Issue 58-December 2016
Year End Message
By Jonathan Shull, Chief Executive Officer
The Authority’s foundation is its members. Members take an active role in determining the programs and services that are provided by the Authority. To that end, as 2016 comes to a close, I would like to take a moment to share and reflect upon the tremendous year that we have had and take a step back and ask “what did we achieve?”
The Authority was awarded the prestigious Accreditation with Excellence by the California Association of Joint Powers Authorities (CAJPA). CAJPA is a statewide association of risk-pooling Joint Powers Authorities (JPAs) to meet the need for communication and cooperation among 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.
Additionally, the Authority was awarded the Association of Governmental Risk Pools’ (AGRiP) Advisory Standards Recognition. AGRiP is the recognized authority for public entity risk pooling in North America, and beyond. The AGRiP Recognition Program, crafted on the collective experience and expertise of the first 30 years of pooling leaders, is built on self-evaluation by the pool of its compliance with the AGRiP Advisory Standards for Public Entity Risk and Employee Benefits Pools.
The Authority welcomed its newest member, the City of Azusa, in July. 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. With the addition of Azusa, the Authority’s membership is now composed of 92 cities, 18 joint powers authorities, and six special districts, that are located in 15 counties throughout the state of California.
Designed for cities with payrolls between $10 million and $60 million, the Excess Liability Program offers member self-insured retention options, an optimized memorandum of coverage, and other innovative program design features. The program is designed to retain existing members while attracting good prospective members that will make the Authority even stronger. As of July 1, 2016, the cities of Azusa, Commerce, and San Luis Obispo have joined the Excess Liability Program.
The Authority has carried out surveys of member satisfaction every three years, beginning in 2004. During the months of May and June, the California JPIA conducted its fifth triennial member satisfaction survey. The member satisfaction survey continues to be an important measurement of the Authority’s performance in key areas of service to its members. The survey provides staff and the Executive Committee with a statistically reliable understanding of the members’ satisfaction, priorities, and concerns as they relate to programs and services provided by the Authority. Results of the 2016 survey show that 94% of the survey respondents indicate the Authority is doing an excellent or good job in providing programs and services to the members.
In order to reach new members and better connect with current members, the Authority has an active presence on social media. Members can find information on various topics on the social media channels including LinkedIn, Twitter, and Facebook. I encourage you to Connect with us, Tweet us, and Like us!
The Authority’s training division has revised the course development process with the primary objective to create a process that results in innovative, industry leading, exceptional training. The California JPIA Course Development Model was developed to redesign current and future courses in order to achieve quality, standardization, measurability, alignment, and interactivity. The California JPIA Course Development Model is a team effort involving multiple individuals and entities that actively participate in course development that include members, curriculum development teams, subject matter experts, instructors, and Authority staff.
A streamlined electronic training check-in process has recently been implemented that has improved the training administration experience for members. Employees attending trainings are able to scan Authority-issued ID cards, or enter their ID number into a scanner kiosk that is set up for each training session. This process has eliminated the need for paper sign-in sheets, and less paper processing and follow-up by member agency training registrars. The onsite check-in allows employees to automatically receive training completion certificates by e-mail within one hour of the completion of training.
The Authority introduced “Authority Live!” last year to present current topics involving risk management to member agencies in a different and interesting way. Informative discussion is at the heart of the Authority Live! Authority Live! returned this summer with a program about body worn cameras including an overview of the benefits and challenges associated with instituting a law enforcement body camera program. The next Authority Live! is January 24, 2017 with a program about Proposition 64, Adult Use of Marijuana Act and its impact on member agencies including the development and enforcement of ordinances covering the regulation of marijuana businesses, private cultivation, personal use, and marijuana deliveries.
Quarterly Risk Managers Roundtables were presented on various topics related to risk management. These roundtables are opportunities for member risk managers to hear on timely and relevant topics, and also provide for open roundtable discussion and dialogue on emergent member issues. The Roundtable discussions included: Working With the Media, Developing a Safety Culture, Property Insurance, and Cyber Liability Discussions.
The 8th Annual Workers’ Compensation Defense Attorney Symposium was held in August at the Authority campus in La Palma. The day provided an opportunity for members to meet with the Authority’s panel attorneys, the York claims team, and learn about a variety of topics. The Liability Defense Attorney Summit was also held in August. The Summit provided an opportunity for the Authority’s defense counsel to gather and discuss emerging case law, litigation strategies, and liability claims trends.
The 21st Annual Risk Management Educational Forum, Weathering the Storm, was held in Indian Wells in October. Once again, it was the Authority’s marquee training event for members. With an inspirational keynote presentation by Lt. General Russel L. Honoré, and the Authority’s panel of subject matter experts presenting the most relevant topics facing public entities today, the event reached record attendance in the desert with over 300 participants.
Accounting Specialist, Habib Ali joined the Authority staff in October. Habib provides administrative, analytical, and technical support to the finance division. Maria Daniels is the Authority’s newest Office Assistant in the training division. Maria joined the Authority staff in November and assists with the logistics and closing out of training offerings.
Thank you for your continued support of the California JPIA. We wish you a very happy holiday season and New Year.
Member Satisfaction Survey
During the months of May and June, the California JPIA conducted its fifth triennial member satisfaction survey. In the end, 379 individuals responded, which represents a completion rate of 30%.
As in years past, the California JPIA selected True North Research to design the research plan and conduct the study. Broadly defined, the study’s purpose was to:
- Measure overall satisfaction with the Authority’s performance in meeting member needs
- Measure overall awareness of existing programs and services
- Identify the perceived importance and satisfaction of specific programs and services
- Evaluate current communication methods and efforts
- Profile member perceptions of the California JPIA as an organization
- Track the findings of the 2013, 2010, 2007 and 2004 studies, where appropriate
Approximately nine in ten members (94%) surveyed in 2016 indicated that the California JPIA does an excellent (57%) or good (37%) job in providing programs and services to its members. Approximately 3% of members indicated that the Authority’s performance is fair in this respect, whereas less than 1% rated the Authority’s performance as poor or very poor, and 2% were unsure.
