California Special District by California Special Districts Association

CA SPECIAL

DISTRICT Publication of the California Special Districts Association

Crucial Conversations: Interview with Dr. Bob Jerome

Volume 11, Issue 2, Mar - Apr 2016

FEATURE True success: The art of achievement in times of change

Content related to our upcoming General Manager Leadership Summit!

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

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Volume 11, Issue 2 • March - April 2016

Contents

Crucial conversations: Interview with Dr. Bob Jerome

True success: The art of achievement in times of change

4 President’s Message Three conferences, three months, unlimited opportunity 5 Professional Development Special Districts Legislative Days; Professional Development calendar 6 CSDA News Thousands distributed to district purchasing card participants; Administrative salary and benefits survey report now available 8 Grassroots Action Update Senate Bill 885, by Senator Lois Wolk

West Side Cemetery District performs restoration on old Midway Cemetery

Preparing for a successful audit of your special district

Community Connections

14 In Brief Mountain lion study underway; Fire district secures new rescue unit; District to feature story on family’s history; Air district offers free emissions testing; Harbor district supports fishermen; and more! 26 Solutions and Innovations Social media Q&A for special districts 32 Legal Brief Medical marijuana in the workplace: A legal overview and practical suggestions for the future

Money Matters

34 Managing Risk Dangerous condition of public property liability exposures 40 What’s So Special Have librarians, will travel Santa Clara County Library District

Ask the Experts - pg. 12 Can we set a policy that combined lots will continue to pay what they had been paying?

Printed on recycled paper. California Special District – March-April 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 Districtt Steve Perez, Past President Rosamond 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 Noelle Mattock, El Dorado Hills Community Services 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 A proud California Special Districts Alliance partner

Three conferences, three months, unlimited opportunity

I have

gratefully served on the CSDA Board of Directors for over five years. In that time I have seen CSDA’s professional development opportunities grow, not only in the number of opportunities available, but in the ability to meet the needs of all of the roles critical to the success of a district’s mission. Are you a board member? Are you a general manager? Are you a member of a district’s staff? CSDA has worked over the years to learn what each of your roles require in order to perform at the top of your ability. Starting in May, CSDA will offer three conferences each month, through July. In May, board members and staff can attend Special Districts Legislative Days. Special Districts Legislative Days is a twoday legislative conference that features a dynamic lineup of speakers and activities. Representatives from all types of special districts attend this event to ensure the successful delivery of the essential local services special districts provide to millions of people statewide. In June, general managers and others in leadership roles can attend the General Manager Leadership Summit. The summit is a way for you to come together with other special district leaders from throughout the state to network and learn more about your specific job responsibilities.

William Nelson

I have seen CSDA’s professional development opportunities grow, not only in the number of opportunities available, but in the ability to meet the needs of all of the roles critical to the success of a district’s mission. And in July, board members can attend the Special District Leadership Academy Conference, where they can gain the knowledge base to perform essential governance responsibilities. I have been through the initial and advanced Special District Leadership Academy programs and have come away with the insight of speakers who have worked hard at building effective boards. The conference provides a professional overview of good governance practices. By no means are these the only professional development offerings - visit www.csda.net for a full list of workshops and live and on-demand webinars available throughout the year. In addition, there are two more conferences - for special district talent of all roles - later in the year. For now, though, I want to take the opportunity to share the conferences coming to you this summer, so you can make plans to spend some time with your peers learning, networking, and growing.

Highlight

May

May 17-18, 2016 Sacramento, CA Register today for an early bird discount!

Will your voice be heard in the Capitol?

May 2

WORKSHOP

Who Does What? Best Practices in Board/Staff Relations, McKinleyville

May 10

WEBINAR

Records Retention and Management

May 17-18

CONFERENCE

Special Districts Legislative Days

May 26

WEBINAR

Communication Protocols for Board Members/Staff

June 1

WEBINAR

AB 1825 Harassment Prevention Training

June 12-14

CONFERENCE

General Manager Leadership Summit, Olympic Valley

June 29

WEBINAR

LAFCo 101 for Special Districts

June

This yearâ&#x20AC;&#x2122;s Special Districts Legislative Days will be taking place May 17-18 at the Sacramento Convention Center. This two-day event will feature a moderated panel discussion with key members of the Legislature, pre-arranged legislative visits, industry-specific roundtables, hot topic discussions, a legislative reception, and much more. Here are five of the top reasons you should attend: 1. Stay up to date on the latest legislative measures impacting your district. 2. Participate in interactive roundtable discussions with our partners and experts on industry-specific issues. 3. Hear the latest on changes to public employee pensions, FPPC reporting and more during our hot topic discussions. 4. Build relationships with your state legislators and their Capitol staff during pre-arranged legislative visits. 5. Learn how decisions are really made in Sacramento, and explore how, together, we can make a difference. Register by April 15 at legislativedays.csda.net and take advantage of the $50 early bird discount! Hotel Information Hyatt Regency Sacramento is offering a discounted rate to CSDA members. Call to reserve at 1-888-421-1442. Room reservation cut-off is April 25, 2016.

California Special District â&#x20AC;&#x201C; March-April 2016

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103 professional development opportunities including conferences, webinars, workshops and on demand training offered by CSDA in 2016.

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Thousands Distributed to District Purchasing Card Participants

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First launched in 2012, the program is continuing to grow. Not yet a participant? Application forms and stepby-step instructions are available at www.csda.net. INKS

NOTES

None

In February, rebates totaling more than $22,000 were distributed among the participants of CSDA’s District Purchasing Card program, with some participants receiving more than $1,000 back. Especially developed by Bank of the West for CSDA members, the District Purchasing Card program aggregates the spend of all participating agencies to determine the annual rebate rate. The more agencies using the card, the greater the rebate potential.

