California Special District by California Special Districts Association

CA SPECIAL

DISTRICT Publication of the California Special Districts Association

Volume 11, Issue 4, July - August 2016

Pre-conference issue

Interviews with CSDA Annual Conference keynote speakers Ross Shafer and Kai Kight

Offering Creative Legal Solutions for Special Districts for More Than 70 Years

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Volume 11, Issue 4 • July - August 2016

Contents

CSDA Annual Conference speakers

How to stay relevant Interview with Ross Shafer

Composing your world Interview with Kai Kight

4 President’s Message Education in and out of the training rooms 5 Professional Development Special District Board Secretary/ Clerk Conference keynote speaker announced; Professional Development calendar 6 CSDA News Make your Annual Conference plans now! 8 Grassroots Action Update Take action on major issues

Is it time to revisit your district’s communications plan?

Strategies for dealing with a toxic workplace

Community Connections

12 In Brief Free access to The New York Times; Healthcare district graduates first class of doctors; Grant received for fire risk reduction; Electric lawn mower cash incentive; CPR robot saving lives; Innovative project receives go-ahead; Library debuts conservation garden 28 Legal Brief Drones in your district: Technology, existing law, and privacy concerns 30 Managing Risk Primary assumption of risk

Solutions & Innovations

32 Money Matters Special district executive recruitment, evaluation, and compensation 36 What’s So Special Pacific on tap San Diego County Water Authority

Ask the Experts - pg. 10

What are the three key things special districts need to know about complying with Senate Bill 272?

Printed on recycled paper.

California Special District – July-August 2016

CA SPECIAL

Officers William Nelson, President Orange County Cemetery District

president’s message

Vincent Ferrante, Vice President Moss Landing Harbor District Arlene Schafer, Secretary Costa Mesa Sanitary District Greg Orsini, Treasurer McKinleyville Community Services District Noelle Mattock, Past President El Dorado Hills Community Services District

Members of the Board Joel Bauer, West Side Cemetery District Stanley Caldwell, Mt. View Sanitary District Ralph Emerson, Garberville Sanitary District Peter Kampa, Saddle Creek Community Services District Jo MacKenzie, Vista Irrigation District Elaine Magner, Pleasant Valley Recreation & Park District Shane McAffee, Greater Vallejo Recreation District Ginger Root, Country Club Sanitary District Timothy Ruiz, P.E., East Niles Community Services District Fred Ryness, Burney Water District Sherry Sterrett, Pleasant Hill Recreation and Park District Kathy Tiegs, Cucamonga Valley Water District

CSDA Staff Neil McCormick, Chief Executive Officer Megan Hemming, Professional Development Director Cathrine Lemaire, Member Services Director Kyle Packham, Advocacy & Public Affairs Director Todd Winslow, Publications Director Rick Wood, Finance & Administration Director Emily Cha, Staff Assistant Nick Clair, Legislative Analyst Bernice Creager, Public Affairs Specialist Marcus Detwiler, Legislative Assistant Dillon Gibbons, Legislative Representative Christina Lokke, Senior Legislative Representative Charlotte Lowe, Executive Assistant Jimmy MacDonald, Legislative Representative Anna Palmer, Member Services Specialist Chris Palmer, Public Affairs Field Coordinator Alexandra Santos, Receptionist Lindsey Spaletta, Professional Development Assistant Cassandra Strawn, Member Services Specialist Dane Wadlé, Public Affairs Field Coordinator James Wilfong, Senior Designer Nicole Zajic, Editor For editorial inquiries, contact Nicole Zajic at 877.924.2732 or nicolez@csda.net. For advertising inquiries, contact Diana Granger, Granger Marketing Works, at (530) 642-0111 or granger@cwo.com. 1112 I Street, Suite 200 Sacramento, CA 95814 t: 916.442.7887 f: 916.442.7889 toll-free: 877.924.2732 www.csda.net

Education in and out of the training rooms

Welcome

William Nelson

to the Annual Conference preview issue of California Special District. In this issue, we’ve provided articles and interviews to demonstrate the tip of the iceberg of what will be offered at this year’s conference, October 10-13 in San Diego. By now, you’ve probably received the full conference brochure, and you can view the complete conference schedule at conference.csda.net.

sound all too familiar to each other. In those ways, sharing experiences – the good and the bad – can help us all to see challenges and opportunities in a new light.

I’ve attended the Annual Conference for the past ten years. At each conference, I immerse myself in the continuing education opportunities. The sessions and keynotes continually help me to make more informed decisions for the citizens served by my district. While the ideas I’ve gained from the conferences over the years are too many to list here, one that stands out the most is from one of the earliest conferences I’ve attended. This particular year, I attended a session on how districts should diversify investments. Through what I learned at this session, the board and staff developed a diversified investment strategy that has earned over $1 million more in investment income than our previous strategy. In the literal and figurative sense, what I learned at that conference is still paying off in dividends.

Invest in yourself and your district by attending the Annual Conference. Meet and mingle with the people who speak your language and face the same challenges day to day as you do. You will come away with the experiences of real lessons learned, dozens of ideas, and innovative solutions that you and your team can immediately use.

Some of my most important lessons have been learned outside of the training rooms. The opportunities to network with other district personnel have allowed me to learn from each person’s shared insights. Sometimes we face our own unique challenges at our districts, but sometimes the challenges we face can

A proud California Special Districts Alliance partner

And I would be remiss if I didn’t mention the exhibit hall. There are myriad ways to learn and grow through the exhibit hall, where industry professionals will be available to offer solutions to new and existing challenges.

October 10-13 • San Diego

Highlight

September September 7

WORKSHOP

The Who, What, Where, When, Why, and How of Public Engagement, Sacramento

September 21

WORKSHOP

CEQA 101 and 201, Sacramento

October October 10-13

Board Secretary/Clerk Conference in Monterey

Special District Board Secretary/Clerk Conference: Keynote Speaker Announced! What would your day look like if you took the advice of all your nerdy friends and implemented the tech tools and apps they recommend to make your life easier? This year’s Board Secretary/ Clerk Conference in Monterey, will be held November 14 – 16, where everyone’s “Nerdy Best Friend,” Beth Z. will present a fast-moving, laugh-filled session that takes you hour by hour through a day in the life of a tech-savvy district clerk or secretary. You’ll learn how a professional nerd solves a security crisis before 10:00 a.m., learns to make more of a lunch hour with a set of virtual hands, saves money on software before the staff meeting, and brings the team together online before the day is done. Register online now at www.csda.net.

CONFERENCE

Annual Conference & Exhibitor Showcase, San Diego

November Nov. 8

WEBINAR

Ethics AB 1234 Compliance Training

Nov. 14-16

CONFERENCE

Board Secretary/Clerk Conference and Certificate Program, Seaside

Bythe

Numb3rs

44 breakout session options at the CSDA Annual Conference and Exhibitor Showcase.

California Special District – July-August 2016

CSDA NEWS Make Your Annual Conference Plans Now! Join Us for These Pre-Conference Program Events Whether you are looking for a class to advance your leadership or communications skills, an educational tour of ground-breaking facilities with the latest technology, or great networking opportunities, the CSDA Annual Conference and Exhibitor Showcase has you covered! Be sure to register now for one of these optional pre-conference events, scheduled for Monday, October 10. Pre-registration/payment is required. Space is limited!

Special District Leadership Academy Module 1: Governance Foundations

Earn SDRMA CIPs

As the core curriculum of CSDA’s Special District Leadership Academy, this workshop serves as the “foundation” for the series on effective governance of special districts. $225 CSDA Member, $340 Non-member

CSDA Annual Golf Tournament Coronado Municipal Golf Course Join special district elected officials, staff, and business affiliates at this optional event. Great golf skills are not necessary! $95 includes golf with cart, lunch, and prizes!

Pre-Conference Tour of the Carlsbad Desalination Plant Communication Strategies for Board Members and General Managers Workshop

presented by BHI Management Consulting Communication is the fluid of any organization. This workshop is critical for those districts that know they have organizational challenges and those that know enough to believe that good communication is an absolute best practice. $150 CSDA Member, $225 Non-member

Special District Administrator (SDA) Exam Administered by the Special District Leadership Foundation

After three years of construction, the San Diego County Water Authority and Poseidon Water dedicated the Claude “Bud” Lewis Carlsbad Desalination Plant on Dec. 14, 2015. The plant is producing approximately 50 million gallons per day of locally controlled water for San Diego County, helping to minimize the region’s vulnerability to statewide drought conditions. The plant meets about seven to 10 percent of the region’s water demand – about one third of all the water generated in the county. Learn more about the plant on page 36. $35 per person includes light lunch, tour, and transportation to/from the hotel. Limited to 45 attendees!

