Issue 75-May 2018
Why We Need Diversity in City Management
By Wade McKinney
Wade McKinney is city manager of Indian Wells and president of the California City Management Foundation
(Reprinted from Western City Magazine, May 2018)
Cities are home to people from all walks of life. But how often does a city’s workforce — especially at management levels — closely reflect the diversity of the community it serves? Local governments face a growing challenge of providing public service to increasingly diverse communities. Promoting diversity at City Hall is a key strategy for ensuring equitable service.
Why Bosses Appreciate Diversity
I challenge my fellow city managers to take a page out of Apple, Inc.’s playbook when it comes to diversity. At www.apple.com/diversity, the company outlines why it is mindful about forming teams and hiring leaders from varied backgrounds. Its tagline opens with “Humanity is plural, not singular.” That concept rings as true for local government as it does in the world of technology.
As Apple and other companies have demonstrated, having a truly diverse staff can lead to intensely creative problem-solving and foster a flexible, collaborative and inclusive work environment.
In my work as a city manager, I have come to cherish the ways that my staff members set themselves apart from one another. The most valuable differences reveal the way each person thinks and how they act upon their ideas. City managers who are able to harness these unique perspectives can leverage the full potential of their staff members to creatively tackle new challenges.
Why Staff Members Appreciate Diversity
Managers are not the only ones to benefit from a diverse workforce. Endeavoring to understand differing viewpoints and talents also enhances city staff’s ability to work as a cohesive team.
Shared experiences and challenges faced by colleagues can increase empathy and inform future local government decisions. Moving forward, the team members can work together to address multiple aspects of a single issue to mitigate potential future municipal or community problems.
Women in the Profession
If our goal is to create a municipal workforce that reflects all segments of its community, the topic of gender must be part of the conversation. As of April 2016, among the 6,617 International City/County Management Association (ICMA) members working for U.S. local government full time, 28.5 percent (1,886) are women. Roughly 3,400 of the 6,617 are chief administrative officers (CAOs), of which 15 percent are women. Among the 1,100 ICMA members who serve at the assistant or deputy CAO level, 37.2 percent (409) are women.
Cities — and all organizations — are stronger when they draw upon the talents and perspectives of the entire community, not just the male portion. A mix of genders in the workplace can tap into previously unexplored insights about the general population and keep our public services relevant.
City managers play a key role in creating change within the workplace. I encourage my colleagues to examine their own cities, acknowledge the various obstacles that may impede upward mobility for women and collaborate with staff to improve the work environment.
The Next Generation
A successful city organization continually learns and evolves. The public sector is seeing — and will continue to see — a “silver tsunami” of retirees. To ensure that their city continues to thrive well into the future, city managers should implement a culture that exposes new and emerging talented employees to the upper management path.
Mentorship should also be a part of this culture. As Patricia Martel, city manager of Daly City, has said, “One of the most critical things is to have a role model. You can’t be who you can’t see.” As city managers, we need to keep our younger employees engaged in the vision of our organizations and discover what will keep the next generation motivated to pursue a long career in public service.
I am fortunate to have had several mentors over the years who taught me many valuable lessons ranging from basic municipal information to profound insights about the local government profession. Mentors can see where we need to improve, and they encourage us to expand our knowledge. Furthermore, having a mentor can speed up the learning process, helping early-career employees better tackle challenges that their mentor has encountered in the past.
Community Appreciates Staff Who Are Like Them
Diversity at management levels creates more opportunities for a city to better connect with its community. A mix of cultures in the workplace can help city leaders to contextualize issues that may be unique to their municipality. With that foundation, the city can better engage with its multiracial and multicultural populations.
Public policy affects residents, first and foremost. As city administrators, we have a duty to ensure our community members feel they are being heard, especially when the city is considering decisions that affect their lives. If residents feel they are understood and see that they are truly being represented, they are typically more likely to participate in the civic life of their community and engage in local government activities.
The idea of cultivating diversity is not new. Many cities and public agencies have implemented measures to better reflect California’s increasing diversity. An analysis of the work done to promote diversity in communities of all sizes can help local leaders create an action plan that is responsive to their city’s unique needs and demographics.
Embracing a new organizational culture does not happen overnight. City managers should lead their teams and staff members in ongoing discussions about why their personal experiences matter and how they can help create lasting change that benefits the entire community they all serve.
Registration Now Open for The Amazing Race to Risk Management Success
Registration is now open for the 23rd Annual Risk Management Educational Forum, to be held in Carlsbad at Park Hyatt Aviara from September 19 – 21, 2018.