Members’ familiarity with the various programs and services offered by the California JPIA varied substantially by service and program. Overall, respondents were most familiar with training offered by the Authority such as classroom style, online, webcasts, academies, and the annual educational forum (90% very or somewhat familiar), followed by Liability Protection Program (81%), Workers’ Compensation Protection Program (79%), and risk management such as LossCAP, employment intervention, help desk, and contract review (78%). At the other extreme, respondents were much less familiar with the Continuity of Operations Program (30% very or somewhat familiar) and Cyber Liability Insurance (35%) offered by the Authority.
Members clearly differentiate between the various programs and services offered by the Authority in terms of the perceived importance to their organizations. Overall, members rated the Workers’ Compensation Program as the most important program offered (96% extremely or very important), followed by the Liability Protection Program (96%), training programs (92%), Property Insurance (92%), and risk management programs such as LossCAP, employment intervention, help desk and contract review (91%). The services and programs rated as least important among those tested were Pollution Legal Liability Insurance (58%) and Continuity of Operations Program (61%).
Among respondents who expressed an opinion, nearly all indicated that they were satisfied with the California JPIA’s performance in providing every program or service tested. The percentage who indicated that they were satisfied ranged from a low of 94% for the Regional Risk Manager Service Model to a high of 99% for Crime Insurance and risk management services.
To view a presentation report on the survey findings, please click here.
Loss Control Action Plan (LossCAP)
By Alex Mellor, Risk Manager
While the Authority offers a number of self-insurance and insurance programs that provide important protection for members, we are, first and foremost, a risk management organization. As such, the Authority focuses on assisting members with reducing the frequency and severity of claims by proactively addressing loss exposures.
Every Authority member participates in the Loss Control Action Plan (LossCAP) program. LossCAP is the Authority’s strategic approach to working with members to manage risk, and is built around the idea that the Authority be jointly involved in member operations in order to effect better risk management. Elements of the LossCAP program include risk management evaluations, loss analysis, contractual risk transfer analysis, employment practices intervention, and governing body and staff training. Each member’s participation in the LossCAP program is overseen by one of five regional Risk Managers, who are responsible for providing members with risk management guidance and access to the various resources available to member agencies.
LossCAP also supports the Authority’s Healthy Member Protocol which is essential to strong governance and sound risk management decisions. The Healthy Member Protocol sets forth the members’ responsibilities to ensure governance is consistent with the values of the Authority when it comes to the management of risk.
In order to provide relevant and timely feedback to members regarding ongoing risk management efforts, each agency receives a risk management evaluation (RME) approximately once every three years. Each RME is performed by an Authority Risk Manager, or a consultant from the Authority’s business partner, Poms and Associates. RMEs include inspections of member facilities, discussions with key staff, and review of policies, programs, contracts, and procedures. Following the RME, the member receives a report outlining accomplishments and findings, as well as an updated LossCAP action plan identifying liability, workers’ compensation, and property loss expsoures. This action plan forms the basis for joint efforts by the member and Authority to reduce the frequency and severity of claims, and thus the member’s overall cost of risk.
Since RMEs occur only once every three years, it is important to understand that the report is only a snapshot of each agency’s risk management program at a single point in time. Members are encouraged to continually improve their risk management program by working on prioritizing action items, developing a plan for completion of those items, and delegating where appropriate to the staff person best positioned to complete each item. It is not necessary to wait until the next RME to identify and remediate loss exposures.
Since the inception of the LossCAP program, most members have received two RMEs. At this time, members will begin to be contacted regarding scheduling of the third round of RMEs. Depending upon when your agency received its last RME, you may be contacted soon regarding scheduling, or may not be contacted for some time. If you have any questions about RMEs, or the LossCAP program in general, please contact your assigned Risk Manager.
2016 Training Academy Wrap-Up/2017 Training Academy Preview
By Michelle Aguayo, Training Coordinator, and Ryan Thomas, Training and Loss Control Specialist
The Authority has long provided training to members as a way to support professional training and development and believes training plays an important role in supporting risk management and good governance of members.
The Authority’s academies are training seminars that primarily focus on a specific public sector discipline. Each is a multi-day training that presents essential theories and techniques in order to provide pragmatic solutions to solving every-day problems. Academies are designed to expand the abilities of managers, supervisors, and leaders in areas including delegating, motivating, organizing, and working under pressure. Attendees learn how to apply these skills that will enable them to meet the daily demands of their agency while exhibiting ethical standards among employees and citizens.
2016 was another excellent year for the Authority’s Academies. In all cases, the Academies were well attended and feedback was very positive.
The Executive Academy, designed for Executives and City Managers, was held January 20 – 22, 2016, at the Miramonte Resort & Spa in Indian Wells with 13 attendees. Topics included: how the California JPIA can assist in protecting your agency against claims and losses; how to handle social media; psychology of crisis management; succession planning; public relations; equipping your community with racial equity; conflict resolution; and, working effectively with councils and boards. The Executive Academy will again be offered in 2018.
Parks and Recreation Academy
The Parks and Recreation Academy, intended for all parks and recreation management-level employees, was held earlier this year, February 9 – 11, 2016, at the Shorebreak Hotel in Huntington Beach with 32 attendees from 21 member agencies. Some of the topics covered included addressing the challenges and responsibilities of managers and supervisors; providing them with knowledge, techniques and solutions; strategies for developing new programs; evaluating existing programs; writing grants; considering ADA requirements; staffing; and, providing safe environments in parks and aquatic centers.
First-time academy attendee Kerri Zessau from the City of Monrovia, enthusiastically shared, “Today’s Parks and Recreation Academy far exceeded my expectations. 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.” Kerri went on to say, “Thank you…I had no idea how much this Academy would benefit me professionally…Wow – this was amazing!”