San Diego • Oct. 10-13

set sail 6

CSDA Membership Delivers More. CSDA is proud of our ability to provide strong, respected representation of special districts at the state capitol. We’re happy to bring quality education programs to your board members and staff. And we’re delighted to be the association you trust to get timely, valuable information to your inbox as well as to your mailbox. But did you know your membership in CSDA can deliver even more to keep your agency running efficiently and effectively? We are constantly on the lookout to identify and partner with businesses that have a reputation for top-quality services, products and customer support. These businesses have agreed to offer their services tailored to CSDA members. CSDA’s Value-Added Benefits deliver cost-effective solutions to meet your agency’s needs now and in the future. It’s just one more way CSDA membership delivers more. Call Member Services at 877.924.2732 for information on any of these services:

Bank of the West – CSDA branded purchasing card program designed for special districts California CAD Solutions – Digital mapping solutions CalTRUST – Pooled investment accounts eCivis – Grant research and management system Employee Relations – Employment background investigations, drug testing and employee hotline services PARS – Prefunding Solutions for OPEB and Pension Liability Streamline – Website design system U.S. Communities -– Discounted purchasing forum for office supplies, technology products and more Utility Cost Management - Utility bill audits

CSDA members have access to exclusive programs delivered by our California Special Districts Alliance Partners: • CSDA Finance Corporation – visit www.csdafinance.net for tax-exempt municipal financing • Special District Risk Management Authority (SDRMA) – visit www.sdrma.org for cost-effective Workers’ Compensation, Property & Liability and Health Coverages

California Special District – July-August 2016

update

Special district leaders from throughout California gathered in Sacramento for the 2016 Special Districts Legislative Days conference. The two-day event kicked off Tuesday, May 17 at the Sacramento Convention Center with a panel featuring chair of the Senate Governance and Finance Committee, Senator Robert Hertzberg; chair of the Assembly Committee on Local Government, Assembly Member Susan Talamantes Eggman; and vice chair of the Assembly Rules Committee and former president of the Walnut Valley Water District, Assembly Member Ling Ling Chang. The day followed with office visits at the Capitol where attendees advocated in support of CSDA’s sponsored bills and discussed the unintended consequences of Senate Bill 885 by Senator Lois Wolk and the detrimental effects this legislative measure would impose on special districts and local agencies throughout the state. Assembly Member Richard Gordon was presented with the Legislator of the Year award for his demonstrated understanding, hard work, and support of special districts. California Board of Equalization Chairwoman, Fiona Ma addressed attendees as this year’s keynote speaker and answered questions ranging from tax assessments to the proposed road tax.

All in all, the 2016 Legislative Days was a success. Many attendees commented on the beneficial networking opportunities that could lead to partnerships between districts. CSDA Board Member Stan Caldwell, of the Mountain View Sanitary District, described the conference as “the best ever.” We invite all CSDA members to save the date for our 2017 Special Districts Legislative Days conference, happening May 16 – 17 in Sacramento, and to continue joining our advocacy efforts. Stay up to date on our advocacy efforts by signing up for CSDA’s Blog. This webinar–free for CSDA Members–will feature a legislative briefing on important measures and will provide an opportunity to ask questions and additional information from CSDA’s advocacy team.

Take Action Learn about important measures making their way through the Capitol by registering for the August 11 Legislative Round-Up webinar and receive important updates by signing up for CSDA’s Blog. Visit www.csda.net for additional details and information. Seasons of Advocacy Make every day Special Districts Legislative Days by joining the CSDA Advocacy Team’s efforts year round. Summer • Meet with each of your local legislators in their district offices. • Respond to CSDA “Calls to Action” on priority legislation.

Your Community. Your Services. Your District! We are happy to announce the launch of our new public outreach campaign, Districts Make the Difference.

This campaign is centered on the concept that special districts go beyond providing important services to their communities. They make a difference in the lives of their residents and help our state thrive. The goal is to bridge the gap between special districts and the essential services that millions of Californians value. The first step is to visit DistrictsMaketheDifference.org. This new website features a simple-to-use toolkit filled with public awareness videos, web banners, posters, factsheets, and other materials that can be easily downloaded.

Follow, like, subscribe, share!

MAKE THE

DistrictsMaketheDifference.org DistrictsMaketheDifference.org

Ask theExperts What are the three key things special districts need to know about complying with Senate Bill 272?

Senate Bill 272 has created confusion for a number of special districts as they have looked to comply with the new law by the July 1 deadline. The law requires all local agencies, except schools, to create a catalog of their software enterprise systems and post the catalog on their website, if they have one, or make it available to the public if they request it. Based on the questions I’ve received since SB 272 was introduced, there are three key things I believe every special district should know about complying with the new law.

Do you have a question for any of our CSDA experts? If so, send your question to Nicole Zajic, editor, at nicolez@csda.net.

First, districts should understand the purpose of the law. SB 272 was introduced in an effort to make California local government data more accessible to the public. Senator Hertzberg stated that “members of the public too often are not aware of what data local governments collect, the format the data is in, or the location where the data is stored. Similarly, a lack of information about local agencies’ data systems may impede efforts among local agencies to collaborate on projects to standardize and share public data sets.” Second, it is important that districts understand that all special districts need to comply with the law, no matter the size or complexity of the district, or whether they have an internet website or not. 10

Finally, the most important thing for districts to realize is that this law was placed in the Public Records Act. When a district is questioning whether or not to list a particular software system in their catalog, a district should ask themselves: If a member of the public had requested information about that particular software system, would they provide it to them? Unless listing the software system poses a security risk to the district or district systems, the answer should be yes, and it should be listed in the catalog. Districts shouldn’t try to overthink this new law. The simplest way to create your catalog is to write down all your software systems, then evaluate each one to see if it meets the requirements to be listed on the catalog. Keep notes on each system, whether you end up listing it or not (this will save you time when you update your catalog in future years). After each system has been evaluated, create a simple catalog providing the basic information for each system listed and post the catalog on your website, if you have one. If you have any questions when your creating your catalog feel free to contact Dillon Gibbons at dillong@csda.net. Legislative Representative Dillon Gibbons is part of CSDA’s Advocacy and Public Affairs team.

MOVERS & SHAKERS

movers and shakers Does your district have an individual recently appointed as general manager or a top staff position? Have you recently elected a new board president? Have any district personnel been appointed to other community boards or positions? Email your district’s movers and shakers to Nicole Zajic, editor, at nicolez@csda.net and we will include them in our next issue!

Santa Clara Valley Open Space Authority received the Merit Award from the California Trails and Greenways Conference. The award honors the authority’s hard work, unique partnerships, and social responsibility that contributed to acquiring the newly-protected Coyote Ridge Open Space Preserve.

Barstow Fire Protection District names Capt. Jamie Williams as interim fire chief. Williams fills in for former chief Rich Ross, who retired.

Nipomo Community Services District recently received three prestigious awards. The American Society of Civil Engineers, San Luis Obispo Branch, presented the Nipomo Community Services District with Water Project of the Year and overall Project of the Year for its Supplemental Water Project. The Government Finance Officers Association notified Nipomo CSD that the district’s annual financial report (audit) for 2014-2015 qualified for the association’s Achievement of Excellence in Financial Reporting for a third year.

Napa Sanitation District received two awards at the California Water Environment Association’s statewide conference. NSD was recognized as Medium Sized Wastewater Treatment Plant of the Year and Supervisor of the Year, which went to Collection System Department supervisor Nick Becker.

Vallecitos Water District General Manager Dennis Lamb has retired after more than 30 years of service with the district. Sugar Pine Fire Protection District Vice President Michelle “Micki” Rucker has been appointed to the 29th District Agricultural Association, Mother Lode Fair Board of Directors.

Legal Services Tailored To Unique Needs of Special Districts

The Carlsbad Desalination Project was recognized for “stretching taxpayer dollars through cooperation between the public and private sectors” by the San Diego County Taxpayers Association at the organization’s 21st Annual Golden Watchdog & Fleece Awards. Poseidon Water and the San Diego County Water Authority received the Grand Golden Watchdog for the project and the unique collaboration that made it possible. Kurt Hahn, interim executive director of the Northern California Healthcare Authority attended the Republican National Convention in Cleveland, Ohio as a delegate from California. The Association of California Healthcare Districts gave Dennis W. Chiu, of the El Camino Healthcare District Board, its Trustee of the Year award. Chiu was recognized for his dedication and leadership qualities, particularly in the areas of strategy, finance, and collaboration.

Construction Crisis Management Eminent Domain Environmental Law Finance First Amendment Labor and Employment Land Use

Public Contracts Special Districts Law Water Law Workplace Investigations

California Special District – July-August 2016

In Brief Free Access to The New York Times Residents in Santa Clara County Library District’s service area may now access The New York Times online at no charge. “We are thrilled to be the first local library to add The New York Times to our list of free online subscriptions available from our virtual library website,” says Nancy Howe, county librarian. “Now, in addition to e-magazines and streaming movie videos and classic TV programs, people can access their own copy of The New York Times daily, anytime, anywhere.” An annual subscription to the paper typically costs $455. In addition to accessing The New York Times, library patrons can also access local news publications through library membership.

Health Care District Graduates First Class of Doctors Kaweah Delta Health Care District graduated its first class of physicians in June. Over 40 percent of the class has chosen to stay and practice in the community. “When we set out to become a teaching hospital, one important goal was to improve this community’s access to health care by growing the next generation of physicians,” says District CEO Lindsay Mann. Now, the district is able to welcome many new doctors to the area, thanks to the teaching it has provided. “We have been taught to provide quality care and we see the difference we are making to patients,” says one graduate, Dr. Marwan Zoghbi. “This community makes you feel very appreciated. It’s thirsty for quality, customized, and non-rushed personal care.” According to another graduate, Dr. Kamel Kamel, “The choice of where to practice medicine after residency was clear. I am staying here, first, because I love Visalia, not just me, but my family as well. Second I would love to pay back the community that taught me, accepted me, and has given me the opportunity to learn and grow.” The district is the only trauma center between Fresno and Bakersfield and offers a comprehensive scope of services, including a pediatric hospitalist program and a nationally recognized orthopedic program.

Sources: East Bay Times, Hanford Sentinel, Los Altos Town Crier, Pasadena Independent, The Union, Visalia Times-Delta, West Valley Water District

CPR Robot Saving Lives Contra Costa County Fire District is now using a Physio-Control LUCAS 2 Chest Compression System (LUCAS 2) to assist in life saving efforts. The LUCAS 2 is a portable device with a small chest compressor that is designed to perform chest compressions on patients for as long as firefighters direct it to. The district researched national studies, which showed the device performed as well if not better than humans at performing CPR compressions, before purchasing the device. The LUCAS 2 performs this task and frees up firefighters to focus on potential other important matters at the scene when needed. “One of the things that we’ve found is that when people are doing CPR, then tend to be a little more tentative about what they’re doing,” says Fire Marshal Robert Marshall. “The machine helps to reduce that.” The district piloted the device with grant funds. Future devices will be purchased out of the district’s budget. “When we see a device that will not only increase the chances of saving lives, but prevent wear and tear on firefighters and rescue personnel, I think a device like this probably pays for itself over time,” according to district employee Dr. Peter Benson.