The Best Team
Reaching the finish line is only one part of a successful race. Those who finish the race aren’t winners simply because they reached their goal, but also because they learned the path and planned for pitfalls.
We’re bringing the best to be on your team. In this race, you’ll learn about many risks you may face on your way to the finish line. There will be experts to help you overcome fear of disaster, cast aside threats from those attempting harm, and remove doubts as to whether your resources will last.
This year’s keynote speaker and “Artist for the People,” Phil Hansen, overcame a tremor in his drawing hand to create art in new ways. Phil’s ability to draw art parallels to the business setting has won him followers among industry, business, and public-sector leaders. Phil’s approach to achieving artistic success is not only a natural fit for The Amazing Race to Risk Management Success but also a necessity for how to adapt to the accelerating pace of change.
Our coaches for two and one-half days include attorneys, management experts, claim experts, city managers, and others who will present sessions such as The Homeless Dilemma, Why Injured Employees Hire an Attorney, Site Security, Decision Making for Elected Officials, and more. The goal is to equip you and your public agency staff and officials with the tools necessary to avoid many current dangers.
You can review the full Forum agenda here.
Registration is limited to public agency officials and employees, and the Authority’s business partners. Registration is free to California JPIA members. Non-member registration fee is $475. Lodging is not included in your Forum registration. The Authority’s room block sells out early, so make your hotel reservations now.
For more information and to register for the Forum, click here.
Photo: Phil Hansen
Annual Meeting of the Board of Directors
by Jonathan R. Shull, Chief Executive Officer
The Annual Meeting of the Board of Directors will be held Wednesday, July 18, 2018 at 7:00 p.m.
Those attending will have the opportunity to meet the Executive Committee and Authority staff, and network with members of the California JPIA. The business meeting will present information about the Authority’s objectives, vision, and accomplishments over the past year, including recognition of the winners of the 2018 Risk Management Awards.
In addition, voting delegates will elect four Executive Committee members. Also, the Board of Directors will elect one member from the Executive Committee to serve as Vice President for a two-year term.
The meeting will be held at the Authority’s La Palma campus at 8081 Moody Street. A buffet dinner will be served al fresco at 5:30 p.m. with the Board of Directors meeting immediately following. Voting delegates and up to one additional member representative are eligible to receive lodging and travel reimbursement for attending the meeting. A $100 stipend will be provided to the voting delegate or alternate of each member agency attending the meeting.
On an annual basis the California JPIA asks members to certify designated California JPIA Director and Alternate(s) prior to the annual Board of Directors meeting. Please click here to complete the certification. Registration for the Annual Meeting of the Board of Directors will open in June. For questions or assistance please contact Denise Covell, Office Assistant.
I hope you will be able to join us.
Drug-Free Workplace Policy Revised
By Abraham Han, Administrative Analyst
The Authority has recently updated the “Drug-Free Workplace” policy template to assist members with maintaining a workplace that is free of drugs and alcohol and to discourage drug and alcohol abuse by employees. This policy governs not only the abuse of alcohol and illegal drugs, but also the use and abuse of legal drugs in the workplace.
Employees who are under the influence of alcohol or who have any illegal drugs in their system or who abuse legal drugs while conducting or performing business endanger their own health and safety and the health and safety of others. Other work-related problems could arise, including absenteeism and tardiness, substandard job performance, increased workloads for coworkers, behavior that disrupts other employees, delays in the completion of work, inferior quality in service and disruption of resident relations.
The policy template covers topics such as agency consent for use of legal drugs, prohibited conduct, substance screening, disciplinary action, criminal convictions, confidentiality, and counseling. The template also includes references and appendices that help to provide context and foundation for the policy.
The “Drug-Free Workplace” policy template is available in the “Policy Templates” section of the Authority’s Resources and Documents library on cjpia.org.
For questions regarding the “Drug-Free Workplace” policy template, please contact your assigned Risk Manager.
New Resources Available: Mandated Reporter Policy Templates
By Abraham Han, Administrative Analyst
The Authority has recently created two new policy templates to assist members with the development of a policy for mandated reporter requirements. One template is specific to mandated reporter requirements as they pertain to children, and the other pertains to the elderly and dependent adults.
The two templates identify employees who are required to report child, elder, or dependent adult abuse under the law, sets forth the timeline and procedures for making reports, identifies safeguards for reporting parties, identifies penalties for failing to comply with reporting obligations, and establishes additional obligations of the agency and its employees and volunteers.