This academy will be offered again February 7 – 9, 2017, at the Hyatt Regency Resort & Spa in Indian Wells, CA. The registration fee is $375 for members staying at the hotel with breakfast and lunch included. The fee is $175 for members not staying at the hotel. Registration is limited to 25 attendees and the deadline to register is January 11, 2017.
The Management Academy, geared for employees new to the supervisory role, is held annually in September. However, in 2016, the Management Academy was held twice due to a high demand from member agencies. 30 people from 19 member agencies attended the Academy that was held April 25 – 28, 2016, at the Westlake Village Inn in Westlake Village. 34 people from 20 agencies attended Academy that was held September 26 – 29, 2016, at the Hyatt Regency Resort & Spa in Indian Wells. Participants explored their role as a manager or supervisor and how values and ethics impact their decisions. Participants were shown a decision-making process appropriate for public-sector managers; discussed techniques to provide orientation, training and delegation; learned the four elements of effective performance appraisals; and engaged in role-play reinforcement. Using the Job-Person-Environment-Assessment (JPEA), attendees were presented with the opportunity to explore their perceptions about the behavioral requirements of their jobs, their preferred behavior patterns, and their perceptions about their work environment.
Laura Chamberlain, City of Fountain Valley, attended the April academy and shared, “Thank you for the excellent Management Academy in Westlake Village. The experience was very beneficial for both my professional and personal growth. Forrest Story was an excellent instructor and really held my attention. The real-life examples he provided made it interesting and relatable to the job of a supervisor. I especially enjoyed the interactive sessions which provided a variety of perspectives as well as networking with my peers. Also, the Job Person Environment Assessment provided by John Perry was very valuable in helping me see where I am and where I need to be to become a successful supervisor/manager. Overall, I really enjoyed the Academy, the experience, the beautiful facility, and the great food. The Academy was very helpful and I would highly recommend it to anyone looking to improve their supervisory and management skills.”
After attending the September academy, David Richards from the City of Poway really enjoyed the experience and said, “The California JPIA Management Academy struck a remarkable balance of performance management and leadership topics. The self-assessment provided amazing insights into my personal motivators, leadership and decision-making styles that will serve me well for years to come.”
This academy will be offered again September 25 – 28, 2017, at the La Bellasera Hotel in Paso Robles. The registration fee is $375 for members staying at the hotel, with breakfast and lunch included. The fee is $175 for members preferring not to stay at the hotel. Registration is limited to 25 attendees and the deadline to register is August 28, 2017.
Public Works Academy
The Public Works Academy, intended for all Public Works management-level employees, was held at the Shorebreak Hotel in Huntington Beach, June 7 – 9, 2016, with 37 attendees from 25 different member agencies. The topics covered in the Academy included: Risk Management for Public Works, Workers Compensation, Intro to Cal-OSHA, Investigating Claims and Preserving Evidence, Conducting Risk Reviews, Contractual Risk Transfer, Traffic Control for Construction Zones, Design Immunity, Dangerous Conditions, Unwarranted Traffic Control Devices, and Public Works Exposures and Lessons Learned.
This academy will be offered again June 6 – 8, 2017, at the Hyatt Regency Resort & Spa in Indian Wells. Registration is complimentary for this Academy. Registration includes lodging, and breakfast and lunch, and is limited to 25 attendees. This registration deadline is May 9, 2017.
Following is a list of additional Academies that will be offered in 2017:
Leadership Academy, March 14 – 16, 2017, Paso Robles, CA – La Bellasera Hotel
This academy is intended for all management-level employees. The registration fee is $375 for members staying at the hotel, breakfast and lunch is included. For members not staying at the hotel, the fee is $175. Registration for this academy is limited to 25 attendees and the registration deadline is February 14, 2017.
Human Resources Academy, April 4 – 6, 2017, Westlake Village, CA – Westlake Village Inn
This academy is intended for all human resources employees. The registration fee is $375 for members staying at the hotel; breakfast and lunch is included. For those members not staying at the hotel, the fee is $175. Registration is limited to 25 attendees and the deadline to register is March 7, 2017.
Newly Elected Officials Academy, May 21 – 23, 2017, Laguna Beach, CA – Surf & Sand Resort
Participation in this academy is for elected officials in their first term of office and is by invitation only. Registration is complimentary for this Academy. Registration for the Academy will open following the March/April elections. Email invitations will be sent directly to eligible council/board members with a copy to the city manager/chief executive and agency clerk.
James Lewis Awarded 2016 ICMA Strategic Leadership & Governance Award
ICMA, the International City/County Management Association, advances professional local government worldwide. The organization’s mission is to create excellence in local governance by developing and fostering professional management to build better communities. ICMA identifies leading practices to address the needs of local governments and professionals serving communities globally.
ICMA’s Local Government Excellence Awards celebrate the value of professional management and honors creative contributions to professional local government leadership. The Awards highlight public awareness of the value of professional management and its impact to the quality of life in our communities.
Jim Lewis, City Manager of Pismo Beach, was awarded the prestigious 2016 ICMA Strategic Leadership & Governance Award. This award recognizes the innovative and successful local government programs or processes that have significantly affected a local government organization’s culture or strategic direction. Jim was recognized during ICMA’s 102nd Annual Conference in Kansas City, September 25-28, 2016.
Following is an excerpt from the 2016 ICMA Annual Awards Program:
Building an Employee Culture of Excellence, Service, and Pride: Pismo Beach, California, James R. Lewis, City Manager
Challenge: Develop a program to bring about cultural change rooted in service, innovation, and collaboration that would increase retention of skilled employees and attract the best and the brightest.
In 2013, Pismo Beach, a small, geographically isolated, full-service city, was in the human resources version of a perfect storm. Thanks to retirements and pension reform, the city would lose more than half its workforce between 2012 and 2016, including its veteran city manager. But with a rigid departmental structure that dampened collaboration and communication and an aversion to risk taking, the city’s organizational culture had little to attract new talent.