CMYK

Administrative Salary and Benefits Survey Report Now Available The final report from the 2015-16 CSDA Administrative Salary and Benefits Survey is now available in the CSDA Bookstore. More than 400 districts of all types and sizes responded to the survey, providing valuable, up-to-date information on salary, health insurance practices, and retirement plans for the most common administrative positions. Districts are able to compare their own data to that submitted by similar districts, based on criteria such as district type, region, number of employees, and operating revenue. Agencies that participated in the survey receive special pricing on the report. CSDA thanks CPS HR Consulting for their assistance in completing this ambitious project.

GARAGEGOTHIC, TRADE GOTHIC, MINION PRO

FONTS

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CSDA NEWS

The Best Legal Resource for Your District BBKnowledge brought to you by Best Best & Krieger Sharing our knowledge of emerging issues in public agency law

Visit www.bbknowledge.com By BEST BEST& KRIEGER LLP

Bank of the West offers a CSDA District Purchasing Card1 that can help you improve your control over expenses and cash flow while streamlining your procurement process. And our online reporting tools can help you save time and track employee spending. To speak to a Relationship Manager, call 1-866-588-1358.

California Special District – March-April 2016

update

Specifically, SB 885 would eliminate the right of a public agency to contract with design professionals for up-front legal defense against claims related to their work. Instead, public agencies could only ask for reimbursement from the design professionals if the claim is fully litigated and a decision is rendered by a court. As a result:

With the Legislature in full swing, CSDA is hard at work monitoring hundreds of bills making their way through the Assembly and the Senate. One of the measures CSDA is closely following is Senate Bill 885, by Senator Lois Wolk (D-Davis), a bill that would greatly limit local agencies’ abilities to responsibly contract with outside companies, and potentially cost taxpayers millions. In 2010, CSDA opposed Senate Bill 972 by the same author and, thanks to strong coalition efforts and your grassroots action, Senator Wolk and the bill’s sponsors agreed to a compromise that removed CSDA’s opposition. SB 885, however, moves beyond the compromise of 2010. This measure would greatly limit special districts’ freedom to contract and would place undue burden on all local agencies who contract with design professionals for public works projects.

• SB 885 favors litigation over negotiation – SB 885 actually encourages new litigation and manufactures unnecessary conflict in public works contract negotiations. • SB 885 forces taxpayers and ratepayers to front the costs to defend the private sector even for claims that allege the negligence, recklessness, or willful misconduct on the part of a private business.

• Every dollar spent on litigation spawned by SB 885 will be one less dollar to support vital public services and infrastructure (fire, police, schools, libraries, etc.). Infrastructure funding that employs hard-working Californians will go toward high-paid attorneys. • SB 885 circumvents market conditions and the freedom to contract, and simply forces taxpayers to insure private entities, even when they are 100 percent liable to the claim. In summary, SB 885 would, in effect, transfer responsibility and risk from design professionals to the public and result in taxpayer dollars funding new unnecessary litigation. Once more, CSDA is asking our members to take notice of this proposed measure and join the effort to stop this bill, which would impact local agencies throughout the state.

Take Action: Share Your Comments – Has your district seen a rise or decline in bid proposals from design professionals? If so, please share your comments with Legislative Representative Jimmy MacDonald - jimmym@csda.net. Adopt a Position – Make sure your district has adopted an oppose position on SB 885 (Wolk). Send a Letter – Submit opposition letters to your legislators regarding SB 885. Sample letters are available at www.csda.net/advocacy. Register for Legislative Days – Attend Special Districts Legislative Days to advocate on behalf of special districts and share your local perspective on key measures, such as SB 885 and other important legislative proposals. Visit legislativedays.csda.net to register.

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

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

MOVERS & SHAKERS Olivenhain Municipal Water District accepts the Distinguished Budget Presentation Award for its 2015-2016 fiscal year budget document from the Government Finance Officers Association (GFOA) of the United States and Canada. This marks the fifteenth consecutive year OMWD has achieved this award. Westside Water District Board Member Jamie Traynham has been reappointed to the 44th District Agricultural Association, Colusa County Fair Board of Directors. Paul G. Peschel has been named the Kings River Conservation District’s general manager. Peschel previously served as planning and engineering manager for the Imperial Irrigation District (IID) energy department. Vicken Kasarjian fills Peschel’s vacancy at IID, and Pete Garris joins Kasarjian as deputy manager for the department. Arvin-Edison Water Storage District has named David A. Nixon as deputy general manager and Jeevan S. Muhar as assistant manager. The American Public Works Association (APWA), California Central Coast Chapter, recognized the Nipomo Community Services District’s Nipomo Supplemental Water Project with its Project of the Year award in the “Environmental>$15M” category. The project also received the APWA’s overall Project of the Year award. Orange County Mosquito and Vector Control District welcomes Rick Howard as general manager. Howard previously served as general manager of Discovery Bay Community Services District. Contra Costa Water District Board of Directors Division Three President Joseph L. Campbell has retired.

California Special District – March-April 2016

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!

The Hayward Area Recreation and Park District announces the appointment of General Manager Paul McCreary. McCreary succeeds John Gouveia who retired after 40 years of service.

The West Basin Board of Directors elected Director Carol W. Kwan as board president. Kwan has served with the board for 20 years. After serving five months as the interim chief executive officer of Northern Inyo Healthcare District, Kevin S. Flanigan, MD, MBA, has accepted a two-year contract to serve as CEO full-time. Ana Alvarez has been hired as the first deputy general manager of the East Bay Regional Park District. John Sutter, an East Bay Regional Park District board member for nearly 20 years, has retired. Tri-City Healthcare District’s CEO Tim Moran has been named 2016’s “Most Admired CEO” by the San Diego Business Journal. The annual award from the publication recognizes dynamic business leaders and role models, selected for their achievements and contributions to San Diego companies. Menlo Park Fire Protection District Board Member Rob Silano has been appointed board president and longtime board member Peter Carpenter has been appointed vice president.