The templates also include pertinent acknowledgment form templates, relevant sections of state legislation, overview of signs of abuse and neglect, hotlines for child or adult protective services for California counties, and links to suspected abuse report forms in fillable PDF format.
The mandated reporter policy templates are available in the “Policy Templates” section of the Authority’s Resources and Documents library on cjpia.org.
For questions regarding the mandated reporter policy templates, please contact your assigned Risk Manager.
Legislative Update and the Authority’s Legislative Advocacy Efforts
By Jeff Rush, Workers’ Compensation Program Manager, and Abraham Han, Administrative Analyst
Each year, the California Association of Joint Powers Authorities (CAJPA) hosts a Legislative Action Day where member agencies and service providers hear about pending changes at the capitol and meet with legislators and their staff to discuss pending bills.
This year’s event took place on Tuesday, April 3 with five members of the California JPIA staff in attendance:
- Norm Lefmann, Assistant Executive Officer
- Jeff Rush, Workers’ Compensation Program Manager
- Carl Sandstrom, Business Projects Manager
- Maria Galvan, Regional Risk Manager
- Abraham Han, Administrative Analyst
The attendees addressed five key bills during the meetings with legislators and staff. Those bills include the following:
AB 1912 (Rodriguez). Public employees’ retirement: joint powers agreements: liability.
Summary: This bill would create joint and several liability for current and former members of a joint powers authority to protect the retirees of that authority if it were to default on its pension obligations. The retroactive component of this bill is particularly problematic as the membership in some joint powers authorities may change over time, and a member from one period of time could be held responsible for obligations created by other members during a different period of time.
AB 1998 (Rodriguez). Opioids: safe prescribing protocol.
Summary: This bill originally placed a number of reporting responsibilities on physicians who prescribe opioid medications. The amended version of the bill states the legislatures intent to reduce the number of opioid prescriptions in California. It also creates a detailed safe prescribing protocol which physicians would need to adhere to. Failure to abide by the provisions of this protocol would constitute “unprofessional conduct” and could be deemed a crime.
SB 538 (Monning). Hospital contracts.
Summary: This bill would prohibit contracts between hospitals and contracting agents, health care service plans, or health insurers from containing certain provisions, including, but not limited to, setting payment rates or other terms for nonparticipating affiliates of the hospital, requiring the contracting agent, plan, or insurer to keep the contract’s payment rates confidential from any payor, as defined, that is or may become financially responsible for the payment, and requiring the contracting agent, plan, or insurer to submit to arbitration, or any other alternative dispute resolution program, any claims or causes of action that arise under state or federal antitrust laws after those claims or causes of action arise, except as provided.
SB 1053 (Beall). Presentation of claims: local public entities: childhood sexual abuse.
Summary: This bill would eliminate the right of local public entities to enact a requirement for claim presentation prior to filing a lawsuit. CAJPA fully acknowledges and respects the rights of alleged victims of childhood sexual assault. However, to deny California public entities the right to promptly receive notice and initiate investments and negotiations early in such cases hurts not only the parties involved but also taxpayers who rely on local government services. The likely impact of this bill would be delayed investigations into claims of childhood sexual abuse, poor quality investigations due to the passage of time, and increased litigation costs for public agencies
SB 1300 (Jackson). Unlawful employment practices: discrimination and harassment.
Summary: This bill would provide that a person alleging that an entity failed to take all reasonable steps necessary to prevent discrimination and harassment from occurring is not required to prove that he or she actually endured sexual harassment or discrimination. CAJPA is supportive of the idea of educating employees about harassment and discrimination, including how to report complaints. However, this can likely be accomplished in a less expensive manner than the one proposed by this bill.
In addition to the above bills, the Authority is closely monitoring other bills that may have an impact on members. Relevant updates on bills will be communicated to members as the legislative session continues.
Preparing for Changes: California Legislative Update
By Kelly Trainer and Joel Moon, Burke, Williams and Sorensen, LLP
As is the norm, a new year will bring new laws for California employers. This article briefly outlines several key pending bills that will likely affect public employers if signed into law by Governor Brown during the 2017-2018 California legislative session.
AB 1867 (Reyes). Records Retention of Sexual Harassment Complaints
Act to Amend Government Code Section 12950.5
If enacted, AB 1867 would require all employers with 50 or more employees to maintain records of employee complaints of sexual harassment for at least ten years from the date of filing. The bill would also authorize the Department of Fair Employment and Housing to seek an order requiring an employer that violates the recordkeeping requirements to comply.