In 2013, Pismo Beach hired a new “Generation X” manager, James Lewis, who valued inclusion, collaboration, and innovation. He knew cultural change was essential for success and began interviewing employees and community members and reviewing all city functions.
In November 2014, the city kicked off a new cultural program titled “Cuz We’re Pismo” at an all-day event attended by all nonessential employees. The day’s goals included articulating employees’ values; developing shared ownership in the city’s future; identifying what employees needed to be more effective; defining customer service expectations; and creating new relationships by breaking down department divisions.
Mr. Lewis then recruited staff from each department to serve on new strategic and operational committees. The city also solicited feedback for follow-up action plans and frequently updated staff on progress toward employee-set goals.
Today, the city emphasizes its new focus on service, innovation, and collaboration in all its recruitment and marketing materials. Quarterly new employee “cultural onboardings” reinforce Pismo Beach values and commitment to service, and annual celebrations continue.
Cost: Given the number of events, training opportunities, and recognition programs, the program is extremely cost effective. Total investment for more than 140 full- and part-time employees is $132 per person, for a total cost of $18,500 annually.
- Resident satisfaction is up, as demonstrated by recent passage of a sales tax initiative by 71.2 percent.
- City employees are empowered to provide service solutions that cut across department lines.
- Employee participation in events and professional development opportunities is higher than ever, the city is attracting stellar new talent, and retention is increasing.
- Changing a city’s culture requires a clear objective, frequent communication, consistent effort, sincere engagement, and constant reevaluation of techniques used.
- Soliciting employee feedback is key to developing plans for new programs or tools to enhance job performance.
Photo: James Lewis, City Manager of Pismo Beach
Local Regulatory Options For Recreational Marijuana Under Proposition 64
By Stephen A. McEwen, Partner, Burke Williams & Sorensen, LLP
On November 8, 2016, California voters approved Proposition 64, known as the “Control, Regulate and Tax Adult Use of Marijuana Act” (the “AUMA”). Like the Medical Cannabis Regulation and Safety Act (“MCRSA”) adopted by the state legislature in 2015, the AUMA raises a wide range of regulatory and enforcement issues for California cities. This article will address those issues and provide guidance on the decisions that local governments must make in order to preserve local control over all marijuana land uses to the fullest extent possible.
The AUMA has two basic components: rules regarding personal use and cultivation of recreational marijuana and a regulatory system for recreational marijuana businesses. The AUMA allows individuals to possess, use, and cultivate recreational marijuana in certain amounts. An individual may possess up to 28.5 grams of non-concentrated marijuana or 8 grams of marijuana in a concentrated form (e.g., marijuana edibles). In addition, an individual may cultivate up to six living marijuana plants at his or her private residence provided that no more than six plants are being cultivated on the property at one time. The AUMA also establishes a regulatory system for commercial businesses that is very similar to the medical marijuana regulatory system under MCRSA. Under the AUMA, recreational marijuana cultivators, manufacturers, distributors, retailers, and testing laboratories may operate lawfully if they obtain a state license to operate and comply with local ordinances.
The AUMA does not limit local police power authority over commercial marijuana business and land uses. Cities may prohibit such businesses completely if they so choose. With regard to private cultivation, however, there is one important limitation on local police power. Cities may ban private outdoor marijuana cultivation, but they may not completely ban private indoor cultivation of six marijuana plants or less. The AUMA provides that private indoor cultivation of six marijuana plants or less is lawful under both state and local law and is only subject to “reasonable” local regulations.
Cities, therefore, must address the following issues:
- Marijuana Businesses.Cities will need to decide whether they want to prohibit or allow marijuana businesses. Any city that wants to allow a marijuana business will need to decide what type of marijuana businesses will be allowed, where such businesses can locate, what regulations will apply to marijuana businesses, and what type of permit will be required, if any. Cities will need to give careful consideration to the procedures for processing permit applications and permit suspensions and revocations.
- Private Marijuana Cultivation.Cities will need to determine what types of regulations apply to private indoor cultivation of six marijuana plants or less and the extent to which other forms of private marijuana cultivation is permissible.
- Personal Marijuana Use.Both the AUMA and existing California laws on controlled substances preempt or limit what cities can do with regard to personal use, possession, transportation, and processing of marijuana. To the extent that cities want to minimize the secondary effects of marijuana use, they may consider adopting or expanding general smoking restrictions.
- Marijuana Deliveries.A city may prohibit or regulate marijuana deliveries that either originate or terminate within its boundaries, but it may not prohibit marijuana delivery services from using public roads to pass through the city.
The AUMA will divide state licensing and enforcement responsibilities in the same way as MCRSA. The Department of Food and Agriculture will issue all marijuana cultivation licenses, the Department of Public Health will issue licenses for marijuana manufacturers and testing laboratories, and the Department of Consumer Affairs will issue licenses for marijuana retailers, distributors, and microbusinesses (a microbusiness is a marijuana business that cultivates marijuana in an area less than 10,000 square feet and acts as a licensed distributor, Level 1 manufacturer, and retailer).
The state may create additional licensing categories as necessary. Each of these licensing authorities is responsible for creating “reasonable” regulations governing their respective areas of responsibility, including regulations regarding enforcement, fees, and license renewal. These licensing authorities will begin issuing state marijuana licenses on January 1, 2018. (Bus. & Prof. Code § 26012(c).) Marijuana licenses will be valid for one year and a separate license will be required for each business location. (Bus. & Prof. Code §§ 26050(c), 26055(c).) For the first year of AUMA licenses, applicants will have to establish that they have been California residents since January 1, 2015, and there will be licensing priority for applicants that have been operating in compliance with the CUA since September 1, 2016. (Bus. & Prof. Code §§ 26054.1, 26054(a).)
The AUMA sets forth various standards, criteria, and restrictions regarding the issuance, denial, and renewal of state marijuana licenses. Unlike under MCRSA, there is no requirement that a marijuana business obtain a local permit, license or approval. However, state licensing authorities may not issue state licenses if the “approval of the state license will violate the provisions of any local ordinance or regulation.” (Bus. & Prof. Code § 26055(e).)