Got news? California Special District wants to hear about newsworthy people, projects, events and accomplishments in your district. To submit a news item for In Brief, contact Nicole Zajic at nicolez@csda.net or (877) 924-2732.

Electric Lawn Mower Cash Incentive

Grant Received for Fire Risk Reduction The Sierra Nevada Conservancy awarded Nevada Irrigation District with $250,700 in grant funds for a fuels reduction program to improve fire safety on district land at Scotts Flat Reservoir. The grant money will fund the third phase of an ongoing project to reduce the risk of catastrophic fire and to further regional efforts to construct a shaded fuels break around the reservoir. Excess trees, brush, and sprouting hardwoods will be removed from 82 acres of district land on the reservoir, and the district will work with the local community to provide backyard green waste chipping during active project work days, and to develop interpretive signs to inform the public about watershed health, wildfire, and district programs. “We are grateful for the Conservancy’s commitment to forest health, water supply protection, and community safety,” says District General Manager Rem Scherzinger. “This project is a significant step toward improving forested lands within the district, and we will use this opportunity to further refine forest treatment practices for future projects.”

San Joaquin Valley Air Pollution Control District is offering cash for residents to swap their gas-powered lawn mowers for electric ones. Through the program, the district will offer up to $250 or 50 percent off the cost of a zero-emissions electric mower. In order to receive the rebate, residents must purchase a qualifying electric mower, take their gas-powered mower to an authorized dismantler, and submit the required application and paperwork to the district. By swapping out a gas mower, harmful emissions equating to 40 late-model cars operating on the road simultaneously are reduced.

Library Debuts Conservation Garden Altadena Library District recently celebrated the opening of its Water Conservation Demonstration Garden. The garden features a Swale, which is a trench that follows the contour of the landscape to capture water and alleviate runoff; a Hugelkultur, a passive water collection technique with stacked logs covered in soil; and an infiltration pond, to collect water and allow for percolation. The garden serves as an example to residents of how to work to conserve water in their own homes, while doing so itself for the library district.

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California Special District – July-August 2016

How to stay relevant Interview with Ross Shafer Ross Shafer is the author of eight books on leadership, motivation, customer experience, and market relevance. He has also been an Emmy-winning television host for ABC, CBS, NBC, and the USA Networks. In addition to his full-time job as a keynote speaker, author, and consultant, Shafer publishes a weekly video blog called The Relevant Leaders Club. Shafer has studied in-depth what makes organizations relevant and how they can stay relevant. What is relevance? How can it be achieved? How can it be maintained? And how does this apply to the public services special districts provide? California Special District asked Shafer to explain all of these aspects and more. Tell us about your experience working in leadership positions.

Assembly Member Rich Gordon Ross Shafer

I was always a success-driven young man. As a college linebacker and Pop Warner football coach I was accustomed to a command and control leadership model. But after college I began a career as a serial entrepreneur and quickly realized that the command and control model was a recipe for employee turnover. Once I understood that the best organizations celebrate the different talents of its team members, revenues grew exponentially. I subsequently bought and sold two dozen businesses (manufacturing, lawn and garden service, retail pet, photography studio, t-shirt imprints, full service advertising agency, retail electronics, and became a managing partner in a 28-store young men’s clothing chain). I became a touring stand-up comedian and network TV host and producer, which led to seven television writing and production teams - ultimately winning 36 Emmys. I have also managed teams to write and produce 14 human resource training films. Since 1994, I have studied and written about companies who succeed, fail, and the reasons why – I have written eight books to date. Invariably, the humble leaders who are more “coach” than boss are the ones who have a better chance of sustaining an enterprise.

Special districts should constantly reprioritize goals and outcomes based upon the urgency expressed by its constituents. It’s a mistake to correct problems in chronological order; especially when your community feels differently about your listed priorities.

How do you define the term “relevance”? How important is it to stay relevant in the professional arena? Relevance is continuing to matter to your customers, constituents, patients, members, and stakeholders. The reason it is important to stay relevant is so that we can successfully adapt to the appropriate direction(s) we take our organizations. If a professional entity fails to adapt to buying habits and constituent mindsets, that entity will become irrelevant…and those people will not matter to constituents or their communities. The entity will either disappear or be absorbed by a more effective entity.

For public agencies, like special districts, how does relevance apply? Why is it important?

Can relevancy be determined? Yes, relevancy is always determined by your constituents. Are people happy with your work? Do they talk about you in the community? Positive or negative? What do they complain about? Do you hear the same complaints over time? If so, your constituents are disturbed that their needs are not being met.

Is there a way a special district can assess itself and determine how it’s doing? Special districts should constantly reprioritize goals and outcomes based upon the urgency expressed by its constituents. It’s a mistake to correct problems in chronological order; especially when your community feels differently about your listed priorities.

In some instances, constituents may not realize they are being served by a special district in their area. How can an organization remain relevant when this is the case? If your constituents don’t realize they are being served by a special district, that’s your fault. It is incumbent upon you to be able to clearly communicate and defend your Continued on page 16

You already know that we live in an ondemand society. And, since they (our constituents) judge their experiences and expectations by Amazon.com standards, they will not be satisfied with sluggishness. Being slow (to them) means complacency. Quick reaction speed translates to competence, caring, and, as a public entity, a valued agency. Constituents also believe that transparency equals trust. Trust makes your constituents feel good about how you spend their money.

Explain the difference between staying relevant and being current. Relevance is very different from “staying current.” Staying current is being aware of cultural change. But relevance is recognizing how culture flux affects your industry and then acting on that change.

IS IT TIME TO UPDATE YOUR PERSONNEL RULES? California’s labor and employment laws are changing every year. It is essential for special districts to continuously review and update their personnel handbooks to make sure that they are legally compliant. LCW’s Liebert Model Personnel Policy Portal (LMP3) allows to you to make the changes yourself, saving thousands of dollars in the process.

Visit LiebertLibrary.com/Timeline to check which policies you may be missing.

California Special District – July-August 2016

Interview with Ross Shafer [continued] value proposition story. In order to stand out and justify their costs, every private company must defend and differentiate themselves from a competitor. You, too, should be able to explain why your organization is different and valuable, and why it shouldn’t be “folded” into a general agency. So what is your special district saying? And more importantly, what is your special district doing that translates to public awareness?

What does it mean to think like a start-up? Every year I study 18 different industries and I honor the energy and enthusiasm of a startup. Legacy organizations often get bogged down with success, money, long-term relationships, and a lack of eagerness to innovate. A public agency (who gets their annual budget) can suffer from the same kind of complacency - right up until they are absorbed by a larger agency for efficiency sake.

How can special districts benefit from that type of thinking? I want to show you what you can learn from innovative thinking outside of your special district bubble. I realize that what keeps you up at night may be different from the private sector, but the demands of your constituents are very much the same. I want you to think about how you would operate if you were a brand new agency. Who would you hire? What talents would be essential? Where would you find innovation? What budget items could you cut to become more efficient? What would you buy to make you more relevant? How would you tell your story to the community? How could you become absolutely necessary to your community? These are the questions a start-up asks themselves every day.

Conference Highlight Keynote: Ross Schafer October 11 @ 9:00 – 10:45 A.m.

How to Stay Relevant

I want to show you what you can learn from innovative thinking outside of your special district bubble. I realize that what keeps you up at night may be different from the private sector, but the demands of your constituents are very much the same.

What can attendees of your keynote expect to learn about during your presentation? When you go home from my session you will think differently about your approach to talent management. You will behave differently toward the people and communities you serve. You will be able to assess whether you need to ramp up your relevance. And you will have specific tactics to defend your value as a special district.

Look for Ross Shafer’s new book at this year’s CSDA Annual Conference and Exhibitor Showcase.

Special District Leadership Foundation

Leadership Programs that Promote and Recognize Excellence in District Governance & Management 1112 I Street, Suite 200, Sacramento, CA 95814 • t: 916.231.2939 • www.sdlf.org

California Special District – July-August 2016

Composing your world Interview with Kai Kight Kai Kight has a diverse background that has been fueled by creating and making music. He is a classically trained violinist, who has performed all over the world. Kight is an advocate of creating one’s own music – whatever that means in your life. Innovating, creating, and making your own path are the ways to compose one’s own world. California Special District asked Kight to explain how he came to this philosophy in life and how attendees will benefit from learning this philosophy at the Annual Conference in October. Tell us about your musical background. What is your experience? I am a contemporary violinist and composer with a traditional classical background. I’ve had the opportunity to perform in places including the White House, the Great Wall of China, and have even performed behind Aretha Franklin. I create music that blends the classical world with a number of popular genres. With my work, I aim to reinvent what one would expect the solo acoustic violin to sound like.

You use music to inspire people in their own lives. How do you do this? How is music a metaphor for living one’s best life or for an organization to perform at its best? Music is a universal language that connects with people on an emotional level. It transcends the barriers of culture, language, and background. I use music as a vehicle to share a perspective on our human experience. I find that we tend to compartmentalize the diversity of our experiences as people. It is easy to think that music is different from business, or that business is different from our home lives. At the end of the day, we are one person with one brain, and the

To “play notes that have already been written in the past” means to simply follow the pre-approved path. When a performer, for example, learns a new piece of music that is handed to them, they know that the work has been done already.

overlapping between experiences is infinite. The process of leading a musical group is similar to leading a business team. The process of composing a piece of music is similar to writing a proposal. It’s all about finding the connections, and that’s what I love. It’s why I can take my violin and give a talk to NFL players. It’s why I can take my violin and give a talk to a German speaking audience in Switzerland. When you take the time to find the connections, the barriers between us drop, and we realize that we are all on a journey together.