AB 1870 (Reyes, Friedman, and Waldron). Extended Time to File Discrimination Claims with DFEH
Act to Amend Government Code Section 12960 and Section 12980
Existing California law requires individuals alleging discrimination, harassment, or retaliation under the FEHA to file a complaint with the Department of Fair Employment and Housing within one year from the date upon which the unlawful practice occurred.
If enacted, AB 1870 would extend the period to file a complaint from one year to three years.
AB 1938 (Burke). Prohibition against Familial Status Discrimination
Act to Amend Government Code Section 12940 and Section 12940
Existing California law prohibits an employer from making a non-job-related inquiry of an employee or applicant regarding certain protected categories, including, but not limited to, race, religion, national origin, or gender.
If enacted, AB 1938 would prohibit an employer from inquiring about a person’s familial status. However, the bill would allow an employer to receive information regarding familial status that is provided voluntarily and without prompting. As currently drafted, AB 1938 defines familial status as: “one or more individuals under 18 years of age who reside with a parent, another person with care and legal custody of that individual, a person who has been given care and custody of that individual by a state or local governmental agency that is responsible for the welfare of children, or the designee of that parent or other person with legal custody of any individual under 18 years of age by written consent of the parent or designated custodian. The protections afforded by this part against discrimination on the basis of familial status also apply to any individual who is pregnant, who is in the process of securing legal custody of any individual under 18 years of age, or who is in the process of being given care and custody of any individual under 18 years of age by a state or local governmental agency responsible for the welfare of children.”
AB 2069 (Bonta). Medical Cannabis
Act to Amend Government Code Section 12940
Existing California law prohibits employers from engaging in various forms of employment discrimination against employees in certain protected categories. AB 2069 would amend the California Fair Employment and Housing Act (“FEHA”) to extend protections to medical cannabis users. If enacted, the bill would afford FEHA protections to employees who are qualified patients or persons with an identification card that use medical cannabis to treat a known physical or mental disability or known medical condition.
However, the bill would not prohibit an employer from refusing to hire an individual or discharging an employee who is a qualified patient or person with an identification card, if hiring or failing to discharge an employee would cause the employer to lose a monetary or licensing-related benefit under federal law. The bill would also not prohibit an employer from terminating the employment of, or taking corrective action against, an employee who is “impaired on the property or premises of the place of employment or during the hours of employment because of the use of cannabis.”
AB 2154 (Bonta). Union Member Release Time
Act to Amend Government Code Section 3543.1 and to Add Section 3558.7
Existing California law requires public employers to grant employee representatives of recognized employee organizations reasonable time off without loss of compensation or benefits for certain purpose in connection with labor relations, commonly known as release time.
If enacted, AB 2154 would create specific requirements relating to release time that would apply to all public employers and employees. The bill would require public employers to grant a reasonable number of employee representatives of the exclusive representative reasonable time off without loss of compensation or other benefits for specified activities, including, but not limited to investigation and processing of grievances, enforcement of a collective bargaining agreement or memorandum of understanding, preparation for meeting and conferring, testifying or appearing in conferences, hearings, or other proceedings before PERB, civil service, or the public employer, or serving as a representative for a new employee orientation.
AB 2366 (Bonta). Leaves of Absence for Sexual Harassment Victims
Act to Amend California Labor Code Sections 230 and 230.1
Existing California law requires employers with 25 or more employees to provide protected leave for employees who are victims of domestic violence, sexual assault, or stalking for certain purposes.
If enacted, AB 2366 would extend this protection to victims of sexual harassment. The bill would also add protections for employees who are family members of the victims of domestic violence, sexual assault, stalking, or sexual harassment. However, the bill also clarifies that for the purposes of these sections, “employer” means “any person employing another under any appointment or contract of hire and includes the state, any political subdivision of the state, and the Legislature.”
AB 2778 (Carrillo). Public Safety Officers Procedural Bill of Rights Act
Act to Amend Government Code Section 3304
Existing California law requires employers to adhere to certain procedures and due process before any punitive action can be taken against a public safety officer.
If enacted, AB 2778 would specify that a public agency should consider education-based alternatives to punitive action against a public safety officer when appropriate.
AB 2680 (Jones-Sawyer). Uniform Conviction History Form
Act to Add Labor Code Section 432.9
Existing California law prohibits an employer from seeking or considering the conviction history of an applicant until after that applicant has received a conditional offer of employment.