Like MCRSA, the AUMA preserves local control over commercial marijuana establishments. Business and Professions Code section 26200 provides that cities may “completely prohibit the establishment or operation of one or more types of businesses licensed under” the AUMA. Therefore, as under MCRSA, cities will have a wide range of regulatory options under the AUMA to deal with recreational marijuana land uses. These options include an express ban on all or some of the business permitted under the AUMA or a regulatory scheme for commercial marijuana businesses.
A marijuana regulatory ordinance could include locational restrictions, the requirement of a regulatory permit that is subject to annual renewal, and the imposition of various safety-related operating requirements. Locational restrictions may include the designation of certain zoning districts as permissible locations, separation requirements to avoid clustering of marijuana land uses, or a limit on the number of local marijuana permits that can be issued. The AUMA expressly permits cities to establish an allowable ratio of retail, microbusiness, or non-profit licenses to the population in the census tract. (Bus. Prof. Code § 26051(c)(2).)
Operating requirements can be extensive and include the following: the use of licensed security guards, designated hours of operation, prohibitions against on-site marijuana consumption, installation of adequate odor control devices and ventilation systems, and limitations on access to minors. Please keep in mind that local jurisdictions have discretion to adopt standards, requirements, and regulations regarding health and safety, environmental protection, testing, security, food safety, and worker protections that are more stringent than those established by the state. (Bus. Prof. Code § 26201.)
Cities that choose to issue permits for marijuana businesses should expect to be inundated with permit inquiries and/or applications. With the amount of money that is at stake, unsuccessful applicants will likely look for potential ways to attack the city’s selection and evaluation process. Those cities, therefore, should give careful consideration to how they are going to process applications for marijuana businesses. Local ordinances should provide clear guidelines as to what information is required in the application, what grounds constitute a basis for denial of a permit, the type of permit to be issued (CUP or renewable regulatory permit), and who is responsible for making the decision on issuing the permit. Some cities vest the decision making authority in the city manager, police chief, or other staff member. Others leave the ultimate decision to the city council.
A city could take a number of approaches for processing applications: (1) first come, first serve; (2) lottery; and/or (3) scoring system. Under a lottery system, pre-qualified applicants are selected through a random lottery to apply for the required marijuana land use permit. Under a scoring system model, applicants would receive a score based on a review of their applications and, in some instances, an interview. Those applicants who receive the highest scores would then be recommended for approval to the decision making authority. If this selection method is used, it may be preferable to use a neutral outside consultant to review the applications, conduct interviews, and make recommendations.
Regardless of which approach a city may take regarding marijuana businesses, cities will likely need to adopt express ordinances. The AUMA states expressly that “marijuana is an agricultural product.” (Bus. & Prof. Code § 26067(a).) In addition, the AUMA specifically describes recreational marijuana dispensaries as “retailers.” (Bus. & Prof. Code § 26070.) In many cities, agricultural land uses, nurseries, and retail uses are permitted by right in certain zoning districts. As a result, those cities likely cannot rely on the concept of permissive zoning (any land use not identified in the zoning code is deemed prohibited) to prevent unwanted marijuana businesses. Therefore, in order to avoid unwanted or unregulated marijuana land uses, cities should take steps to enact express municipal code provisions for recreational marijuana businesses.
In adopting any ordinance on recreational marijuana businesses, cities should consider whether Government Code section 65853 applies. Government Code section 65853 provides that any zoning ordinance regulating the use of buildings and land requires a public hearing before both the planning commission and the city council before formal adoption. Each city, therefore, will need to determine whether its marijuana ordinance falls within the definition of a zoning ordinance or amendment. If it does, the City will need to make sure it complies with the public hearing requirements under Government Code section 65853.
Under the AUMA, local control over private cultivation is more limited than it is under MCRSA. Cities can completely prohibit private outdoor cultivation, but they cannot prohibit cultivation of six marijuana plants or less within a private residence or within a fully enclosed and secured residential accessory structure to a private residence. (Health & Safety Code § 11362.2(b)(1).) Rather, cities can only “enact and enforce reasonable regulations that reasonably regulate” personal indoor cultivation. (Health & Safety Code § 11362.2(b)(1).)
Cities, therefore, must answer the following questions regarding private cultivation:
- What reasonable regulations, if any, will apply to private indoor cultivation of six marijuana plants or less?
- Should the city allow or prohibit other forms of private cultivation, including outdoor cultivation?
- If other forms of private cultivation are permissible, what reasonable regulations will apply?
The AUMA does not define what constitutes a reasonable regulation of personal indoor cultivation. However, the term “reasonable regulation” would likely include prohibitions on nuisance odors and the use of gas products (CO2, butane, propane, natural gas, etc.) on the property for purposes of indoor marijuana cultivation. A city could also require that all private cultivators obtain the property owner’s consent, if applicable.
Some cities that have addressed private marijuana cultivation have imposed local permit and safety inspection requirements. So long as such requirements do not effectively ban private indoor cultivation, courts would likely consider them to be reasonable regulations and therefore permissible under the AUMA. The issue is whether city staff members have the time and resources to implement a private marijuana cultivation permit and inspection program. Many cities have decided based on local circumstances that the burden and expense of local permit and inspection requirements for private indoor cultivation outweigh the potential benefits of the added regulations.
If a city is going to adopt a new cultivation ordinance or amend an existing one, it should treat it as a land use ordinance and follow the notice and public hearing procedures required by Government Code section 65853. In Kirby v. County of Fresno, the Court of Appeal viewed local control over private cultivation as a land use issue. Following the procedures referred to in Government Code section 65853 represents the safest strategy and should help minimize the possible legal challenges to any cultivation ordinance.