What inspired you to expand your work from playing music professionally to also using music to inspire and motivate others? I have been a student of philosophy and the art of inspiration for many years, it just took me some time to recognize it. I have always gotten an enormous amount of energy from observing patterns in human behavior. For example, after violin lessons in middle school, I would take notes on all of the metaphors my teacher would use to inspire me. I loved music, but I knew there was always something more to it for me. Music was where I learned many important life lessons. I knew that I had to somehow combine my passions together into a career.

You’ve posed the question: “When it comes to your life, personally, in your community, or in your business, are you writing new music or are you playing notes that have been written in the past?” How do you recommend people begin creating their own music in life, so to speak? To “play notes that have already been written in the past” means to simply follow the pre-approved path. When a performer, for example, learns a new piece of music that is handed to them, they know that the work has been done already.

Continued on page 20

California Special District – July-August 2016

Interview with Kai Kight [continued] All they have to do is follow the linear path to learn the notes, and then they know they will be able to play something that sounds at least OK. We do the same thing in our lives, following the path that has already been guaranteed and created. It’s safe. However, two problems exist when we just play notes others have written. First, as communities and organizations, we end up repeating the same processes without properly progressing. Second, as individuals, we learn to continuously fight against our own intuition and creativity. There is a common notion that creativity is for the select, chosen few. However, as humans, our brains are built to create. We are built to imagine a different future. Sadly, however, many of us spend most of our life fighting against our natural inclination to think and create because our notes might not fit into the structure that currently exists. The first step in creating your own music is simply to build trust in your own intuition. When you have an idea that something could be different, teach yourself to explore the idea, instead of undermining it. The world needs this.

You speak about getting so entranced by other innovators’ genius and work that we miss the point that the true product of their labor was their mindset – their risktaking, etc. What is the significance of this, in your presentation? We often reward and judge others and ourselves by how well we follow the “right path” that was set by others. For example, in classical music, performers will be scolded for not playing all of the right notes that were written by Mozart. We view Mozart as this icon whose words and creations must be copied to every detail. We forget, however, that Mozart, himself, was wild, an innovator, a rebel, a risk taker. There remains this gigantic contradiction: by sticking so rigidly to the notes others have written, we actually become the antithesis of the ideals that these leaders stood for in the first place. We overlooked

Conference Highlight Keynote: Kai Kight October 12 @ 9:00 – 10:45 A.m.

Composing Your World

the true purpose behind what we do. We live within the confines of a world that was already invented instead of using the immense creative power of our own minds.

What does it mean to “compose” one’s world? To compose one’s life is to live with a sense of possibility and intention. A composer, for example, has this incredible imagination where anything is possible. It is then their job to translate these desires into sounds and ideas that manifest in the real world. To compose our life is to live with the notion that anything can be recreated and reinvented. This not only extends to the products and services we create, but to our careers as a whole, the homes we live in, and the relationships we foster.

What can attendees of your keynote expect to take away from your presentation? I think the beauty of my presentation is that each person tends to take something different from it. My mission with each presentation is to simply create a small moment of clarity for people in the audience. I aim to create an experience in which people will be tempted to pause and ask themselves why they do what they do. Often after my presentation, people share very personal stories with me. Some share how it challenged them to rethink the way they are parenting. Others share how it challenged them to rethink the way they run their meetings. The range is wide.

Look for Kai Kight’s cd at this year’s CSDA Annual Conference and Exhibitor Showcase.

San Diego • Oct. 10-13

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California Special District – July-August 2016

[Community Connections]

Is it time to revisit your district’s communications plan? By David A. Robertson, owner, GRADproject, LLC.

Step back from the business In any industry or sector, it’s easy to get into the weeds and lose sight of the forest. Each day we interact with our colleagues or team, using the terminology, acronyms, and industry-speak that makes sense to us, but that can bring on a glossed over look to customers. We lose them. At some point, we must view everything from the customer’s perspective. A friend of mine who is vice president of a global communications company once said, “I want my 80 year old grandmother to understand it.” And that’s the standard. If we can’t explain something in its simplest form, customers will certainly not understand our message, much less remember it. It’s not a case of “dumbing things down” – not at all. Customers don’t live and breathe our industry, our issues, or our technology. They’re busy living their lives and caring for their families.

you want to know how effective you are at communicating, ask the recipient of your message to explain what you just told them. Many southern California special districts are undergoing a great deal of changes and, subsequently, challenges that make it necessary for them to consider how best to convey these changes to their customers. When significant change occurs, it’s often a good idea to ask, “Do I need a larger newsletter?” or “Do I need a new strategy?” After all, the goal is effective communication and customer education, not simply delivering hundreds of newsletters.

When we look at things from a customer’s perspective, we have the opportunity to empathize and gain the understanding of their needs, motivational factors, and preferences. We can then organize information in a way that is not only helpful, but truly appreciated.

If your customers were asked to explain what they understand about your district’s brand and major messages, how closely aligned would their narrative be from yours?

Customers know that fire protection, airports, water, and hospitals are important. When it comes to articulating your district’s vision, purpose, and value, you hit a home run when they are written and conveyed in a way that’s human, authentic, and that resonates on an emotional level. Many vision statements at companies and organizations are nothing more than a plaque on a wall. When you can connect your vision, purpose, and value and use them as guiding principles in how you communicate, it builds trust with customers, the media, and others in your target audience.

Are they spot-on? Congratulations! Some level of discrepancy? Then let’s explore some ideas to close the gap. When it comes to creating or updating a strategic communications plan, I prefer to take a simple approach that considers stepping back from the business, articulating the vision and value, evaluating challenges and obstacles, developing a communications theme, and incorporating creativity.

Articulating vision, purpose and value The beauty of Nike’s “Just Do It” campaign is that it crystalizes and articulates Nike’s vision and purpose. Nike appeals to athletes who want to win. That’s it. It’s simple. It resonates with their customers who “get it.”

Share your community connections Is your district interacting with the community in a new and original way? California Special District wants to know about it! Contact Nicole Zajic at nicolez@csda.net or (877) 924-2732.

Evaluating challenges and obstacles Some challenges that special districts face are prevalent customer perceptions and mindsets. Others might include: • Information overload and short attention spans. • Complexity of cost structures. • Apathy, ignorance, and misinformation. • Taking amenities, infrastructure, and service for granted. • The need to pass along increased costs to financially burdened households. • Complexities, constraints, and limitations of large-scale projects and large infrastructure.

California Special District – July-August 2016

Once you identify the obstacles that you must overcome, you can now enlist your team or consultant to collaborate on creating solutions to address those potential roadblocks.

Developing a theme There are clear benefits of creating an overarching theme to which all communications are tied to and support. First, it makes it easier for the district to create and focus the messaging, copy, and communication. For customers, the communication is less random and more purposeful.

Additionally, consider revisiting your brand, which includes the district’s voice, the tonality, and the level of formality in how you communicate with your customers. Other considerations are the scripting and cadence of your voice mail message, how you greet customers by phone and in person, and the manner in which you project your district’s image though photos, graphics, and videos. When the messaging, tactics, brand, and strategy are in alignment and working Continued on page 24

Community Connections [continued] together, you have a world-class strategic communications plan that will help you meet your goals and objectives.

Getting creative Now it’s time to have fun. Today’s challenges require fresh thinking and creative problem-solving. So, get out of the office to clear your mind and change your team’s perspective. Have fun with the creative process. Start with a group activity to get people moving, laughing, and having fun. Go bowling at lunch, divide into teams and do a scavenger hunt, play laser tag or have a picnic in the park. Then, conduct your planning meeting with your team somewhere out of the office, where there are none of the usual distractions, and you’re sharing ideas in a new environment. Your team is sure to invent some fun, creative ways to connect and engage with your target audiences. Some ideas that you might try: • Personally deliver your next press release with some fresh homemade cookies. • Schedule lunch meetings with your local reporters in order to

get to know each other. • Infuse new energy into your communications; use fewer words, and larger or more images. • Update the design and image of your website; use colors that promote engagement. • Give updates and news to customers using video recordings on the website, email, or social media. • Make it a goal to build stronger relationships with your customers and humanize your district. Another aspect of being creative is how news/updates are framed and presented. For example, if rates are increasing, present the big picture while being specific. Remind customers of the wonderful benefits that they will continue to receive and enjoy; compare the costs in context and in relation to the value of the service that your district provides; and don’t be shy about letting customers know about the improvements that you’ve delivered.

Bringing it all together The communications plan and calendar should outline how

Conference Highlight Breakout Session October 12 @ 3:45 – 4:45 p.m.

R.E.S.P.E.C.T. - Communicating Your District’s Value, a panel discussion

you’ll connect with various audience segments: customer types, city leaders, and stakeholders. As you identify the needs of each audience segment, consider their motivational factors, and then craft tailored messages for each group. Consider the times of the year, month, and/or week that you’ll implement your touch points. Technology tools make it easier for organizations that want to tailor customer experiences to increase engagement with them. Analytical tools like heat maps on a website can enable your district to see specifically where visitors are scrolling to and accessing content on web pages. Establishing metrics, analytics, and reporting helps to monitor effectiveness and should be part of ongoing discussions on how to continually improve and advance toward the established goals. In the end, it’s how well we connect with and engage our target audiences that determine how successful our communications efforts are. We can always find ways to improve upon our communications. To do so, however, we need to pause, step back, and think creatively. David Robertson is principal owner of theGRADproject, LLC. He brings his discipline and leadership in the areas of strategy, market research, business consulting, and project leadership to municipal, special districts, residential communities, healthcare and transportation clients who benefit from his ability to solve problems creatively, approach challenges strategically, and engage target audiences by understanding a client’s vision, creating key messages that resonate with them, and developing specific plans to achieve intended objectives in order to reach large picture goals.