If enacted, AB 2680 would require the Department of Justice to adopt a standard form for use by an employer, whether private or public, seeking the consent of an applicant for employment to conduct a conviction history background check by the department. The bill would require employers to use the adopted standard form when seeking the consent of an applicant to conduct a conviction history background check. The bill would also provide that a violation of its provisions would not be subject to the misdemeanor provision.
AB 2841 (Gonzales Fletcher). Paid Sick Leave
Act to Amends Labor Code Section 246
Existing California law requires that employers provide employees who work in California for 30 or more days after starting their employment with paid sick days for certain purposes, to be accrued at a rate of no less than one hour for every 30 hours worked, and to be available for use beginning on the 90th day of employment. Existing law allows employers to use a different accrual method other than providing one hour for every 30 hours worked, so long as the employee receives no less than 24 hours or 3 days of paid sick leave by the completion of their 120th calendar day of employment. Existing law also allows provides that employers have no obligation to allow an employee’s total accrual of paid sick leave to exceed 48 hours or 6 days.
AB 2841 would change the accrual and cap requirements. If enacted, employers must provide employees no less than 40 hours or 5 days of paid sick leave by the completion of the 200th calendar day of employment. The bill would also provide that an employer is under no obligation to allow an employee’s total accrual of paid sick leave to exceed 80 hours or 10 days.
SB 820 (Leyva). Confidential Sexual Harassment Settlements
Act to Add Civil Procedure Code Section 1001
If enacted, SB 820 would prohibit provisions in settlement agreements that prevent the disclosure of factual information relating to a legal action for sexual harassment, sexual assault, or harassment or discrimination based on sex. SB 820 currently provides for an exception to the prohibition when the provision preventing disclosure is included at the request of the claimant. However, that provision is not applicable if a party to the agreement is a government agency or public official.
SB 1038 (Leyva). Personal Liability for Retaliation
Act to Amend Government Code Section 12940
If enacted, SB 1038 would impose personal liability on an employee for unlawfully retaliating against an individual in violation of the FEHA.
SB 1343 (Mitchell). Sexual Harassment Training
Act to Amend Government Code Section 12950 and Section 12950.1
Existing California law requires private employers with 50 or more employees and all public employers to provide at least two hours of prescribed training and education regarding sexual harassment to supervisory employees within six months of their assumption of position and once every two years.
If enacted, SB 1343 would require all private employers with five or more employees and all public employers to provide at least two hours of sexual harassment training to all employees by January 1, 2020 and once every two years thereafter. The bill would also require the Department of Fair Employment and Housing to develop a two-hour video training course that is available for download or streaming on the department’s website, along with updates to existing information posters, fact sheets, and videos regarding sexual harassment. Employers would be able to adopt their own training programs or utilize the department’s training course to satisfy the requirements.
Managing Volunteer Risks
By Alex Mellor, Risk Manager
With budget challenges and public staffing shortfalls across the state, California JPIA members are increasingly looking to volunteers for helping to fill in the gaps. Volunteers play a critical role in our member communities, using their valuable time and skills to enable various community service and recreation programs to happen. With this unique service comes various risks that can easily be managed with sound volunteer management practices. With the help of your regional Risk Manager, the following considerations should be taken to help protect you while keeping these vital programs moving forward.
- Pass a resolution to extend workers’ compensation coverage for all volunteers. The Authority has long maintained that volunteer injuries are better controlled, and volunteers are better cared for, within the state’s statutory workers’ compensation system.
- Develop a formal volunteer management program to guide the agency on a daily basis. The program should include, among other items:
- Guidelines for volunteer selection and assignment
- Orientation procedures that include specific job requirements and ongoing training needs
- Waiver language and details about what to do in the event of an injury
- Supervision and critical details involving daily assignments and management
- Ensure volunteer waiver language is reviewed by your regional Risk Manager. Understanding the risks associated with each position within the agency is critical to determine the ability to perform those essential functions. Invite your risk manager to view community programs that involve volunteers.
- Conduct background checks on volunteers that will be working in safety sensitive positions or with vulnerable populations such as the elderly or minors. Consideration should be given to checking those that will be working closely with organizational finances, including handling agency cash or certain agency-owned assets.
- If the volunteer will be driving on behalf of the agency, include the individual in the agency’s driver training and assessment program. This includes enrollment into the agency’s DMV Pull Notice Program, and requiring certain documentation, such as an active drivers license and motor vehicle records reports.