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

Ask theExperts A property owner has said they are going to request the county combine three vacant lots into one and build one dwelling. This person feels that they would have one APN, so would be paying only one fee, that of an improved lot, thus deleting any fees for the other two lots. Can we set a policy that combined lots will continue to pay what they had been paying? In this case it would (after building) be one fee for one improved lot plus the amount of two vacant lot fees. We want to preserve the “share of cost” to all our property owners.

This question of lot combinations is not an uncommon problem, but there has not been an easy solution identified to fix it. It is especially thorny for older special districts, as the legal landscape has changed significantly in many instances. Note as an analog to your situation, most assessment districts or sophisticated Community Facilities Districts (CFD) typically have provisions to combine or pay off or pay down a lien to account for any such parcel combinations or changes. For pay-asyou-go models, this question was often ignored when the fees were implemented. A special district is provided with certain powers to set fees and levy assessments, so long as they comply with State law and the Constitution. Proposition 218 and 26 are in particular of note here. Tangential to this, is the fact that your county or city regulates parcels and building codes and related rules. This situation is unfortunately a “square peg round hole” one. 12

Rather than amend current policies and effectively try to implement the “square peg into the round hole,” it might be time to go back and develop a new policy and set of fees that account for differences in lot sizes, location, and other factors. This will allow adjustments for current conditions. Such a proactive move will bring your special district practices into compliance with current laws and generally-accepted practices. For 20 years NBS has provided focused financial consulting services to local governments, including special districts. The primary areas of focus are special financing districts (special assessments and taxes), utility rate studies, fee studies, cost allocation plans, and revenue consulting. NBS staff are steeped in issues of public finance, which include Proposition 218 and 26. More information can be found at nbsgov.com, or you can email Tim Seufert at tseufert@nbsgov.com.

BUSINESS AFFILIATE special acknowledgements

Accela Cloud-Based Technology www.accela.com

Kaiser Permanente Health Coverages www.thrive.kp.org

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

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

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

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

Streamline Website Design www.getstreamline.com

Five Star Bank Banking www.fivestarbank.com

Tyler Technologies Software Technology Services www.tylertech.com

Hanson Bridgett LLP Legal www.hansonbridgett.com

USC SOL Price School of Public Policy Higher Education www.usc-edu/schools

Jackson, DeMarco, Tidus, Peckenpaugh Legal www.jdtplaw.com

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

highlight Statewide Travel and Fuel Card Program Developed in partnership with the State of California, CSDA is proud to offer the enhanced Statewide Travel Program & Voyager Fuel Card for the most economical rates available for travel-related services, including airfare, car rentals, travel agency services, hotels, and fuel cards. This program features a payment system with no annual fees, interest charges, or late fees, and access to a convenient online booking tool. For more information or to apply, contact Jennifer Shaw, statewide travel program specialist, at 916.376.3977 or jennifer.shaw@dgs.ca.gov.

California Special District â&#x20AC;&#x201C; March-April 2016

In Brief Mountain Lion Study Underway in East Bay East Bay Regional Park District has partnered with Panthera, a nonprofit focused on conservation of cats and their ecosystems worldwide, to study the density of mountain lions in the area. Mountain Lions were a bounty animal in California until the mid-1960s, then were reclassified as a game animal, allowing hunters to hunt them for sport. They are now designated as a specially protected mammal - not quite to the point of being listed as endangered, but hunting them is now prohibited. As of February, nine individual mountain lions were identified in the 11-square miles where cameras are set up. The density is surprising to the researchers. In addition to determining how many mountain lions are in the area, the study will also work to determine if the animals are able to cross between the areas of land divided by interstates 580, 680, and BART tracks.

Fire District Secures New Rescue Unit Thanks to a sales tax measure approved by local voters, Lathrop Manteca Fire District has been able to fully restore its services and secure enough funding to establish a new rescue unit. The district took a hit when its county reassessed property values after the housing market collapse several years ago. The property taxes that funded the district reduced, leading to layoffs and reduced services. In 2012, nearly 80 percent of the area’s voters approved a one-cent sales tax increase, of which the district receives 40 percent. Since then, the positions that were laid off have been refilled, new ones have been created, and a rescue unit that will carry all of the tools necessary for specialized responses such as hazardous materials, vehicle extrication, and swift water rescue and recovery has been put in place. “I don’t see how else we’d be able to do it,” says District Battalion Chief Larry Madoski of the training and equipment the income has afforded. “There are a lot of different contingency plans that have to be in place (for the area) and we have a small administrative staff to handle all of that. It makes a big difference when you’re able to add something like (the rescue unit) to the equation.

Health Care District to Feature Story on Family’s History In an effort to share stories about its local community, and how the district’s hospital has helped it, Kaweah Delta Health Care District is searching for the family who has the most generations born at the hospital. The family will be featured in its Vital Signs magazine. The story will be about the family and incorporated into that there will be an aspect of how the district has been able to serve that family. Once the family is selected, staff will meet with them, document their story, and take photos. “Our message is to show (that) Kaweah Delta has been here for many years for people and as the population has grown, Kaweah Delta has grown to meet that need,” says Senior Communication Specialist Raymond Macareno. “Kaweah Delta was there when there were 7,000 people in the city of Visalia and now there’s 135,000 people and Kaweah Delta continues to grow.” 14

Air District Offers Free Emissions Testing San Joaquin Valley Air Pollution Control District partnered with Valley Clean Air Now to provide area drivers with a free vehicle emissions test. Drivers must have owned their cars for at least six months. If the vehicle failed the emissions test, but could be repaired, drivers received a voucher for up to $500 in emission-related repairs at participating STARcertified smog check stations. More than 15,000 cars have been repaired as a result of partnerships like this since 2003.

Sources: Calaveras Enterprise, Half Moon Bay Review, Manteca Bulletin, Marin Independent Journal, Oakland Magazine, The Porterville Recorder, Visalia Times-Delta

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.