BUSINESS AFFILIATE special acknowledgements

B:8.75” T:8.5” S:8”

AL RICTS PECIAL S IN WEST.

Meyers Nave Legal www.meyersnave.com

Burke, Williams & Sorensen, LLP Legal www.bwslaw.com

PARS Benefits, Retirements www.pars.org

California CAD Solutions, Inc. GIS Implementations www.calcad.com

Pacific Gas & Electric Company Energy Solutions www.pge.com

CPS HR Consulting Consulting, HR, Recruiting, Training www.cpshr.us

Regional Government Services Authority Staffing Services www.rgs.ca.gov

CSDA Finance Corporation Tax-exempt financing www.csdafinance.net

Special District Risk Management Authority Risk Management Coverages www.sdrma.org

Five Star Bank Banking www.fivestarbank.com

Streamline Website Design www.getstreamline.com

Hanson Bridgett LLP Legal www.hansonbridgett.com

Tyler Technologies Software Technology Services www.tylertech.com

T:11”

Atkinson, Andelson, Loya, Ruud & Romo Legal www.aalrr.com

B:11.25”

Kaiser Permanente Health Coverages www.thrive.kp.org

S:10.5”

Accela Cloud-Based Technology www.accela.com

District Purchasing Card

a CSDA District Purchasing Card1 that can control over expenses and cash flow while urement process. And our online reporting e time and track employee spending.

Thank you to our diamond, Platinum and gold level business affiliates for their generous support.

highlight

CSDA has partnered with Bank of the West in a District Purchasing Card program designed especially for CSDA members. Our goal is to help districts find ways to manage and report spending while providing employees with a convenient tool to make necessary purchases. In addition to helping districts improve cash flow and reduce costs related to check fees, this unique program aggregates the spend of all participating agencies to increase the opportunities for cash rebates, even for smaller districts. For 2015, rebates totaling more than $22,000 were distributed among participants.

hip Manager, call 1-866-588-1358.

Enrollment instructions are available on the CSDA website. Visit www.csda.net or call Bank of the West Government Banking at 866.588.1358 for more information.

w x 11.25” h

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LAST REVISED 2-19-2016 2:16 PM

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California Special District – July-August 2016 INKS

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[Solutions & Innovations]

Strategies for dealing with a toxic workplace By Michael Willihnganz, Director of Administrative Services, Placer County Water Agency

a rewarding place to work. Furthermore, a toxic work environment is unlikely to lead to a high-performing, effective organization.

Unhealthy or “toxic” work environments are probably more prevalent than you think. Anyone who has been in the labor market for any period of time has undoubtedly experienced, observed, or at least heard tales about toxic a workplace. This toxicity often manifests itself through inappropriate and undesirable employee behaviors such as gossip, cynicism, blame, scapegoating, negativity, bullying, intimidation, grudge-holding, and cliquishness. Let’s face it, a toxic workplace is neither a pleasant nor

Conference Highlight Breakout Session October 11 @ 2:00 – 3:15 p.m.

Strategies for Dealing with A Toxic Workplace

The consequences of a toxic work environment are not pretty. They often include low employee morale, reduced job satisfaction, diminished organizational commitment, increased absenteeism, high turnover, and poor organizational performance. If you have observed or experienced any of these symptoms in your special district, there is reason to be concerned. Furthermore, in the midst of high employee turnover, rarely are job applicants waiting in line to join your team as word of your organizational dysfunction becomes known. In short, you have “trouble in River City” as the song goes. A toxic workplace is not the type of environment in which employees are smiling and enjoying a fulfilling and positive experience as they carry out the mission of the organization. What’s worse, a toxic work environment can have negative effects on the physical and emotional health of the employees. Symptoms such as increased anxiety, insomnia, diminished self-esteem, and raised blood pressure are not uncommon. So what causes a workplace to become toxic? The genesis of a toxic workplace can often be traced to dynamics such as widespread personal agendas, ongoing conflicts, ineffective leadership practices, distrust of management, the organization’s failure to hold employees accountable, poor hiring practices, and the inevitability of employees bringing their unresolved emotional issues into the workplace. Leaders ultimately bear the responsibility for creating and maintaining a work

share your solutions and innovations Do you have a new program, process or facility that increases efficiency, reduces costs, improves service or otherwise helps make your community a beter place to live? California Special District wants to know about it! Contact Nicole Zajic at nicolez@csda.net or (877) 924-2732.

environment that is free from toxic behaviors. Appropriate behavioral standards and expectations must emanate from leadership of the organization. The keys to rooting out toxicity in a special district and building a positive workplace culture can be summed up in two words – communication and respect. When communication and respect permeate the work environment, toxicity has little chance of taking hold. Effective communication is a key characteristic of a healthy organizational culture and is essential for the successful performance of any special district. Effective communication helps ensure that internal processes are running smoothly and helps establish positive workplace relationships. Trust and loyalty are crucial factors in any relationship, including workplace relationships, and both are enhanced by communication that is focused on meeting individual needs, conveying important information, and providing feedback. Respect in the workplace is critically important because it promotes healthy working relationships which, in turn, creates productive and engaged employees. Respect plus communication equals respectful communication which leads to good listening, direct and open feedback, sensitivity to non-verbal language, collaboration, avoiding gossip, and an appreciation for differences (e.g., age, gender, ethnicity, work style). There are six strategies that a special district can employ to prevent or eliminate workplace toxicity and establish a positive work environment built upon communication and respect. When the first five strategies

California Special District – July-August 2016

organization. The characteristics of the organization’s positive workplace culture (e.g., respect, communication, teamwork, collaboration) should be emphasized and expectations for employee behavior should be communicated.

have proven to be unsuccessful in fostering appropriate behavior, the only recourse is to move to the final strategy and consider staffing changes. Here are the strategies for dealing with a toxic workplace. 1. Recruit and select employees with the right skills. The best way to stop the development of a toxic workplace is to prevent it from occurring in the first place. Special districts should hire not only for the technical skills needed to do the job, but also for soft skills and attributes such collaboration, teamwork, communication, and a positive attitude. 2. Establish behavioral expectations during onboarding process. During the formal onboarding and socialization process, new hires should be properly integrated into the culture of the

3. Engage in coaching and training where necessary. When inappropriate or undesirable behavior begins to surface, the organization should bring such behavior to the employee’s attention and explain why it is unacceptable. Appropriate behavior should be identified and reinforced. When coaching fails to bring about the desired result, additional in-depth training may be in order. Continued on page 44

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Legal Brief Drones in Your District: Technology, Existing Law, and Privacy Concerns By Kristopher Kokotaylo, Meyers Nave

As the commercial and consumer use of unmanned aerial systems (“UAS” or “drones”) continues to skyrocket, there are critical issues that local governments need to consider before utilizing this rapidly advancing technology. Drones can provide an efficient and low cost method for local governments to perform various tasks, such as surveying work and conducting structural analysis, as well as assisting in difficult or dangerous situations, such as firefighting and search-and-rescue missions. However, obtaining and using a drone requires more than simply purchasing the drone and assigning an employee to operate it. In addition to complying with federal regulations, public agencies should consider developing drone-use policies and procedures, and they face the unenviable task of addressing the highly sensitive concerns that local residents may have about privacy and safety. Local Government Options for Drone Use Congress tasked the Federal Aviation Administration (“FAA”) with prescribing air traffic regulations regarding the flight of aircraft, including drones. The FAA Modernization and Reform Act of 2012 provides three classifications for drone use: (1) public,

(2) civil, and (3) model. And, on June 21, 2016, the FAA finalized the first operational rules for routine government and business use of small drones. Thus, as is outlined below, local governments have three options for operating a drone.

Model Aircraft Drones operated solely for hobbyist purposes are not required to obtain approval from the FAA prior to operation, but must comply with statutory parameters for model aircraft operations consistent with Section 336 of Public Law 112-95. Local governments cannot operate a drone for governmental purposes under the model aircraft rules.

Public Aircraft The FAA issues Certificates of Authorization (“COA”) to public drone operators on a case-by-case basis, placing individualized conditions on drone use. Examples of conditions include maximum flight altitudes, minimum operator qualifications, and limitations on nondaylight flights. The FAA performs a technical and operational review of COA applications and typically responds within 60 days.

Civil Aircraft and Small Unmanned Aircraft Rule

Conference Highlight Breakout Session October 12 @ 3:45 – 4:45 p.m.

Drones in Your District: Technology, Existing Law, and Privacy Concerns

Until now, civil drone operators were required to obtain a Section 333 Exemption (in addition to a COA) or a “special airworthiness certificate.” However, on June 21, 2016, the FAA issued regulations (“Small UAS Rule”), effective at the end of August 2016, that authorize the non-hobbyist operation of small UAS without obtaining individual approval

...obtaining and using a drone requires more than simply purchasing the drone and assigning an employee to operate it. from the FAA through a COA or Section 333 Exemption. Local governments and commercial operators can now operate a small UAS if they meet certain minimum requirements and standards. Some of the requirements and standards include the following: 1. At least one person involved in the operation must have a remote pilot certificate. 2. UAS cannot exceed 55 pounds, including payload. 3. UAS must be operated: a. within line of sight of the remote pilot or visual observer. b. during daylight hours. c. no higher than 400 feet above ground level. d. without flying above persons not directly participating in the operation. 4. Pilots and visual observers are prohibited from operating more than one UAS at a time.