- Factor volunteers into the agency’s harassment and discrimination policies. Volunteers have been allowed to sue organizations under federal anti-discrimination and anti-harassment laws typically used to protect employees. Organizations can also come under fire should a volunteer mistreat a customer or create a hostile work environment.
- Remember to include your volunteers in the agency’s ongoing training program, including employment practices and safety training as needed.
- Finally, remember to accurately report your agency’s volunteers on the California JPIA’s annual Underwriting Report.
The California JPIA recognizes the importance of volunteers for our member agencies. For assistance in managing this risk, contact your regional Risk Manager.
Heat Illness Prevention
By Maria Galvan, Risk Manager
With the summer months approaching, it’s a good time to remind supervisors that work outdoors and employees about the importance of following your agency’s heat illness prevention policy.
California employers are required to develop and implement written procedures for complying with the Cal/OSHA Heat Illness Prevention Standard. Heat illness prevention elements include: access to water, access to shade, acclimatization, high heat procedures, employee and supervisor training, and emergency response. While it has been over three years since amendments to the Cal/OSHA heat illness prevention regulation went into effect in 2015, Guidance for Employers and Employees on the Requirements, should be reviewed regularly.
Effective supervisor and employee training on the different types of heat illness, the common signs and symptoms of heat illness, and appropriate first aid and/or emergency responses to the different types of heat illness, and in addition, that heat illness may progress quickly from mild symptoms and signs to serious and life-threatening illness, is just one of the topics that must be covered in heat illness prevention training. Following is an overview of heat illnesses and treatment from the Department of Industrial Relations-Worker Occupational Safety and Health Training and Education Program:
- Heat Rash. Areas of the skin itch intensely and often feel prickly and swollen due to overheating. Sweat glands get plugged due to too much heat, humidity, and sweat.Treatment: Keep skin clean and dry, rest in a cool area, drink water, and change clothes frequently to stay dry.
- Heat Cramps. Painful muscle cramps, usually in the legs or near the stomach (abdomen), are caused by losing too much salt through sweating. This is a warning that more serious heat illness can develop.Treatment: Take rest breaks in a cooler environment, drink water, remove any PPE and loosen tightfitting clothing, and if possible, have the employee lie down.
- Heat Exhaustion. When fluids are not replaced, excessive loss of water and salt occurs through sweating. The person may become tired, weak and dizzy and have damp or clammy skin. This is a serious condition.Treatment: Have the employee rest in a cool area and drink water if he or she is not nauseous. If possible, have employee lie down with knees raised, loosen the employee’s clothing, seek medical aid, and notify your supervisor.
- Heat Stroke. This is a life-threatening condition in which the body’s core temperature rises above 105˚F (41˚C) and vital functions begin to break down, including the employee’s mental functions. Without immediate medical help, heat stroke may result in permanent brain damage or death.Treatment: This is a medical emergency. Seek immediate medical assistance. Move the employee to a cool area, loosen clothing; put a cool, wet cloth under the person’s armpits and on the groin; and use a fan to create air movement. Avoid extreme cold because the body can go into shock. Do not take the person to the hospital in a hot vehicle. Call 911 for an ambulance.
It is important to recognize the symptoms of heat illness during its early stages to avoid more serious illnesses. Not all of the following signs and symptoms may be present or occur in any particular order. Individual employees may react differently to excessive heat:
- Be aware: sweating profusely, tiredness, skin rashes, feeling thirsty.
- Caution-notify supervisor: nausea, dizziness, headache, irritability.
- Danger-call 911: confusion, convulsions, vomiting, loss of coordination, fainting, pale, clammy skin, or dry, red, hot skin
Emergency medical response (911) should be contacted if:
- An employee is showing symptoms of possible heat illness and if a first aid/CPR trained person is not available.
- An employee is showing symptoms of possible heat exhaustion (such as dizziness or pale, clammy skin) or heat stroke (convulsions, seizures and mental confusion).
- An employee does not improve with cooling and hydration, or if changes in mental state are observed.
Employees should remember to notify their supervisor when identifying symptoms of heat illness, when calling 911 use a landline if possible, make sure to provide medical emergency personnel with the correct address and directions to locate the ill employee at the worksite or facility, and have another employee stay with the ill employee while another calls for help. The ill employee should be kept cool and comfortable once emergency service responders have been called. The goal is to reduce the progression to more serious illness, which can be rapid and include symptoms such as loss of consciousness, seizures and mental confusion.
On May 8, 2018, Cal/OSHA issued a high heat advisory and urged all employers with outdoor workers to prevent heat illness as the weather warmed up in parts of Southern California. Temperatures in San Bernardino, Palm Springs, Indio, and El Centro were expected to reach over 100 degrees the week of the news release.