Harbor District Supports Fishermen In the face of the closure of crab season, San Mateo County Harbor District has been working to provide support to the local fisherment affected. The prime crab feasting season of Thanksgiving, Christmas, and New Year came and went without much business for crab fishermen. “In 2014 (crab fishermen) sold 89 percent of their catch by January 1,” according to Harbor District General Manager Steve McGrath. He went on to explain that they’ve essentially lost 90 percent of their business this year. The district worked with the Half Moon Bay Seafood Marketing Association to draft a letter for elected officials urging them to provide some sort of assistance to the fishermen. In addition, the district extended the length of time the crab pots would be permitted in the harbor parking lot. “They can’t stay there indefinitely,” said McGrath, but the district will allow them until the space is needed when recreational salmon season starts.

Water District Prioritizes Endangered Species

Street Signs to Make Fire and Rescue Services Easier

Marin Municipal Water District must fell many native tanoak and live oak trees on its grounds, due to their afflictions with sudden oak death. This die-off increases fire danger as the trees with the disease die and dry. The trees, however, can be home to the federallyendangered northern spotted owls. The spotted owl was listed as threatened in 1990 as its habitat - old-growth forests - were increasingly logged. Marin’s lands host the densest recorded breeding populations of the species. In an effort to protect the species, the district has entered into a contract with Point Blue Conservation Science, which will monitor the species along the district’s grounds before any trees are removed. Monitoring will take place for the 2016 and 2017 breeding seasons.

In addition to these efforts, the district’s board of directors waived slip fees for its 39 permitted commercial crab fishermen who operate out of Pillar Point Harbor on the coast. Those fees will have to be repayed if federal disaster relief becomes available.

Firefighters and paramedics with Central Calaveras Fire and Rescue Protection District will now have an easier time finding necessary locations due to some new street signs in the area. Approximately 100 reflective street signs will be installed on private roads that were not previously clearly labeled. Some previously-existing signs were destroyed in the Butte Fire. In other cases, some roads never had signs, while signs on other roads were either difficult or impossible to find, especially at night. The district obtained a $15,000 grant from the Calaveras Community Foundation for the street sign project. The signs will be placed at every intersection where a private road meets a county-maintained road, and where private roads branch off of other private roads.

James Marta & Company LLP CERTIFIED PUBLIC ACCOUNTANTS

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California Special District – March-April 2016

Crucial Conversations Interview with Dr. Bob Jerome It’s a fact of life: Difficult conversations have to take place at times in order to accomplish what is necessary. These conversations can be challenging – how can individuals tackle an issue of contention and come to a point where a resolution is reached? Dr. Bob Jerome has experience with “crucial conversations” and talked to California Special District about that experience and his advice for handling them. Explain your background and experience working with public agencies. I’ve had had extensive experience working with public agencies with over 20 years of teaching and consulting a multitude of departments, bureaus, and boards in state government; plus, training cities, counties, and police departments staffs. With a background primarily in psychology and conflict resolution, I have taught at university levels and guest lectured the last few years at various universities and colleges; however, my focus has been with public officials.

You are experienced working with people at times where conflict, and even anger, are involved. What insights have you gained from this work? One of the insights I have found from my observations and interactions with people who become easily angered is that anger and conflict come from many sources. To simply say “this person is angry” oversimplifies things. One of the things I’ve learned is not to respond to the anger, but to analyze it a little bit and determine from where it comes. Some people use anger as a delay. As grandma used to say, “if you quit arguing about it, you could have it done by now,” and sometimes arguments and conflicts are just delaying tactics for when they don’t want to do something. Sometimes arguing can also be used as an avoidance of responsibility – an individual or individuals may be waiting for someone – perhaps management or the board - to say “just do it.” That then absolves them of all responsibility if any kind of failure or crisis then happens.

According to the research on crucial conversations, when some people get into a fight or flight syndrome from stress and anxiety, their brain has less oxygen going to it. Brain function goes into a certain portion of your brain that is the anger zone. At this point, that area of the brain has plenty of oxygen going to it but the rest of your brain is shut down. If i find people are getting angry and it’s escalating, the best thing to do is back off a little, change the tactic, change the topic, and change the approach.

How do you define a “crucial conversation”? Based on the book, Crucial Conversations: Tools for Talking When Stakes Are High, a crucial conversation is a discussion between two or more people where 1) the stakes are high, 2) opinions vary, and 3) emotions run strong. Crucial conversations are not techniques to win every argument or get your way or control other people. They are really about utilizing techniques to solve issues that arise between people or groups of people.

issues. Over 80 percent of people like their jobs; sometimes the conflict comes from the people they work with and not the jobs themselves. Crucial conversations can be used to help improve those situations.

What are the top three pieces of advice you would give to special district board members and staff when conducting crucial conversations? It’s hard to take it down to three but I’ll try to keep it focused. I think the number one thing is to stay focused on what you really want. What is the outcome you really want? Define that to yourself. This is not winning arguments and/or intimidating people or getting people to give in. It’s achieving something and solving a problem. So what we really need to do is identify what we want before we start the journey. Second would be to overcome what I call detours. People use rhetoric and/or attacking or withdrawing – as detours. Keep your cool when facing these. Keep your emotions under control. Don’t get pulled into the wrestling match. Continued on page 18

What are some crucial conversations you believe must take place in public agencies? Day to day personnel issues, allocation of resources, like budgets, and people overstepping authority are excellent examples of crucial conversations that must take place. Implementing mandates is another. Local governments are getting more and more mandates from the Legislature without necessarily the resources and/or directions in how to carry the mandates through. There is also the public relations part of crucial conversations. For example, overcoming negative attitudes from the public. Or perhaps someone is being unethical - hoarding information or resources – and that needs to be addressed. Sometimes it’s just working together and getting past personality

California Special District – March-April 2016

“Public service is a stimulating, proud and lively enterprise. It is not just a way of life, it is a way to live fully.” - Lee H. Hamilton

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Crucial conversations [continued] Third, avoid “either/or” thinking. Avoid thinking something is either all wrong or all right. Sometimes we have to find solutions in the middle. That’s called synergy - coming up with enough information that we may have to be able to change our minds about how to solve a problem. The world is not red and white – there is a lot of pink. I’ll give you a bonus. Number four is to look for a mutual purpose. Not everyone always totally disagrees about something. There are a lot of times when they’ll have a mutual purpose and it’s just dialog that gets in the way. An example is, on a water board, you are there to protect resources and provide clean drinking water to the public. Maybe sometimes you have differences on how to approach that or allocate what resources to whom but you do have a mutual purpose. Sometimes that can be forgotten and we can think that somebody or something is all wrong or all right.