With regard to personal use and possession of marijuana, the AUMA makes it lawful under state AND local law for people 21 years or older to engage in a variety of marijuana activities, including:
- Possessing, processing, transporting, purchasing, obtaining or giving away 28.5 grams of marijuana not in the form of concentrated cannabis or 8 grams of concentrated cannabis
- Cultivating up to six plants
- Smoking or ingesting marijuana or marijuana products
State law defines crimes and penalties regarding personal use and possession of controlled substances, including marijuana, and regulates drug paraphernalia, thus preempting local regulations over these topics. Therefore, in order to deal with the secondary effects of marijuana use, the best option for cities and law enforcement will be to enforce the limits on personal use set forth in the AUMA.
The AUMA provides several exceptions to the legalization of personal marijuana use and possession, including the following:
- No smoking or ingesting marijuana in a public place (a city can allow marijuana use inside a licensed marijuana retailer or microbusiness provided the area is age-restricted and the use is not visible from a public place)
- No smoking marijuana in places where smoking tobacco is prohibited
- No smoking or ingesting marijuana while driving a car, boat, or aircraft.
- No smoking marijuana within 1,000 feet of a school, day care center, or youth center, while children at present at those locations unless in or upon the grounds of a private residence and the smoke is not detectable
The phrase “public place” is not defined in the AUMA and it is not defined in the context of other laws prohibiting certain acts in public places. The courts have interpreted the phrase as meaning any place that is reasonably accessible to the public without a barrier. This requires a case-by-case determination. Under this definition, streets, sidewalks, parks, shopping centers, places of business, and most parking lots will be considered public places and off-limits to marijuana use. It does not matter whether the property is publicly or privately owned. The courts have held that a public place includes the area outside a home in which someone can enter without challenge. The phrase public place, however, does not include a place that is merely exposed to public view. It does not include a backyard or a front yard that is fenced. Therefore, the area that is considered a public place could vary from property to property.
The other big exception under the AUMA for marijuana use is for places where smoking tobacco is prohibited. There are many state and local laws limiting where people can smoke. A city can adopt more restrictive smoking bans than those imposed by the state. If a city wants to further limit where marijuana can be smoked, the best option would be to expand the city’s tobacco smoking restrictions.
Finally, a city may consider adding express provisions regarding marijuana deliveries. Under both MCRSA and the AUMA, a city retains the police power authority to prohibit marijuana deliveries that begin or end within the city’s boundaries. A city, however, cannot prevent a delivery service from using public roads to simply pass through its jurisdiction from a licensed dispensary to a delivery location outside of its boundaries.
A city could also allow marijuana deliveries, which under state law can only be made by licensed dispensaries or retailers. The state is working on the implementing regulations, which may further explain how medical and recreational marijuana deliveries will occur. It will be up to the Department of Consumer Affairs to determine how much marijuana can be transported during the delivery process. This is an important question because a small amount of marijuana can have a significant street value, making it an attractive criminal target. Any health and safety regulations developed by the state for marijuana deliveries will represent the minimum state-wide standards.
The state is likely not going to issue licenses for marijuana businesses until January 2018. There is time, therefore, for cities to consider the issues described above and adopt appropriate ordinances. Cities should aim to have those ordinances in place before the state begins to issue marijuana licenses.
One Size Rarely Fits All: Proper Use of Sample Policies
By Kelly A. Trainer, Esq., Burke, Williams & Sorensen, LLP
Imagine this: Your employee is consistently “borrowing” agency office supplies and other equipment for personal use and to manage an online business. You want to fire her for this misuse of agency property, but your attorney has raised concerns about the chances of success at the disciplinary appeal because you do not have a policy or rule that prohibits personal use of agency equipment. Or perhaps you have an employee who has taken to social media to complain about the agency, but you have not gotten around to drafting a policy about this, so human resources and the supervisor are unsure what they can or cannot do about this. Or maybe you have an employee that you think is misusing agency computers, but your attorney has raised concerns about your ability to lawfully search his computer because you don’t have a policy expressly reserving the right to search and limiting an employee’s expectation of privacy.
These are but a few of the common issues that can result from not having a policy in place. In general, having clear, up-to-date policies and rules is a good practice. Employees generally respond well to knowing what is expected of them. Having clear rules and policies makes daily operations easier because supervisors have guidance about how to handle issues when they arise. Having a policy in place is helpful in disciplinary appeals because it can be key evidence in establishing that the employee was aware that the conduct was prohibited. Policies can also generally establish the overall fairness of an employer’s action and can be a crucial part of a defense to any number of claims in litigation.
As important as policies are, often times employers go without some policies or having policies that are outdated or incorrect. Even when an employer decides to create or update policies, the task can be daunting. Few people enjoy writing a new policy from scratch. Most would rather have a “starting place.” This starting place often comes in the form of a “sample policy” found in a Google search or from a policy borrowed from a colleague at another agency. Often times the starting place comes from professional organizations such as the Society for Human Resource Management (SHRM), ADP, the Chamber of Commerce, Lexipol, or even the California JPIA. Such policies are often well-researched, well-written, and legally compliant. However, while these policies can provide an excellent starting point for drafting, all too often, the drafter simply takes the policy, changes the names and titles and voilá – a policy has been born! Yet, using another’s policy can be a trap for the unwary. Here are some basic tips of good policy-drafting:
It’s a Starting Point; Not an Ending Point. Using a sample policy, even one provided by a reputable professional organization, does not alleviate the agency of the responsibility for the content of the policy. The drafter needs to take a critical eye to every term and provision of the policy and be prepared to justify including them or not. If a policy is ever criticized or questioned in a future administrative hearing or litigation, there is no defense for borrowing a policy from another agency.
Never Assume the Policy is Legally Compliant for Your Agency. California is a complicated state for employment law – especially for public agencies. A policy that was drafted for a private employer might involve different legal considerations than policy for a public employer. For example, public employers have to contend with federal constitutional issues when drafting a drug-free workplace policy or a social media policy that private employers do not have to consider. In addition, different types of public agencies have different laws that apply to them. For example, school districts have a unique statutory scheme of leave laws that do not apply to other public agencies, and charter cities are exempted from laws that are not a matter of statewide concern or that infringe upon their constitutional authority.