In 2017, Cal/OSHA issued over 2,000 heat illness standard violations. Information on Appealing a Cal/OSHA Citation and Notification of Penalty can be found in the March 2016 Authority Newsletter. Members are advised to review their heat illness prevention policies and prepare in advance for the warmer days and summer season. A heat illness prevention policy template can be found the California JPIA website, under Resources and Documents. The Cal/OSHA-DIR website also has several heat illness prevention resources. A resource from the Water.Rest.Shade campaign includes a Heat Safety training kit to help train employees in heat illness prevention.
Heat illness hazards are not limited to employees that work outdoors. In October 2016, Governor Brown signed and approved Senate Bill 1167 which went into effect on January 1, 2017. The law directed Cal/OSHA to draft and propose heat illness and injury prevention standards for indoor workplaces by January 1, 2019. Cal/OSHA has held several advisory meetings on Heat Illness Prevention in Indoor Places of Employment. Currently, comments are being accepted on a revised draft standard dated May 16, 2018. Interested parties can submit comments on the revised draft by June 7, 2018. Information on the advisory meetings and background information on indoor heat illness can be found on the Cal/OSHA-Department of Industrial Relations website. While indoor heat illness prevention standards have yet to be finalized and implemented, employers are advised to assess their indoor environments for potential heat illness hazards. If you have any questions, contact your assigned Risk Manager.
The Court Report
Ninth Circuit: Officer Who Shot Fleeing Man Entitled to Qualified Immunity
(Reprinted by the Metropolitan News Enterprise, May 21, 2018)
Visiting Jurist Dissents, Says Judge Hatter Decided Jury Questions
The Ninth U.S. Circuit Court of Appeals on Friday affirmed a summary judgment in favor of a Riverside police officer who shot the plaintiff three times while chasing him on foot, causing serious injuries.
The majority of a three-judge panel, in an opinion by Circuit Judge Consuelo M. Callahan, affirmed the decision by Senior District Judge Terry Hatter to grant qualified immunity to Riverside Police Officer Silvio Macias. District Judge Robert W. Pratt of the Southern District of Iowa, sitting by designation, dissented, arguing that the defendant’s right to have facts decided by a jury was abridged.
Macias and his partner were on patrol on Dec. 22, 2011 when they spotted a car with illegally tinted glass and attempted to stop it; the car sped away, but suddenly stopped in a shopping center parking lot and the passenger, Michael Easley, then 22, alighted from it and ran; Macias chased him; his partner shouted that the man had a gun; Macias saw it, and fired at Easley. He shot him within a few seconds after Easley tossed the gun away.
In his June l, 2016 order, Hatter granted summary judgment, as to Easley’s federal civil rights cause of action, based on qualified immunity, and declined to retain jurisdiction over state causes of action. He wrote:
“Here, given the facts and circumstances at the time of the shooting and that Easley admitted that he possessed a gun, pulled it out of his pants while he was actively evading Officer Macias, and the profile of the gun was visible to Officer Macias, a reasonable officer confronting the scene could reasonably believe that Easley posed a serious and deadly threat to Officer Macias when Easley removed the gun from his pants and lifted the gun to a point where Officer Macias could see the gun’s profile during the foot pursuit….
“It is irrelevant whether Officer Macias saw the profile of the gun while Easley was throwing it away or while turning to point the gun at Officer Macias. Under either scenario, Officer Macias acted reasonably given the very short time passage of a few seconds. Officer Macias did not shoot Easley until he perceived Easley as a threat, which is when Officer Macias saw the profile of the gun on the right side of Easley’s body.”
Circuit Judge Agrees
Agreeing, Callahan said:
Based on these undisputed facts, a reasonable officer may have reasonably feared that Easley had a gun and was turning to shoot him. Thus, viewing the critical evidence in the light most favorable to Easley, we conclude that Macias is entitled to qualified immunity.”
She also said that a district judge has the prerogative to determine the issue of qualified immunity sua sponte, as Hatter did.
Judge Jacqueline H. Nguyen Joined in Callahan’s Opinion
Pratt wrote a 20-page dissent. Summary judgment should not have been granted, he asserted, explaining:
“In this case, I perceive genuine, material factual disputes in the record that the district court and the majority have either improperly purported to resolve or improperly ignored. In doing so, they have inadvertently encroached upon the constitutional province of the jury and upon Easley’s Seventh Amendment rights.”