Should the approach be different when working internally versus when working with the public? That’s an interesting question and the answer is yes. The crucial conversation approach works in both situations but internally there are people you have a history with. Internally you have people with agendas that you may not even be aware of. Externally I think we have to avoid lecturing and get past our assumptions about people. Avoid the “us against them” mentality, which internally you don’t necessarily have. We have to avoid operating from a place of “they don’t know what we do.” Also, people from the public have a tendency to have a different agenda. Certain people out there buy into the whole anti-government, anti-regulation, anti-taxation view with government at all levels - and they can be painted with that preconceived notion. Sometimes we have to overcome that and look for common ground with them. Don’t be defensive.

You often speak on using humor to deal with difficult situations. Can humor come into play when holding difficult conversations? If so, what advice do you have for how to handle humor in these circumstances? Humor has its place. And in the middle of a crucial conversation, I don’t think you need to necessarily be cracking jokes. Humor can mean, to me, not taking yourself too seriously. The sun didn’t rise this morning just to light my way to a meeting. I like self-effacing humor - not necessarily putting yourself down - but letting people know you are not a know-it-all. I’m careful with humor although I like it and think it can be used to connect with people. They say the shortest distance between two people is a smile. In America we usually use humor as a weapon - to make fun of others - and that’s why we have to be extremely careful. Even when we mean things as a joke, it’s how people interpret it that matters.

California Special District – March-April 2016

How can participants in difficult conversations effectively and productively speak and be heard? I’m going to throw out one thing that I think is probably the crux of all of this. If you show respect to people - if you listen to them (and that is ultimate respect) - if you pay attention, and let them know you are listening to them, then in many cases, out of a sense of fairness, people will listen to you. You are sometimes going to have to make that deal. Negotiate: “I’m more than happy to hear your point of view. In fact it is welcome, I’d like to hear it, but I’d also like you to hear mine.” That style of approach makes people feel safe that you’re not going to “attack” them. You’re not going to try to talk them into something that they don’t want to do. That you’re just sticking to information or facts or even giving your opinion without attacking theirs.

See Dr. Bob Jerome speak on “Crucial Conversations: Tools for Communicating When Stakes are High” at the General Manager Leadership Summit, June 12-14 in North Lake Tahoe.

True Success:

The Art of Achievement in Times of Change Tom Morris

Some people seem successful in nearly everything they do. Others struggle constantly, almost regardless of the situation. What makes the difference? What do the most successful people have in common that helps lead to their accomplishments?

From Plato and Aristotle to the present day, the wisest people who have ever thought about life achievement have left us bits and pieces of powerful advice for attaining true success in nearly anything we do.

I’ve come to believe that there is something like a personal and organizational toolkit for success. From Plato and Aristotle to the present day, the wisest people who have ever thought about life achievement have left us bits and pieces of powerful advice for attaining true success in nearly anything we do. I’ve put these great ideas together into a simple framework of seven universal conditions for success. Let me lay them out in the simplest possible way, and then we’ll briefly look at what they mean.

The 7 Cs of Success

For the most deeply satisfying and sustainable forms of success, we need to bring into any challenge, opportunity, or relationship these inner traits, or conditions: (1) A clear CONCEPTION of what we want, a vivid vision, a goal clearly imagined. (2) A strong CONFIDENCE that we can attain that goal. (3) A focused CONCENTRATION on what it takes to reach the goal. (4) A stubborn CONSISTENCY in pursuing our vision. (5) An emotional COMMITMENT to the importance of what we’re doing. (6) A good CHARACTER to guide us and keep us on a proper course. (7) A CAPACITY TO ENJOY the process along the way.

There are certainly many other concepts often associated with success, but I’m convinced that every other one of them either falls short of the universal applicability test or else is just a version or application of one of these seven in specific situations. The seven Cs give us the most universal, logical, integrated, and comprehensive framework for success in whatever we do. I’d like to share a quick word about each. We need:

(1) A clear CONCEPTION of what we want, a vivid vision, a goal clearly imagined. In any facet of our lives, we need to think through as clearly as possible what we want to accomplish, and what we’d like to see happen. True success starts with an inner vision, however incomplete it might be. The world as we find it is just the raw material for what we can make it. We are meant to be artists with our energies and our lives. And the only way to do that well is to structure our actions around clear goals. Vague thoughts cannot motivate specific behavior. We need clear goals, as precise and specific as we can make them. In times of change, this is more important than ever, however difficult it might seem. The fight for clarity in our vision for what we want to make happen is well worth the ongoing effort it takes. Two great pieces of advice on goal setting come down to us from the ancient world. First, every exercise in goal setting should be an exercise in self-knowledge. “Who am I as a person? What’s right for me? Who are we as a business? What’s right for us?” Second, we need inner boldness in setting new goals, bigger goals, and realizing that our goal setting should never stop. Life is supposed to be a series of adventures. Great goals make for great adventures.

(2) A strong CONFIDENCE that we can attain the goal.

