego County, 34% of registered sex offenders reported being homeless or transient. Further, the restrictions have not been shown to actually reduce crime. According to the Alliance for Constitutional Sex Offense Laws, at least 50 California cities still have residency restrictions for sex offenders on the books and it seems to be a case of when, not if, these will be challenged via litigation.
So, has the state and its cities lost any ability to control the residency of sex offenders? Fortunately, the answer is no, as the the court has made it clear individual residency restrictions can be levied by judges against certain offinders on a case by case basis.
If your agency has such an ordinance, the Authority suggests taking steps to repeal. Members may contact Paul Zeglovitch, Liability Program Manager for more information, and to discuss obtaining a legal opinion from one of the Authority’s defense counsel.
By Ryan Thomas, Training and Loss Control Specialist
The Authority is in the process of developing “Short Takes”, which are videos that cover a wide array of topics of benefit to our Members. These 5 to 10 minute videos will be released regularly, and augment our e-learning training library and Authority Live! events by covering topics in a quick-hitting, yet informative way. Topics include: completion of workers’ compensation forms, quick overview of run-hide-fight, declination of medical treatment form for workplace injuries/illness, the importance of facility inspections/what to look for and certificate of insurance and endorsement review tips. Topics will vary greatly and over time, and be beneficial to your agency as tailgate videos and as supplemental training content.
This videos will be released in three formats. JPIA Café, will be an interview style format, in which topics will be presented in a conversational style. Also, look for InfoRM, which will be the format for announcements and news magazine content. Lastly, Take5 will be the name for Authority created e-learning training content.
These videos are currently under development and will be available in the next few months on myJPIA.
For further information regarding Short Takes, or to provide ideas for potential topics, please contact Training and Loss Control Specialist, Ryan Thomas.
Criminal Background Check Policy Template Revised
By Abraham Han, Administrative Analyst
The Authority has recently revised the Criminal Background Check policy template. The revisions address recent changes in regulations that California’s Department of Fair employment and Housing (DFEH) made regarding employers’ use of employees’ and applicants’ criminal history in employment decisions.
This template serves as a model policy to assist members with conducting background checks consistent with state and federal law. The policy template is available in the “Policy Templates” section of the Authority’s Resources and Documents library on cjpia.org.
The template includes a user guide to provide members with sufficient context and a better understanding key terms and concepts as they relate to criminal background checks.
If your agency is using a previous revision of the policy provided by the Authority, please check to ensure the implementation and use of the newest revision.
For questions regarding the Criminal Background Check policy template, please contact your assigned Risk Manager.
City of Santa Fe Springs – A Milestone Day for a Milestone Celebration!
The City of Santa Fe Springs celebrated its 60th Anniversary on May 6th with a day of community celebrations and festivities. Santa Fe Springs is one of the Gateway Cities of southeast Los Angeles County and was incorporated on May 15, 1957.
Gloomy weather didn’t dampen the festive spirit of this community, as residents, business residents, and city employees gathered to celebrate this historic day for Santa Fe Springs. A 5K Run/Walk kicked off the day of festivities with close to 1,200 people who showed up to participate. Community members came out to enjoy the Anniversary Parade with approximately 60 entrants. Grand Marshal Major General Kevin Kuklok led the parade, with participation from the Santa Fe High School Band and Pepsters, the Wells Fargo stagecoach, the Santa Fe Springs Chamber of Commerce, and the Rancho la Laguna Charros and Ballet Folklorico.
To wrap up the celebration, community members gathered at Town Center Plaza for the Birthday Bash.
It was a milestone day for a milestone anniversary!
California Employers Face New Notice Requirement for Domestic Violence, Sexual Assault, and Stalking Time Off
The California Division of Labor Standards Enforcement (DLSE) has published a new form that must be added to the growing list of documents employers are required to provide to employees at the time of hire.
The new form refers to employees’ rights under California Labor Code Section 230.1, Assembly Bill (AB) 2337 relating to protections for employees who are victims of domestic violence, sexual assault, and/or stalking. The amended law requires employers with 25 or more employees to provide an employee with written notice of his or her rights to take time off for the following purposes:
- To seek medical attention for injuries caused by domestic violence, sexual assault, or stalking.