The FAA can waive some requirements for operators who show the proposed operation can be safely conducted under a waiver. The FAA is developing an online portal to apply for waivers. In summary, local governments have three options to operate a drone: (1) obtain a Certificate of Authorization, (2) obtain a Section 333 Exemption, or (3) operate pursuant to the new Small UAS Rule. Local governments may prefer the Small UAS Rule, which allows drone operation under specific standards with a qualified operator and eliminates the need to obtain separate FAA approval. While the Section 333 Exemption is still technically an available option, the Small UAS Rule can allow operation in significantly less time than was previously required. Continued on page 45

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California Special District â&#x20AC;&#x201C; July-August 2016

anaging Risk

Primary assumption of risk

we enter the mid-summer season and recreational activities are at their peak, the issue of potential liability for public agencies providing recreational activities or for individuals engaging in hazardous recreational activities on agency property remains a hot topic. We have heard the term “Primary Assumption of Risk”, but what does that entail. Below are two cases that looked at the “Primary Assumption of Risk” doctrine and arrived at two different results.

What is the “Primary Assumption of Risk” Doctrine? California’s “primary assumption of the risk” doctrine was first set forth in Knight v. Jewett (1992) 3 Cal.4th 296. That case involved a plaintiff ’s claim for personal injuries sustained when the defendant knocked her over

A proud California Special Districts Alliance partner.

and stepped on her finger while they were playing touch football. At issue was how the courts should apply the traditional legal defense of assumption of risk, in light of the comparative fault principles that had recently evolved in California jurisprudence. In Knight, the California Supreme Court focused on legal duty: “In cases involving ‘primary assumption of risk’ – where, by virtue of the nature of the activity and the parties’ relationship to the activity, the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury – the doctrine continues to operate as a complete bar to the plaintiff ’s recovery. In cases involving ‘secondary assumption of risk’ – where the defendant does owe a duty of care to plaintiff, but the plaintiff proceeds to encounter a known risk imposed by the defendant’s breach of duty— the doctrine is merged into the comparative fault scheme…”

Officers

Special District Risk Management Authority 1112 I Street, Suite 300 Sacramento, CA 95814 tel: 800.537.7790 www.sdrma.org

David Aranda, President, Mountain Meadows Community Services District Jean Bracy, Vice President, Mojave Desert Air Quality Management District Ed Gray, Secretary, Chino Valley Independent Fire District

Members of the Board

Muril Clift Sandy Raffleson, Herlong Public Utility District Mike Scheafer, Costa Mesa Sanitary District Robert Swan, Groveland Community Services District

“The doctrine of primary assumption of risk is applied to certain sports or sports-related recreational activities where ‘conditions or conduct that otherwise might be viewed as dangerous often are an integral part of the sport itself ’ and their removal would alter the nature of the sport. The overriding consideration in the application of primary assumption of risk is to avoid imposing a duty which might chill vigorous participation in the implicated activity and thereby alter its fundamental nature.”

Primary Assumption Of Risk Doctrine Upheld* Brett Bretsch lost his life following a fall from his skateboard as he was traveling downhill, without a helmet, when the front wheels of his board struck a gap between the paved road and a cement collar surrounding a manhole cover, which stopped the wheels and ejected him from the board. His father and brother brought a wrongful death action against the Mammoth Community Water District which was the entity responsible for inspecting and maintaining the manhole cover and the Sierra Star Community Association, the owner of the private road where the accident occurred. Skateboarding, like many other extreme sports, is an activity done for the thrill of it, requiring physical exertion as well as elements of skill involving risk of injury. Although Brett was not performing a trick on his skateboard at the time of the accident, the court noted that falling was an inherent risk of skateboarding and because he was skating (“cruising”) down a hill, the activity of merely riding a skateboard

California Special District – July-August 2016

Consultants

Lauren Brant, Public Financial Management Ann Siprelle, Best Best & Krieger, LLP David McMurchie, McMurchie Law Derek Burkhalter, Bickmore Risk Services & Consulting Charice Huntley, River City Bank James Marta, CPA, Auditor Karl Snearer, Apex Insurance Agency Doug Wozniak, Alliant Insurance Services, Inc.

was subject to the doctrine of primary assumption of risk. The attorneys for the plaintiffs claimed that Brett was riding his skateboard simply as a means of transportation (he was heading to meet his father at the bottom of the hill) yet the court noted that Brett was coming down the hill on the wrong side of the street without a helmet which potentially was more dangerous than simply performing a trick on a skateboard. Importantly, neither defendant played any role in Brett’s participation in skateboarding that day. Neither the Water District nor the Homeowners Association held out the roadway or manhole cover as an appropriate place to skateboard or in any other way represented that the roadway or manhole cover was a safe place for skateboarding. To impose a duty on road owners and water districts, whether private or public, to make the roads and utility access points safe for skateboarding would amount to an unnecessary

SDRMA Staff

Gregory S. Hall, ARM, Chief Executive Officer C. Paul Frydendal, CPA, Chief Operating Officer Dennis Timoney, ARM, Chief Risk Officer Ellen Doughty, ARM, Chief Member Services Officer Heather Thomson, CPA, Chief Financial Officer Debra Yokota, Claims Manager Wendy Tucker, Member Services Manager Danny Pena, Senior Claims Examiner Alana Batzianis, Senior HR/Health Benefits Specialist Dan Berry, Senior Member Services Specialist Heidi Singer, Claims Examiner Shawn Vang, Accountant Rajnish Raj, Accounting Technician Rachel Saldana, Administrative Assistant

burden. The trial judge granted summary judgment for both defendants and the Court of Appeal affirmed. Participants in sports or sport-like activities incur a risk of significant injury or death. Typically, a defendant owes no duty to protect such a participant. The nature of the sport and the nature of the role of the defendants continue to be the two most important factors in applying the primary assumption of risk doctrine. *Borton Perini – Insurance Defense June, 2016

Primary Assumption of Risk Defense in a Classroom Setting* The primary assumption of risk doctrine is not a defense to a negligent supervision claim against a school district. The Third District Court of Appeal, reversing the Placer County Superior Court’s Judgment, held that primary Continued on page 42

Conference Highlight Breakout Session October 12 @ 11:00 a.m. – 4:45 p.m.

SDRMA Safety Specialist Certificate Program

Money Matters Special district executive recruitment, evaluation, and compensation By Edward M. Bernard, Partner, Hanson Bridgett LLP

purchases after 2012. These limits on retirement benefits, traditionally one of public employment’s attractive benefits, make it more difficult for special districts to compete with the private sector for executive talent. To address this, special districts may need to consider other strategies to attract and retain executive talent.

Recruiting executives has become increasingly difficult for public agencies. Special districts are constantly trying to fill executive level positions, but are frequently hindered by limits on compensation, including those imposed by the California Public Employees’ Pension Reform Act of 2013 (“PEPRA”). To address these challenges, special districts may need to consider other strategies for enhancing executive compensation post-PEPRA, such as how to make salary, bonuses, and other enhancement terms more competitive, supplemental defined contribution plans, and nonqualified deferred compensation plans, and how to avoid the federal tax and state law traps along the way. PEPRA Limits on Pensions PEPRA mandates uniform, generally lower, benefit formulas, a minimum final compensation averaging period of at least three years, limits on pensionable compensation, and contributions of 50 percent of the pension normal cost for “new members.” In addition, PEPRA generally prohibits new replacement benefits plans, new supplemental defined benefit plans, retroactive benefit enhancements, and “airtime”

CSDA F C

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Traditional Compensation One strategy that special districts may want to consider to try to bridge the gap left by PEPRA is how to more effectively use salary, bonuses, and other traditional forms of compensation to attract and retain executives. While not new, these more traditional forms of compensation have become an even more important component of public agency executive compensation because they are not limited by PEPRA. In doing so, however, employers should consider internal and external alignment and publication and transparency of public employees’ salary. Bonuses should be tied to specific performance goals to avoid implicating California’s gift of public funds doctrine, and employers should have an annual evaluation process in place. Also, care should be taken to structure traditional enhancements, such as relocation, housing, vehicle, professional development and travel allowances and reimbursements, to avoid adverse tax consequences to executives and special districts under IRS rules. Supplemental Defined Contribution Plan Special districts may also want to consider establishing a qualified supplemental defined contribution plan for executives. While PEPRA

Officers

Jo MacKenzie, President, Vista Irrigation District Paul Hughes, Vice President, South Tahoe Public Utilities District Leslie Keane, Treasurer, Orange County Cemetery District

CSDA F C

CSDA Finance Corporation 1112 I Street, Suite 200 Sacramento, CA 95814 tel: 877.924.CSDA www.csdafinance.net

Members of the Board

Don Humphrey, Livermore Area Recreation and Park District John Martin, Tehachapi-Cummings County Water District Matthew McCue, Mission Springs Water District

prohibits new supplemental defined benefit plans, it does not prohibit new supplemental defined contribution plans. PEPRA does, however, limit employer contributions to a supplemental defined contribution plan for new members who also participate in a defined benefit plan. Under these rules, a public employer may contribute to a defined contribution plan for new members based on compensation in excess of the pensionable compensation limit that applies to the defined benefit plan ($117,020 for members participating in Social Security, and $140,424 for members not participating in Social Security, as adjusted, for 2016 ). But this contribution must be limited to the employer’s contribution rate, as a percentage of pay, required to fund the defined benefit plan, subject to the IRS limit on annual compensation in section 401(a)(17) of the Internal Revenue Code ($265,000, as indexed for 2016). Further, a public employee must not have a vested right to continue receiving the employer contribution. Finally, the Internal Revenue Code limits total allocations on behalf of a participant to a defined contribution plan to the lesser of (1) 100 percent of compensation, or (2) $53,000. Care should be taken, therefore, to design a supplemental defined contribution plan that will not exceed these limits. Nonqualified Deferred Compensation Plans Another option may be a nonqualified deferred compensation plan. There are, however, several potential issues for nonqualified deferred compensation