Inner attitude is a key to outer results. Over a century ago, Harvard philosopher and psychologist William James learned from championship athletes that a proper confidence should be operative in all our lives. In any new enterprise or challenge, we need upfront initial faith in what we’re doing. And we need resilient confidence, confidence that can take its lumps and keep on going. James called it precursive faith – faith that “runs ahead of” the evidence. Sometimes we may have to work hard to generate this attitude. But it’s also well worth the work it takes, because it raises our objective prospects for success. The best confidence naturally arises out of competence and then augments it. It’s of course no guarantee of success. But it is among the chief contributors to it. In times of great change and economic uncertainty, confidence is one of the first things to disappear. We should follow the champions and guard it in our hearts. If you find that you need help with confidence, try to help someone else with it, and you may be surprised how it quickly rises in your own spirit. Continued on page 22

California Special District – March-April 2016

The Art of Achievement [continued]

(3) A focused CONCENTRATION on what it takes to reach the goal. Big dreams just lead to big disappointments when people don’t learn how to chart their way forward, step-by-step. And one of the greatest pieces of advice ever given about achieving any big dream is to “divide then conquer.” Divide it up, break it down, and then take it on, step by step. If I want to be at a certain point a year from now, where do I have to be six months from now? How about three months from now? What can I be doing today and tomorrow? Daunting goals become manageable objectives as we divide and

conquer. Focus on what’s first, then on what’s next. Success at anything challenging comes from planning your path and then putting that plan into action. Gestalt psychologists even teach us that a new mental focus generates new perceptual abilities. Concentrating your thought and energy in a new direction, toward a clear goal, you begin to see things around you that you might have missed before – things that relate to the goal you’ve set and can help you attain it. This focus can allow you to set intermediate goals and then more immediate ones to get your plan going, and then act, and adjust as you go. Even a flawed plan can start you off and help lead you to where you can discover a better one. A continually focused concentration of thought and action is key.

(4) A stubborn CONSISTENCY in pursuing our vision.

The word “consistency” comes from two Greek roots, a verb meaning “to stand” and a particle meaning “together.” Consistency is all about standing together. Do my actions stand together with my words? Do my reactions and emotions stand together with my deepest beliefs and values? Do the people I work with stand together? This is what consistency is all about. It’s a matter of unifying your energy and efforts in a single direction. Chinese philosophers call it harmony and use the image of moving water, which can flow around any obstacle or push it out of the way. They say, “Be like water.” Flow forward to your goals, adapting to your circumstances and, at the same time, staying true to the essence of who you are, and making sure that your actions are harmonious with what you most deeply want. Inconsistency defuses power. Consistency moves us toward our goals.

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(5) An emotional COMMITMENT to the importance of what we’re doing.

Big enough to have all the needed expertise. Small enough to focus on your needs.

Passion is the core of extraordinary success. It’s a key to overcoming difficulties, seizing opportunities, and getting other people excited about your projects. Too much goal setting in the modern world has been all about thoughts, and has ignored the feelings and passions. Philosophers appreciate the role of rationality in human life. But we know that it’s not just the head, but also the heart, that can guide us on to the tasks right for us, and keep us functioning at the peak of our abilities.

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Find a way to be passionate in what you do, then communicate that enthusiasm and commitment to the people you work with, showing that you are also committed to them as your partners for the goals you have together. People are attracted to people who care. You’ll all go far as a result.

(6) A good CHARACTER to guide us and keep us on a proper course.

Character inspires trust. And trust is necessary for people to work together well. Good character is required for great collaboration. In a world in which innovative partnerships and collaborative strategies are increasingly important, the moral foundation for working well together matters more than ever before. And good character does a lot more than just provide for trust. It has an effect on each individual’s own freedom and insight. Bad character not only corrupts, it blinds. A person whose perspective has been deeply twisted by selfishness or dishonesty or cowardice cannot understand the world in as perceptive a way as someone whose sensibilities are ethically well formed. Good character makes sustainable success more likely. And good character makes you a persuasive person when working with others. Aristotle said that to be a great salesperson, to be convincing with others, you need to be a master of three things: logos, pathos, and ethos – logic and information; passion and emotion; character and integrity. This is the foundation for long-lasting success.

(7) A CAPACITY TO ENJOY the process along the way.

The more you can enjoy the process of what you’re doing, the better the results tend to be. It’s easier to set creative goals. Confidence will come more naturally. Your concentration can seem effortless. Consistency will not be a battle. The emotional commitment will flow. And issues of character will not be as difficult

California Special District – March-April 2016

to manage. A capacity to enjoy the process is entwined with every other facilitator of success in a great many ways. When you can relish the journey, you’ll be surprised by the results. These conditions of success are all deeply connected. They constitute a unified framework of tools with which we can work our way toward the most fulfilling forms of achievement in our world. When you’re considering a new goal, use all seven conditions as a test. Can I form a clear conception of this as a goal? Can I pursue this with confidence? Ask yourself questions like this for each condition. If the potential new goal passes the test, then full speed ahead! If it doesn’t, you need to find a new goal! And once you have a proper new target to shoot at, use these conditions as tools to get you there. The seven Cs aren’t magic, but they’re magnificent inner resources for outer success in the world. They will help us to make our proper mark in everything we do. They will move us in the direction of true success, deeply satisfying and sustainable achievement. Why should we ever settle for anything less? I hope you soon get to see my new book that supports these ideas and goes even more deeply into the wisdom we need for happy and successful lives. The Oasis Within is the story of a trip across the desert in Egypt in 1934. An old man is traveling with his nephew and they begin to talk about life. The entire story came to me as an unexpected daydream, and I quickly wrote all that I was seeing and hearing. It’s now my twentieth book, and by far the most enthusiastically received by readers. It’s also the prologue to a big new epic series of books that has also begun to see print with the story, The Golden Palace. At least eight books will portray and reinforce some of the greatest wisdom available to us as we live our lives and do our work in this world of stiff challenges and wonderful opportunities.