- To obtain services from a domestic violence shelter, program, or rape crisis center as a result of domestic violence, sexual assault, or stalking.
- To obtain psychological counseling related to an experience of domestic violence, sexual assault, or stalking.
- To participate in safety planning and take other actions to increase safety from future domestic violence, sexual assault, or stalking, including temporary or permanent relocation.”
The law requires employers to provide the notice “to new employees upon hire and to other employees upon request.”
Employers were not required to distribute this information until the California Labor Commissioner published a form employers could use to comply with the law. The law gave the Labor Commissioner until “on or before July 1, 2017” to develop and post the form.
As required by AB 2337, the Labor Commissioner’s office recently released the notice. The DLSE has made both an English and Spanish version of the notice available on its website. The notice also contains information on employees’ rights to reasonable accommodation and to be free from retaliation and discrimination.
Employers may use an alternative that is “substantially similar in content and clarity to the form developed by the Labor Commissioner.”
By Abraham Han, Administrative Analyst
In an effort to provide members with information and updates on proposed bills that may have an impact on liability or workers’ compensation matters, the Authority is providing this legislative update.
Below are some key proposed bills (and recommended positions) for review.
AB 383 (Chau). Civil actions; discovery status conference.
Summary: This bill encourages discovery conferences that are a cost-effective and efficient way for the judge in the case to get a quick look at the controversy and try to resolve disputes without the hundreds or thousands of pages of notices, motions, points and authorities and separate statements, exhibits, oppositions and replies generally required for a motion to compel.
AB 570 (Gonzalez Fletcher). Workers’ compensation: permanent disability apportionment.
Summary: This bill would undermine the workers’ compensation system use of apportionment and would unnecessarily open the way to claims of discriminatory apportionment, effectively wiping out many of the legitimate medical factors on which apportionment to causation is based.
AB 748 (Ting). Peace officers: video and audio recordings: disclosure.
Summary: The California Public Records Act requires that public records be available to the public for inspection and made promptly available to any person. Current law makes records of investigations conducted by any state or local police agency exempt from these requirements. This bill would require that an agency release any video or audio recording promptly unless there is an articulable factual basis why disclosure would substantially impede an active investigation. Furthermore, this bill specifies that an agency may not withhold recordings under this section for a period of time exceeding 90 days. The bill’s text, as currently written, undermines a local agency’s authority in determining the balance between the public interest of withholding and the public interest of disclosure.
AB 976 (Berman). Electronic filing and service.
Summary: This bill would authorize all trial courts in the State of California to require the electronic filing and service of documents in civil actions, as specified, in accordance with certain requirements. This bill has the potential to make litigation more cost-effective and efficient for both litigants and for the courts.
AB 984 (Calderon). Courts: frivolous actions or tactics.
Summary: Current law, until January 1, 2018, authorizes a trial court to order a party, the party’s attorney, or both, to pay the reasonable expenses, including attorney’s fees, incurred by another party as a result of bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay. Current law requires a party filing a motion pursuant to those provisions to promptly transmit specified information to the California Research Bureau of the California State Library. This bill would extend indefinitely the authorization of the trial court to order the payment of those reasonable expenses, but would not extend, and instead delete, the requirements on the filing party and the bureau relating to transmitting and maintaining the specified information, respectively.
SB 63 (Jackson). Unlawful employment practice: parental leave.
Summary: This bill would prohibit an employer from refusing to allow an employee with more than 12 months of service with the employer, who has at least 1,250 hours of service with the employer during the previous 12-month period, and who works at a worksite in which the employer employs at least 20 employees within 75 miles, to take up to 12 weeks of parental leave to bond with a new child within one year of the child’s birth, adoption, or foster care placement. The bill would also prohibit an employer from refusing to maintain and pay for coverage under a group health plan for an employee who takes this leave. This bill would potentially expose smaller agencies to costly litigation and hardships due to a smaller workforce.
SB 617 (Bradford). Workers’ compensation: providers.