California Special District – July-August 2016

Consultants

Rick Brandis, Brandis Tallman, LLC David McMurchie, McMurchie Law Scott Boroczi, BNY Mellon Trust Co., NA William Morton, Municipal Finance Corporation Albert Reyes, Nossaman, LLP Saul Rosenbaum, Prager & Co., LLC Nicole Tallman, Brandis Tallman, LLC

CSDAFC Staff

Neil McCormick, CEO Cathrine Lemaire, Program Manager Charlotte Lowe, Executive Assistant Rick Wood, Finance Manager

flexibility. For example, under The Internal Revenue Code the “shortlimits total allocations on term deferral First, nonqualified behalf of a participant to a rule,” deferred deferred compensation defined contribution plan to compensation plans of state and the lesser of (1) 100 percent that is paid local governments within 2½ of compensation, or (2) are generally subject months after the to restrictions under $53,000. calendar year sections 457(f) and in which the 409A of the Internal executive vests Revenue Code. isn’t subject to Under section 457(f), the rules under section 409A. deferrals are generally subject to tax Certain bona fide separation pay upon vesting. Nonqualified deferred plans also aren’t subject to these rules, compensation is also subject to but only if the plan (1) provides for restrictions on timing of elections, separation pay upon an involuntary changes to time and form of payment, separation from service; (2) limits and permissible payment triggers under the separation pay to two times the section 409A. lesser of (a) the employee’s annualized compensation based on his rate of pay While certain types of arrangements are excepted from these rules, these arrangements may lack the desired Continued on page 34 plans of state and local governments.

Conference Highlight Breakout Session October 11 @ 11:00 a.m. – 12:00 p.m.

Special District Executive Recruitment, Evaluation, and Compensation

Money matters [continued] for the calendar year preceding his separation from service, or (b) the annual compensation limit under section 401(a)(17) of the Internal Revenue Code in effect for the year in which the employee separates from service; and (3) provides for payment by the end of the second calendar year after separation from service. In addition, California law generally limits severance pay to 18 months. Failure to comply with these rules can result in immediate taxation of deferred compensation and additional taxes, including an additional 20 percent tax under section 409A. Therefore, care should be taken in designing nonqualified deferred compensation plans to avoid violating these tax rules.

Second, nonqualified deferred compensation plans generally don’t offer the same level of benefit security for executives as qualified plans because contributions to these plans must, under the tax rules, be held either as part of the plan sponsor’s general assets, or in a grantor “Rabbi Trust” subject to the claims of the plan sponsor’s general creditors in the event of its insolvency. While a Rabbi Trust may offer marginally better benefit security to executives, the California Constitution’s investment restrictions on public agencies may prohibit investing trust assets in equities. This is because nonqualified deferred compensation plans may not qualify for the public retirement system exception to these restrictions, which requires that plan assets be used for the exclusive benefit of participants and their beneficiaries. For more information about how to approach executive compensation post-PEPRA, and how to avoid federal tax law and state law traps along the way, please sign up to attend our presentation at the 47th CSDA Annual Conference in San Diego, October 10-13, 2016.

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[What’s so special]

Pacific on tap

San Diego County Water Authority After three years of construction, the San Diego County Water Authority and Poseidon Water dedicated the Claude “Bud” Lewis Carlsbad Desalination Plant on Dec. 14, 2015. The plant is producing approximately 50 million gallons per day of locally controlled water for San Diego County, helping to minimize the region’s vulnerability to statewide drought conditions. It is part of a $1 billion project that includes the nation’s largest and most technologically advanced and energy-efficient treatment plant, a 10-mile large-diameter pipeline and improvements to Water Authority facilities for distributing desalinated seawater throughout San Diego County. The plant meets about seven to 10 percent of the region’s water demand – about one third of all the water generated in the county. California Special District asked San Diego County Water Authority to discuss how the plant came to be and how it meets the needs of the local community. What is the Carlsbad Desalination Plant? The Claude “Bud” Lewis Carlsbad Desalination Plant produces approximately 50 million gallons of drinking water from the Pacific Ocean each day – enough for approximately 400,000 people – reducing the San Diego region’s vulnerability to drought and interruptions of imported water supplies due to an earthquake or other unexpected event. The plant, the largest seawater desalination plant in the nation, relies on reverse osmosis technology to generate about 10 percent of the region’s water supply. Water from the facility is pumped about 10 miles east through a newly constructed large-diameter pipeline to the Water Authority’s treatment plant, where it is blended with

Mark Weston Board Chair Jan Blake Executive Director

San Diego County Water Authority Established: 1944 Size: 248 employees Population: 3.2 million

treated water from other sources for regional distribution. The Carlsbad plant is the result of an innovative public-private partnership between the Water Authority and Poseidon Water, the owner/developer of the facility. In March 2016, water from the Carlsbad plant was certified by the State Water Resources Control Board as “droughtresilient,” reducing the regional impacts of emergency water-use mandates the state imposed in June 2015. In April, the facility was honored with a Global Water Award as the Desalination Plant of the Year for 2016 by Global Water Intelligence, publisher of periodicals for the international water industry. And in June, the public-private partnership between the Water Authority and Poseidon, the owner/operator of the Plant was awarded the highest honor by the San Diego County Taxpayers Association for “stretching taxpayer dollars through cooperation between the public and private sectors.”

Location: San Diego County Website: www.sdcwa.org Budget: $1.5 billion for two fiscal years (2016 and 2017)

San Joaquin Bay-Delta. In 1991, the San Diego region relied on the Metropolitan Water District of Southern California for 95 percent of its supplies. However, severe drought conditions that year led MWD to reduce San Diego County’s water supplies by 31 percent. Stung by the drought and over-reliance on a single supplier, the Water Authority’s Board of Directors laid out a vision for a diversified water supply portfolio that would help the San Diego region thrive even in dry years. Of course, water conservation was the first step, and per capita potable water use in the region has dropped nearly 40 percent between 1990 and 2015. The Water Authority is a leader in sponsoring conservation legislation (including the landmark bill that required ultra lowflush toilets statewide) and developing innovative, hands-on programs to promote WaterSmart landscapes as the new normal.

As the agency promoted conservation, it started negotiations with Imperial Irrigation District to transfer water conserved in the Imperial Valley to the San Diego region. These negotiations became critical components of the historic 2003 Colorado River Quantification Settlement Agreement, which included the largest ag-to-urban conservation-and-transfer program in the country and helped to reduce California’s over-reliance on the Colorado River. With these new, highly reliable and independent supplies secured, the Water Authority began looking to the vast Pacific Ocean for another major piece of its water supply portfolio.

How long was the process to construct the plant, from the idea’s inception to completion? The idea for a commercial-scale seawater desalination plant on the San Diego County coastline emerged in the early 1990s as a result of advances in desalination technology, but it took Continued on page 38

Explain the need for the plant. What challenges does it solve for the local community? From the earliest recorded history in San Diego County, securing a safe and reliable water supply has been a central challenge due to the region’s semi-arid climate and limited natural water supplies. The region has few major aquifers and just 10 inches of rain fall in the average year at the official weather station at Lindbergh Field. In fact, 1946 was the last year local water supplies were sufficient to meet local water needs. An additional challenge is that San Diego County is at the end of the imported water supply network, which delivers water from the Colorado River and the Sacramento-

California Special District – July-August 2016

Conference Highlight Pre-Conference Tour October 10 @ 12:00 – 3:00 p.m.

Carlsbad Desalination Plant

Pacific on tap [continued] decades of study, planning and project development for a specific project to gain the necessary traction. After several concepts failed to materialize, the Water Authority and a private developer, Poseidon Water, began negotiations to develop the Carlsbad Desalination Plant that resulted in a Water Purchase Agreement in 2012. The agreement protects ratepayers by shifting appropriate construction and operational risks to Poseidon, and it provided Poseidon with the certainty that it needed to attract investors. Financing was secured in late 2012, and commercial operations began three years later.

Poseidonâ&#x20AC;&#x2122;s Climate Action Plan calls for the plant to be net carbon neutral over 30 years through the purchase of carbon offsets and energy recovery technology. Poseidon also is restoring 66 acres of wetlands in San Diego Bay. That project involves excavating and grading a former salt production pond to create a mosaic of coastal habitats beneficial for a variety of fish and bird species. In addition, Poseidon is preserving the 400-acre Agua Hedionda Lagoon by assuming responsibility for the continued stewardship of the lagoon and restoration of 37 acres of wetland habitat.

What are the environmentally-responsible aspects of the plant?

What were the biggest challenges you faced with making the plant a reality? How did you solve those challenges?

The Carlsbad plant meets some of the strictest environmental regulations in the world, designed by the California Coastal Commission and other agencies to protect sea life, water quality, and other resources. And, the plant uses energy-recovery devices that reduce overall energy consumption of the reverse osmosis process by 46 percent and carbon emissions by 42,000 metric tons annually.

Poseidon and the Water Authority faced several challenges in making the plant a reality: 1. Regulatory: Poseidon, the Water Authority and stakeholders worked for six years to secure permits for the plant from the California Coastal Commission, the San Diego Regional Water Quality Control Board, the stateâ&#x20AC;&#x2122;s Department of Health Services, the State Water Resources Control Board, and the City of Carlsbad. 2. Legal: Environmental groups filed 14 lawsuits against the plant, and none of them were successful. Poseidon successfully defended the project each time. 3. Community: The 10-mile conveyance pipeline that delivers water from the plant to the Water Authorityâ&#x20AC;&#x2122;s aqueduct system traverses business parks and neighborhoods. Construction posed significant challenges to businesses and residents in Carlsbad, Vista and San Marcos. Prior to construction, Poseidon and the Water Authority began talking with neighbors about the impacts. During construction, Poseidon held informational meetings in neighborhoods, kept local elected officials apprised of progress and worked with staff from each of the cities to reduce traffic and other impacts. Another potential community challenge was the cost of the desalinated water, which is about twice the cost of treated imported water from MWD. The Water Authority worked with Poseidon to educate the public about the need for a more reliable water supply, showing that it would cost typical homeowners just $5 a month and over the long-term would be less expensive than imported water.