Tom Morris is the author of such books as True Success, The Art of Achievement, and If Aristotle Ran General Motors. His new series of wisdom novels has now begun to appear in print and ebook form with his most highly praised book yet, the short novel The Oasis Within, followed by The Golden Palace and The Stone of Giza. This new series of at least eight books has been described as “The Alchemist Meets Harry Potter Meets Indiana Jones” and as being packed with the most wisdom for living ever seen in novel form. You can learn more at TomVMorris.com and at TheOasisWithin.com.

See Tom Morris speak on “True Success: The Art of Achievement in Times of Change” at the General Manager Leadership Summit, June 12-14 in North Lake Tahoe.

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[Solutions & Innovations]

Social media Q&A for special districts By Traci I. Park & Kelly A. Trainer, Burke, Williams & Sorensen, LLP

If our district has a Facebook page and a citizen makes a negative comment about a board member, can we just delete the comment? Removal of comments on social media pages will raise First Amendment issues for a public entity. It is entirely possible that such comments, even those critical of the district, are protected free speech. While there are some steps a district can take to limit the First Amendment protections afforded online speech, many districts have failed to put such policies in place.

The impact of social media in the public workplace continues to raise questions more rapidly than courts can provide answers. As one question is answered, new legal issues and forms of social media emerge to raise new questions. Traci Park and Kelly Trainer, with the law firm of Burke, Williams & Sorensen, LLP, are aware of the questions arising in regard to social media. Here, they’ve worked to answer some of the most popular questions. What kinds of things should be in my district’s social media policy? Among other things, a good social media policy specifies that the district intends to create a limited public forum subject to the district’s and host site’s terms of use. The terms of use should be visibly displayed on each social media site or made available by hyperlink. Who should be included on a social media policy development team? The policy development team should include human resources, IT, and a district’s legal professionals, with input from individual departments as appropriate.

Is the content on the district’s social media site subject to the Public Records Act? The California courts have not yet applied the Public Records Act to social media content. However, there is a possibility that a court would find that content posted on a district’s social media site does not have a material impact on the conduct of official district business, is not necessary for the discharge of public duties, and is not made for the purpose of preserving informational content for the future. A district should include language stating the district’s position on whether such material will be retained in its policy. Can a district have a policy regulating an employee’s own personal use of social media? Yes. Among other provisions, the policy should remind and caution employees that information posted on a social media site is not private and may be used as evidence in administrative or legal proceedings, and any employee use of social media in a manner that violates district policies may be grounds for disciplinary action. However, districts have to carefully draft such policies to ensure they do not violate any laws, such as applicable labor relations statutes or the First Amendment. Can we prohibit employees from accessing social media sites on district equipment? Yes. A district’s own electronic communication devices, including computers, tablets, and smart phones, are the sole property of the district, and the district can regulate

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.

the use of such devices. Many employers have elected to block access to social media sites on employer-owned devices and networks. Can I use social media to screen applicants? While it is not strictly unlawful to use social media to screen applicants, there are significant legal risks in this practice. Managers are likely to gain information about protected characteristics, such as age, race, sexual orientation, or religion, which can form the basis of a discrimination lawsuit. Districts should also determine whether use of information obtained online, and outside the regular recruitment process, would violate internal rules and policies on recruitment. Districts should also remember that information obtained online is inherently unreliable.

capacity in which the employee was speaking, the content and context of the speech, and the impact the speech had on the district. Find out more on this topic by visiting our website at www.csda.net. Is information posted on a social media site private? Most likely not. Even when privacy settings are in place, there is never a guarantee that anything someone posts online will be private or remain with an intended limited audience. Indeed, a theme being repeated in appellate decisions across the country is that users have no expectation of privacy in any social media website. To the contrary, many courts routinely conclude that using social media is the opposite of expecting privacy. According to one of the first decisions in California, no reasonable person who takes the affirmative act of posting information on a social media website has an expectation of privacy.

Can I use social media evidence against an employee in disciplinary proceedings? Such evidence is generally appropriate in disciplinary proceedings, but districts should consult with legal counsel as disciplinary proceedings are highly factual in nature. Can I discipline an employee for comments he/she makes on social media? It depends. Employee comments on social media can be entitled to protection under a number of laws, including the First Amendment, labor relations statutes, and whistleblower statutes. If the comments are protected, then an employee should not be disciplined for them. Whether the comments are entitled to protection is a fact-specific analysis regarding, among other things, the

California Special District – March-April 2016

Join authors Traci Park and Kelly Trainer of Burke, Williams & Sorensen, LLP at General Manager Leadership Summit June 12-14, where they will be happy to answer any additional questions you have in their session, “Keep Calm and Update Your Status: Emerging Trends In Social Media.”

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[Community Connections]

West Side Cemetery District performs restoration on old Midway Cemetery By Joel Bauer, District Manager, West Side Cemetery District

When West Side Cemetery, located in Taft, California, was formed in November 1930, there was a small cemetery already in place serving the area. That cemetery was known as Midway Cemetery. Midway Cemetery was established in 1911 by Taft Undertaking Company under the direction of William Brook and later C.W.Witherow. The Midway Cemetery operated for the next 20 years and was then condemned by the State. It was at this time the Midway Cemetery was deeded to West Side Cemetery District. Burials continued there until the West Side Cemetery was opened for business in 1933. There were

a few burials that took place at the old cemetery over the next several years, with the final burial to take place in 1951. Over the years there have been small attempts to restore the cemetery - the first in 1950 when a survey map was created. The Native Daughters, an American non-profit organization for women born in California, installed copper markers on the graves. The groupâ&#x20AC;&#x2122;s work at the cemetery came out of its desire to focus on the care and preservation of California history, and group members worked diligently to repair the cemetery fencing, install the markers â&#x20AC;&#x201C; over half of them with names of the deceased (no small feat) - and paint the concrete posts outside of the cemetery fence. By 1969,