One of the factual matters her thought a jury should resolve was how much time elapsed between Easley discarding his weapon and Macias pulling the trigger. On direct examination, Easley estimated it was “three to four seconds,” but on cross examination he said it was “two or three” seconds.
Callahan made reference to a lapse of “two to four seconds.”
“Four seconds, two seconds, and zero seconds are not constitutionally equivalent in these circumstances; we cannot so easily dismiss the distinction by statins that the event occurred “within two to four seconds.”
He went on to say that the question of qualified immunity should have been left to the jury. Pratt reasoned:
“[I]t is possible for a jury to conclude on this record that Macias first reasonably suspected Easley was armed, then clearly observed Easley divest himself of the suspected firearm, and finally decided—after sufficient time to recognize Easley was unarmed and not dangerous—to fire upon him.
“The district court avoided this conclusion in part by deciding that the timing of this event is immaterial for summary-judgment purposes. I disagree. It is, for example, self-evident, that if an officer observes a suspect disarm himself and then pursues the suspect on foot away from the discarded weapon for thirty seconds, he may not then decide to fire upon the suspect and claim in good faith that he was in fear of the suspect using the discarded weapon to hurt him. Likewise, it is clear that if an officer observes a suspect remove a firearm from his pocket toward the officer and the officer shoots the suspect before the firearm leaves the suspect’s hands, the officer’s fear was reasonable even if the suspect later claims it was his intent to discard the weapon. This case, then, presents a complex line-drawing exercise: at what point between these two extremes does a fear of immediate harm become unreasonable?”
During oral argument on Feb. 6, the visiting jurist drew attention to Hatter having conducted a two-day hearing, with testimony, on qualified immunity, saying he had never encountered such a procedure, and queried whether it was normal in this district. Alana H. Rotter of Greines Martin Stein & Richland LLP, arguing for the City of Riverside, responded:
“This was probably not your every day procedure.”
“I would agree with you. I don’t think I’ve seen it before.”
The case is Easley v. City of Riverside, 16-55941.
The Court Report
Ninth Circuit: Action by Homeless Man Over Seizure of Healthy-Looking Birds May Proceed
(Reprinted from the Metropolitan News Enterprise, May 2, 2018)
The Ninth U.S. Circuit Court of Appeals yesterday reversed summary judgment in favor of the City of Los Angeles in connection with the warrantless seizure from a homeless man of pet birds that appeared healthy, while affirming summary judgment with reference to birds that were visibly sick.
Animal control officers seized 20 birds—18 pigeons, one crow and a seagull—with all of the pigeons subsequently being euthanized. The birds were kept by plaintiff Martino Recchia in cramped spaces in boxes and cages on a sidewalk.
The city contended that exigent circumstances justified the warrantless seizure.
District Judge Dean D. Pregerson granted summary judgment as to Recchia’s claims both on Fourteenth Amendment due process grounds and under the Fourth Amendment’s ban on unreasonable searches and seizures.
Writing for a three-judge panel, Circuit Judge Ronald M. Gould agreed that there was no affront to due process, but declared:
“If all the birds maintained by Recchia had been unhealthy or sick in appearance, we think their entire seizure would pose no significant constitutional issue, and clearly would not offend the Fourth Amendment because of the scope of the emergency exception to the warrant requirement and the need to seize the birds to end then suffering and prevent transmission of illness. However, the crux of the problem here is that not all of the birds appeared to be sick, in fact eight birds appeared outwardly healthy. And so we are confronted with a factual issue about whether the exigent circumstances exception applies as to the seizure of the healthy-looking birds kept by Recchia in this case.”
Gould said there was substantial evidence suggesting that the apparently healthy birds should have been of no concern. On the other hand, he noted, there was the opinion of a city veterinarian that the pigeons that appeared healthy could have been carrying disease.
“Because of these competing lines of evidence, we hold that there is a genuine factual dispute about whether the healthy-looking birds posed any meaningful risk to other buds or humans at the time they were seized,” Gould wrote “Therefore, although we affirm the dismissal in part as to the seizure of the birds that appeared sick, we vacate and remand in part as to the seizure of any birds that were wholly healthy in outward appearance.”
“On remand, we instruct the district court to consider in the first instance whether the Officers are entitled to qualified immunity for any potential constitutional violation because it was not ‘clearly established’ at the time of the seizure that the warrantless seizure of the birds could be a violation of Recchia’s constitutional rights.”
The case is Recchia v. Los Angeles Department of Animal Services, No. 13-57002.
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