San Diego Mayor Kevin Faulconer refers to the desalination plant as a “game-changer” for the region. What makes it so? The desalination plant changed the game by tapping the ocean on a scale never done before in the Americas. While desalination may not be the right strategy for every community, it’s now clear that it is a viable option for coastal communities in need of improved water supply sufficiency.

What can attendees of the plant’s pre-conference tour look forward to experiencing? Tour stops include secondary pretreatment facility, the reverse osmosis building, and the product water tank. Attendees also can sample desalinated seawater.

Are there any other innovative projects on the horizon for the Water Authority? Yes! Innovation is at the heart of how the Water Authority operates, builds

and maintains the region’s water supply system. For instance, the Water Authority’s Aqueduct Protection Program uses state-of-the-art technology such as magnetic flux leakage detection to identify necessary repairs. When sections of pipe need repair, the Water Authority installs new steel liners through small portals instead of digging out old sections of pipe and replacing them. This approach reduces costs and impacts to neighbors and the environment, while extending the useful life of the pipeline by 75 years or more. The Water Authority also supports the development of potable water reuse efforts across the region as the next major increment of local supply. For instance, the agency sponsored state Senate Bill 322, signed by Gov. Jerry Brown in October 2013, to expedite a transparent

and rigorous scientific assessment of potable reuse as a potential water source. In addition, the Water Authority supported a successful application from the WateReuse Research Foundation for $2.1 million from Proposition 84 to fund a potable reuse study at the City of San Diego’s demonstration facility. The Water Authority is also active on the energy front. For instance, we are also partnering with the City of San Diego to study the feasibility of building a new pumped storage project to generate up to 500 megawatts of clean, hydroelectric energy. We also are preparing to install floating solar panels on a reservoir (to generate electricity while reducing evaporation) and install large batteries at two facilities to store energy during peak solar production for later use – all part of our commitment to innovation.

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California Special District – July-August 2016

Managing risk [continued] assumption of risk is not a complete defense where a student was injured attempting a “flip” while practicing break dancing in his classroom when his teacher was not present. Roseville City School District teacher, Alan Hall, gave his middle school students, including Plaintiff Uriel Jimenez, permission to practice break dancing in his classroom for a school talent show. While the teacher was away from the classroom, Jimenez was injured while doing a “flip.” Jimenez sued the district, alleging negligence and negligent supervision. The trial court ultimately granted summary judgment in favor of the district, applying the primary assumption of risk doctrine, to find that Jimenez had assumed the risk of injury by participating in break dancing

The opinion clearly emphasizes two important factual issues. First, there was no supervisor in the classroom when the injury occurred. Second, the assistant principal had forbidden flipping, but did not communicate that to the teachers. The duty to supervise under Education Code 44807 establishes a duty in this case. Although it does not exclude the possibility of primary assumption of risk defense applying in the appropriate factual scenario, here the appellate court indicated that a jury could have found that the lack of supervision constituted a breach of the duty that the district owed to Jimenez, proximately causing his injuries, especially in light of the recent prohibition by the assistant principal. Thus, with the evidence viewed in Jimenez’ favor, Jimenez’ negligent supervision claim should have survived the district’s summary judgment motion.

In discussing the primary assumption of risk doctrine, the Third District Court of Appeal It is extremely unlikely that indicated that the theory is a The decision in this case is not a any court would absolve a complete bar to recovery. It applies surprise. The presence of an adult school district of its statutory when, as a matter of law, the in the room acts as a deterrent duty to supervise under the defendant owes no duty to guard to risky behavior. It is extremely against a particular risk of harm. primary assumption defense, unlikely that any court would In contrast, secondary assumption absolve a school district of its which essentially means that of risk applies when the defendant statutory duty to supervise under the defendant does not owe owes a duty, but a plaintiff has the primary assumption defense, a duty of care to protect the knowingly encountered a risk of which essentially means that the plaintiff from the risk inherent injury caused by the defendant’s defendant does not owe a duty of breach. Although the defense has in the activity. care to protect the plaintiff from been applied to public schools for the risk inherent in the activity. extracurricular sports activities, it The statutory duty to supervise, has not been applied in a public and the public policy behind it, school setting to activities during is too strong to be eliminated in the school day. There was evidence factual scenarios where the injury in the case that the school’s arises in the classroom as opposed Assistant Principal had recently to extracurricular, recreational or forbidden certain students from performing flips at sporting activities. school, but the teacher was not aware of this. The case *Case Review from Spinelli Donald & Nott, June, 2016 was not about the possible liability of co-participants in recreational activity, or of an instructor in a Each case is driven by the facts and different jurisdictions recreational activity towards a student. my find different reasoning behind the Primary Assumption of Risk Doctrine to establish liability. The Third District Court of Appeal indicated that this case was about the possible liability of a school, Each agency must understand the potential risks because a teacher broke school rules and allowed involved in providing recreational activities to the public middle school students to engage in a potential risky or allowing recreational activities on properties owned activity, break dancing, in the classroom without or maintained by the respective public agency. supervision. The Court indicated that it does not want schools to allow children to congregate in unsupervised For more information, please contact SDRMA Chief Risk classrooms to engage in physical activities that can Officer Dennis Timoney at dtimoney@sdrma.org or call easily spiral into dangerous activities, given the known 800.37.7790. proclivities of children to engage in horseplay, etc. 42

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Solutions & Innovations [continued] 4. Include behavioral expectations in the performance management program. The performance management program should address both technical skills and soft skills in a manner similar to the approach taken with the recruitment and selection process. Employees should be evaluated and provided with feedback on their interpersonal skills, communication, teamwork, etc. Where improvement is needed, it should be documented and discussed. 5. Apply workplace performance policies vigilantly. Most special districts likely have policies that define appropriate and/or inappropriate employee behavior. Employees should be held accountable for adhering to those performance standards. When an employee repeatedly violates a performance standard, the organization’s progressive discipline process should be used in an effort to correct behavior. Inappropriate behavior should never be ignored or tolerated. 6. Replace problem employees. When an employee continues to exhibit behavior which is considered

A toxic workplace has serious consequences for the operations of a special district. toxic to the workplace, and the previous strategies designed to reshape behavior have failed to bring about the desired improvements, it may be time to ask the employee to exit the organization. An employee whose behavior is incompatible with the desired organizational culture can be harmful and destructive to the work environment. In this case, it is often in the best interest of the special district to replace the employee. A toxic workplace has serious consequences for the operations of a special district. These consequences include reduced productivity and performance, high employee turnover (typically by the better employees), difficulty in recruiting talent, and ultimately, a damaged organizational reputation. By following the strategies discussed herein, the special district should be successful in transforming a toxic workplace into a positive work environment.

District Snapshots Cordova Recreation and Park District (CRPD) held a groundbreaking ceremony in April to mark the beginning of construction for its Heron Landing Community Park. The 20-plus acre park will feature various athletic fields and courts, two playgrounds, a splash park and shaded picnic areas. A community center is also scheduled to be built at a later date. “The community has anticipated this park and has been very patient through this process,” said CRPD District Administrator Jim Rodems. “The district has turned the corner on the funding and is pleased to get this park accomplished for the community.”

Legal brief [continued] Privacy and Policy Concerns Although there are important purposes for governments to use drones, such use may raise privacy concerns from the public. For example, drone use for law enforcement purposes could generate questions about governmental surveillance or the use of images and other data collected and/or recorded by drones. Unfortunately, local governments are on their own in this complex and controversial privacy arena. The Small UAS Rule does not address privacy and the FAA does not regulate how drones gather data on people or property. The Small UAS Rule press release specifically states that the “FAA strongly encourages all UAS pilots to check local and state laws before gathering information through remote sensing technology or photography.” As potential guidance for local governments, the press release only provides a link to the “Voluntary Best Practices for UAS Privacy, Transparency, and Accountability” report from the National Telecommunications and Information Administration. In addressing privacy issues, local governments need to consider that the United States Constitution and California Constitution protect citizens from “unreasonable” searches and seizures. Generally, law enforcement cannot perform a search without a valid search warrant or a recognized exception to the search warrant requirement, such as exigent circumstances. However, the U.S. Supreme Court has held that the use of legally permissible airspace to conduct surveillance of outdoor property and the use of sense-enhancing technology that is in general public use do not constitute an unreasonable search. Thus, local

California Special District – July-August 2016

governments could likely utilize drones to conduct monitoring for illicit activity. Additionally, local governments could utilize drones to perform non-law enforcement activities including activities that would otherwise require reconnaissance teams or a helicopter. The critical question is whether local governments want to utilize drones without public input and without defined policies, procedures, and guidelines, which could risk upsetting residents who may already be apprehensive about governmental overreach and surveillance. Although local governments may generally be able to utilize drones uninhibited, they should consider proactively self-regulating drone use and developing a publicly vetted policy. Important areas that governments should address in a policy include: (1) how drones will be used, (2) safeguards to ensure drones are not utilized for illicit purposes, (3) retention policies for data gathered by drones, (4) procedures to investigate complaints, and (5) audit

procedures. A policy that incorporates these measures can help ease potential public mistrust of government and help local residents understand the purposes for which drones will be used, restrictions on that use, and ultimate benefits of that use. As drone usage expands throughout our personal and professional lives, local governments must be prepared to be held to the highest expectations of transparency and accountability when utilizing drones for the public good.

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