Summary: This bill would create a study of alternatives to the current workers’ compensation fee-for-service structure and would require the Division of Workers’ Compensation (DWC) to create physician outreach reports in an effort to reduce medical disputes and system fraud.
SB 632 (Monning). Civil discovery: depositions.
Summary: This bill would require that, in any civil action for injury or illness that results in mesothelioma, a deposition examination of the witness by counsel other than the witness’ counsel of record be limited to seven hours of total testimony if a licensed physician attests in a declaration that the deponent suffers from mesothelioma and is either (1) over 70 years of age and his or her health is such that a deposition of more than seven hours will prejudice the deponent’s well-being, or (2) without regard to age of the deponent, the deponent’s mesothelioma raises substantial medical doubt of the survival of the deponent beyond six months. Under this bill, the above stipulations would be in place regardless of the complexity of a case.
SB 772 (Leyva). Occupational safety and health: regulations.
Summary: Current law exempts a standard or amendment to any standard adopted by the Occupational Safety and Health Standards Board that is substantially the same as a federal standard from specified provisions of the existing Administrative Procedure Act, including a requirement that a state agency proposing to adopt, amend, or repeal a major regulation, as defined, on or after November 1, 2013, prepare a standardized regulatory impact analysis in the manner prescribed by the Department of Finance. This bill would seek to eliminate regulatory impact analysis, including a cost/benefit analysis, when creating new occupational safety and health standards and regulations.
The Authority will continue to monitor these bills and others as the legislative session continues.
If you have any questions, please contact Abraham Han, Administrative Analyst.
The Court Report
Orange Superior Court Appellate Division Declares:
Basic Speed Law Can Apply to Driving Unsafely
Police Officer Cited Woman Whose Hands Weren’t on Wheel, Concluding That Driving at Any Speed Over 0 m.p.h. Was Unsafe
(Reprinted from the Metropolitan News Enterprise, July 26, 2017)
A woman who was driving five miles per hour under the speed limit, but was holding a cigarette out the left window and holding a cellphone in her right hand, looking at the screen, was properly cited for violating the Basic Speed Law based on the officer’s observation that the only safe speed, under the circumstances, was 0 m.p.h., the Orange Superior Court’s Appellate Div. has held.
Its June 1 ruling was made public yesterday after the Fourth District Court of Appeal determined that transfer to itself was unnecessary.
In a case of first impression, the Appellate Division decided that the Basic Speed Law—Vehicle Code §22350—is not restricted to a question of whether the speed is safe under road and weather conditions, but includes the matter of the driver’s conduct while driving.
The statute provides:
“No person shall drive a vehicle upon a highway at a speed greater than is reasonable or prudent having due regard for weather, visibility, the traffic on, and the surface and width of, the highway, and in no event at a speed which endangers the safety of persons or property.”
Writing for the appeals panel, Judge David A. Hoffer zeroed in on the second portion of the statute, pertaining to speed “which endangers the safety of persons and property,” and observed:
“By its terms, this portion of the statute prohibits excessive speed in general without any limitation. This portion of the statute places the focus not on a set of express factors, but on ‘the safety of persons and property.’
“Limiting the factors the police and courts could consider to factors external to the driver’s behavior, as the defense would have us do, would write the second portion of the statute out of the Basic Speed Law and write in a limitation which the Legislature did not see fit to include. The first portion of the statute prohibits driving over the speed appropriate for external conditions, and the second portion of the statute prohibits driving at any excessive speed. Read together, both portions of the statute have effect and protect the public from any sort of dangerous speed.”
Irvine Police Officer Cody Bates testified that motorist Tamara Sue Farleigh’s manner of driving—which included approaching an intersection with no hands on the wheel—rendered movement of the vehicle unsafe.
“Because the Basic Speed Law is not limited to regulating speed with reference to conditions external to the driver herself,” Hoffer said, “this evidence is sufficient to support a conviction….”
The case is People v. Farleigh, 30-2016-00843760.
Farleigh’s appellate counsel, Huntington Beach attorney R. Allen Baylis, commented:
“We will be requesting that the Supreme Court order that the case not be published. It essentially interprets Vehicle Code 22350 in such a way that it becomes unconstitutionally vague, among other things.”
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