The size of your agency can impact the legality of the sample policy. Certainly there are a number of laws that are triggered once an agency employs a certain number of employees. In addition, “reasonable” compliance with laws can also be different depending on the size of the agency.
Further, labor and employment laws are constantly changing. It is always important to confirm that the relevant laws have not changed since the drafting of the sample policy. For example, the California Family Rights Act (CFRA) regulations were updated in 2015, and the Family Medical Leave Act (FMLA) regulations were updated in 2009 and 2013; yet many employers have not updated their family medical leave policies.
Lastly, it is always important to remember that you can never guarantee that some random policy found during an internet search is legally compliant.
Remember that Your Agency Has Its Own Rules. Any time an agency is using a sample policy, the drafter must take the time to consider the impact this policy has on the larger structure of the organization. The person who drafted that sample policy did not consider whether your agency’s personnel rules contradict with the definition of “workweek” that was used in the sample policy. The policy drafter must always evaluate what other departmental policies, agency-wide policies, labor contracts, resolutions, and ordinances exist and be sure that the new policy fits in the system appropriately. Failure to consider this issue can create difficult conflicts in the agency’s policies and procedures. For example, if a police department adopts a policy that provides that an officer will have a pre-disciplinary Skelly meeting with the assistant police chief, but the city’s personnel rules state that all employees have a right to a pre-disciplinary Skelly meeting with the assistant city manager, what due process should the employee have? Resolving this question can be complicated and can often give rise to challenges by an employee or labor union.
Remember that Your Agency Has Its Own Practices. A policy is only as strong as the people who enforce it. If, for example, a sample policy has a fantastic procedure for performance evaluations, that fantastic procedure is worthless if an agency does not have sufficient staff or resources to implement it as intended. In addition to confirming that a policy conforms with the other rules and policies of the agency, it is important for a policy drafter to confirm that the procedures required by that policy can and will be followed, and that it does not improperly impact other practices. For example, if an agency borrows from a harassment prevention policy that has a very detailed procedure in place for the employer’s response to a complaint of harassment, and the agency is not able to meet that procedure due to limited staffing, the failure to follow the harassment policy could be used as evidence that an employer failed to adequately respond to a complaint of harassment.
Review and Revise. Revisit rules, policies, and employee handbooks periodically. Update policies that have changed (make sure you communicate the changes to employees) and consider other changes to address issues that have come up. If you change a policy and you do not change your agency’s employee handbook, you are inviting confusion over what the policy or procedure actually is, as well as potential legal issues. In addition, periodic review of policies makes the review easier to undertake. The more outdated a policy is, the longer the review and revision will take.
Meet Your Labor Obligations. If your agency’s employees are represented by a labor organization, there is a very strong likelihood that employment-related policies will fall within the scope of bargaining under the various California bargaining statutes. As such, employers will be obligated to follow the procedural statutory steps with the labor organization before implementing a new policy. When in doubt, contact your labor attorney.
Educate Your Employees. The importance of training and educating employees cannot be overstated. Any time a new policy is implemented, the agency should always consider how to best introduce that policy to the workplace. Is a formal training necessary? Can you explain it with an email summary? Can you make a brief webinar? Should you give talking points to supervisors for their use when introducing the new policy? Should you require a signed acknowledgement of receipt and opportunity to review?
Talk to Human Resources (and Maybe Even an Attorney). Any time a supervisor is writing a new personnel policy, it is important to involve the agency’s human resources staff to obtain input and resolve any potential concerns early on. Human resources will often be able to assist with the issues identified above. Also, depending on the policy, it may be a good idea to include the agency’s legal counsel in the drafting or at least the final review.
New Federal OSHA Injury and Illness Reporting Rule
By Alex Mellor, Risk Manager and Ryan Thomas, Training and Loss Control Specialist
Effective January 1, 2017, Federal OSHA is instituting a new injury and illness reporting rule which the agency believes will improve safety for workers across the country. States with their own occupational safety and health agencies, such as California, must adopt requirements that are substantially identical within six months of publication of the final rule.
The new rule requires “establishments” with 250 or more employees to submit information from their 2016 OSHA Form 300A by July 1, 2017. These same employers will also be required to submit information from all 2017 OSHA forms (300A, 300, and 301) by July 1, 2018. Beginning in 2019 and every year thereafter, the information must be submitted by March 2. Further, establishments with 20-249 employees in certain high-risk industries must submit information from their 2016 Form 300A by July 1, 2017, and their 2017 Form 300A by July 1, 2018. Beginning in 2019 and every year thereafter, the information must be submitted by March 2.
The injury and illness information collected by OSHA will be analyzed to enable the agency to use its enforcement and compliance resources more efficiently. Some of the data will be published on OSHA’s website and made available to workers, job seekers, customers, researchers, and the general public. By improving the transparency of these data, OSHA hopes to promote greater awareness of workplace health and safety and to positively affect the rates of workplace injuries and illnesses.
Importantly, the rule also prohibits employers from discouraging workers from reporting an injury or illness. The final rule requires employers to inform employees of their right to report work-related injuries and illnesses free from retaliation. It also clarifies the existing implicit requirement that an employer’s procedure for reporting work-related injuries and illnesses must be reasonable and not deter or discourage employees from reporting. California JPIA members with workplace injury and illness incentive programs should pay particular attention to this part of the rule. While the new rule doesn’t entirely prohibit incentive programs, programs that deter or discourage employees from reporting an injury or illness are prohibited. For example, programs that provide rewards or incentives to employees after going a certain period of time without a workplace injury or illness, are now strongly frowned upon.
Given the new rules outlined above, the Authority’s OSHA Recordkeeping instructor-led course is being updated for 2017.
This updated course is designed to help member agencies recognize workplace hazards and correct hazardous conditions by keeping track of work-related injuries and illnesses and their causes. During this workshop, the OSHA 300, 301, and 300A forms will be reviewed. Guidelines for reporting injuries and illnesses, and employees (full-time, part-time, temporary, contract, etc.) for whom reporting is required, will be discussed. The required record retention, when records should be updated, and new OSHA rules and regulations will also be presented.
To schedule this training for your agency, please contact Ryan Thomas, Training and Loss Control Specialist. For further information regarding the new OSHA injury and illness reporting rule, please visit OSHA’s website here: https://www.osha.gov/recordkeeping/finalrule/. Or, contact your assigned Risk Manager.
Cal/OSHA Amendment Significantly Expands its Definition of “Repeat” Violations
Effective January 1, 2017, Cal/OSHA will be utilizing a broader definition of “Repeat” violation under California’s Health and Safety Code. This is significant for California employers because if Cal/OSHA finds a Repeat violation, the employer could initially be subject to a penalty of up to $70,000, and up to $124,709 or more when Cal/OSHA updates its penalties as required by federal OSHA. According to OSHA, the purpose of the greater penalty for Repeat violations is to encourage an employer’s ongoing compliance with safety and health standards at all of its locations without requiring OSHA to engage in separate compliance actions at each location. Because Cal/OSHA has always previously limited Repeat violations to a single worksite reoccurrence, and because of the forthcoming increased penalty structure, California employers will need to develop a more strategic response to any citations they receive.
In its 2013 Federal Annual Monitoring and Evaluation (FAME) Report, federal OSHA found that California’s enforcement of Repeat violations was lower than the federal average and noted that the policy used by the state was different and less protective than that applied by federal law. As a result, Cal/OSHA was directed to amend California Code of Regulations Title 8, Section 334(d), to be consistent with the definition of a Repeat violation as used by Federal OSHA.
Currently, a Repeat violation is defined in section 334(d), as a violation where an employer has corrected, or indicated correction of, an earlier violation for which a citation was issued and, upon a subsequent inspection within three years, Cal/OSHA finds that the employer has recommitted the same violation. For employers with fixed establishments, section 334(d) currently limits Cal/OSHA’s authority to issue a repeat citation to the cited establishment, which means that both the underlying and the subsequent violation must have occurred at the same work site or address.
Now, however, California employers will be subject to a much broader definition of Repeat violation. Specifically, Cal/OSHA amended section 334(d) by:
- Expanding the “look back” period of a Repeat violation from three years to five years.
- Defining a Repeat violation as a substantially similar violation.
- Increasing the geographic scope of a Repeat violation to any violation in the state.
Cal/OSHA Will Now Look Back Five Years
The current three-year look-back period of a Repeat violation begins to run on the date of the conduct giving rise to the violation. But, if the employer appeals the citation, the appeal prevents the citation from becoming final, and a final citation is necessary for a Repeat violation to be found. As the three-year clock runs from the date of the conduct, the employer could minimize its chance of a Repeat violation by appealing every citation issued.
Cal/OSHA’s amendment eliminated an employer’s incentive to appeal solely to shorten or exhaust the look-back period. Now, the starting time for calculating the period begins at either:
- the date of the final order affirming the existence of a previous violation cited in the underlying citation;
- the date on which the underlying citation becomes final by operation of law; or
- the date of final abatement of the violation cited in the underlying citation.
Cal/OSHA also expanded the window of time for a Repeat violation from three years to five years, which is a policy change that federal OSHA made in 2010.
Cal/OSHA Will Now Consider Substantially Similar Violations
Cal/OSHA currently defines a Repeat violation as occurring when the employer has corrected, or indicated correction of an earlier violation, for which a citation was issued, and upon a later inspection is found to have committed the same violation again.
Cal/OSHA amended the rule to broadly allow it to find a Repeat violation for a violation of a “substantially similar” regulatory requirement. This change places Cal/OSHA directly in line with federal OSHA. The “substantially similar” standard is the language used by federal OSHA but is not officially defined by Cal/OSHA. Federal OSHA also does not have a regulatory definition of “substantially similar” but the term has been interpreted in policy documentation and numerous citation appeal decisions. As the term is undefined, employers will have some opportunity to influence the interpretation of what constitutes substantially similar violations supporting a Repeat violation in California, but this may be one area where the state adopts the federal interpretation. The greater scope naturally increases the frequency at which a Repeat violation could be issued.
Cal/OSHA Will Now Consider Statewide Violations
The current rule defining the geographic scope of Repeat violations is that the later citation must involve the same factory, store, or other fixed establishment that was previously cited. But, for field sanitation standards, a Repeat violation is any subsequent violation state-wide, on the theory that farm labor contractors work up and down the state during a short span of time and, thus, violations at different sites in California are akin to Repeat violations.
Cal/OSHA eliminated the difference between field sanitation and other industries and removed the geographical restrictions that currently limit a Repeat violation to a specific facility or store. In other words, in determining whether to cite the employer for a Repeat violation, Cal/OSHA will consider any violation in the state as opposed to violations at a specific location. Thus, for example, if Cal/OSHA finds a violation at a facility in Los Angeles, and if the employer has facilities in Sacramento and San Francisco, the agency will determine whether citations for substantially similar violations were issued at the facilities in those two cities.
Implications for Employers
Starting in 2017, California employers can no longer focus solely on the financial implications of settling a citation or contesting it. Employers will have to be more strategic in their response. Because the Repeat classification and increased penalties are not directly limited to Serious violations, employers will even have to consider their acceptance or appeal of General and Regulatory citations.
Employers can initially focus even more attention on preventing workplace safety violations through comprehensive programs. However, if an employer receives a citation, it should carefully evaluate whether simply paying the citation is the best strategy and also should immediately determine whether it is in compliance with other standards that are “substantially similar” to the one for which it was cited at all of its California facilities. This increased focus will raise the cost of abatement for employers that do decide to accept a citation because they will need to ensure abatement at all of their locations to avoid future Repeat violations with their substantial penalties. Overall, this change will undoubtedly lead to more litigation over Cal/OSHA citations as employers will need to manage their citation history to avoid future Repeat violations occurring over a five-year period.
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