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.

bearing the name of the individual buried there. Guy approached me in 2013 with the latest edition of a records book that he and Ann, Fred, and Larry had been compiling throughout the process, in hopes that I could have some sort of markers made with the correct names to replace the unknown markers. Having been employed with the West Side Cemetery District for the past 18 years and the district manager for the last eight, I felt that although the Midway Cemetery has never been mismanaged or neglected, it didn’t have the reverent feel a cemetery should have. This was something I had talked with the board of trustees about during our five-year strategic planning. The board also felt that we could do something to improve the Midway Cemetery and it was slated as part of the plan for improvements to be made. however, all the copper markers had deteriorated and a second restoration was necessary. The second restoration was at the efforts of the Kern Genealogy Society. In this instance, a local painter and craftsman, Bob Weins, painted wooden grave markers. Eventually, however, the weather and desert sun, took their toll on the markers.The original cemetery had large mason pillars at each corner and smaller ones placed sporadically around the cemetery, with cable stretched through them to create a fence. Unfortunately, in 1974, about half of them were removed and destroyed to make room for a new chain link fence around half of the cemetery, where most of the graves are located. By 1984 it was time to attempt a third restoration. This effort was undertaken by then West Side Cemetery District (WSCD) Manager Harold Wagner. Time had taken its

toll on most of the grave markers and records were unclear and missing, making it very difficult to determine who was buried where. Small, simple concrete grave markers bearing the word “Unknown” were placed on 209 of the 464 graves. It gave the cemetery a finished look but there was an aspect of sadness that the names had been lost. Not long after the third restoration, Taft Genealogy Society began to research and transcribe records from the Taft Undertaking Company. This became a personal project of Fred Thomason, Larry Lyon, and Guy and Ann Lingo. The project has taken nearly 30 years and has seen the demise of Fred and Larry; however, Guy and Ann have remained diligent and have been able to identify all but seven of the graves. It was during this process that they were able to get some funding and replaced several of the grave markers with granite markers

California Special District – March-April 2016

One of the motivating factors for this project was that Taft hosts a founder’s celebration every five years. This event is called “ Oildorado,” and it’s a 10-day affair. The event celebrates the history of Taft and is primarily focused on the history of oil and all the people who Continued on page 30

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Community connections [continued] played a part in making Taft what it is today. The board and I thought this would be a good time to get the community involved in the restoration project, hoping to attract some volunteers and donations to help with the project. I approached the Oildorado committee with this idea and received overwhelming support of the idea; however, because of the timing it would be difficult to raise funds, and many people were already involved in other projects. My next move was to address the Chamber of Commerce and several of the local service groups. All thought it was a good idea and the groups wanted to help in any way they could. At the March 2015 WSCD Board meeting, I reported my findings. The board asked me what I was hoping to accomplish and the approximant cost. I laid out my ultimate plan of replacing the still-missing 178 head stones, removing the old fence and replacing it with a wrought iron fence setting atop a 1 foot concrete retaining wall, covering the entire cemetery in one-inch gravel three inches deep, replacing the old homemade flagpole with a new polished aluminum pole, building an entry gate with an arched sign above it bearing the cemetery name, and grading and graveling the easement approach road. Now, without hiring any outside help and doing the complete project

in-house, my estimated cost was $50,000 and it would take about three years to complete. The board chose to allocate $50,000 and directed me to do as much as possible before the Oildorado Celebration in October. The next day I began to recruit volunteer help, again approaching the local service clubs and Chamber. I received a call from a friend, Dr. Sterling Bryan, asking if I would be interested in letting a young man, Tanner Melton, make this his Eagle Scout project. I agreed to meet with him in hopes that he could do some part of the project, such as removing the old fence. Tanner came to my office, with his parents in tow, to go over what I was hoping to accomplish. After I laid out the plan, and spent some time talking with Tanner and his parents, they were excited to be a part of the restoration. Tannerâ&#x20AC;&#x2122;s family owns a local construction company and wanted to help in any way possible. Together with Steve Melton (Tannerâ&#x20AC;&#x2122;s dad), we put a plan together with a target date of October - in time for the Oildorado Celebration. Several local businesses wanted to contribute: General Production provided gravel at cost, Visalia Granite provided headstones at a reduced cost, Iron Fencing Shop provided fence at a reduced cost, WSCD staff helped with concrete finishing and welding the new fence in place, Taft Union High School Welding Class made the arched sign, and Jerry Melton & Sons Construction

Company supplied equipment and hundreds of hours of labor at no cost. Under my watchful eye, Tanner coordinated the process. He set up a community work day, which yielded 71 volunteers complete with shovels and rakes in hand, and 640 tons of gravel was spread over the entire cemetery in seven hours. On October 13, 2015, West Side Cemetery District had a rededication event at the Midway Cemetery, complete with the local high school band, a singer, bugler, flag raising, and speakers. Among the speakers was Ryan Shultz, a representative from the 4th District Supervisor, who presented Tanner with a proclamation. He also presented West Side Cemetery District with a Certificate of Recognition of the dedication ceremony for improvements at the Midway Cemetery, and for exemplary public service and civic contributions to the community and Kern County. It was signed by all five county supervisors.

In addition to all the volunteer labor, there were several monetary donations made. Because of all the effort, we were able to do a restoration valued at approximately $120,000 for just under $48,000.

I was amazed at the outpouring of community involvement. In addition to all the volunteer labor, there were several monetary donations made. Because of all the effort, we were able to do a restoration valued at approximately $120,000 for just under $48,000. The Midway Cemetery is now a beautiful, reverent resting place for those early pioneers of Taft that the community is proud of. The West Side Cemetery Board, staff, and district manager are honored and pleased to have been able to leave this as part of our legacy.

California Special District â&#x20AC;&#x201C; March-April 2016

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Legal Brief Medical Marijuana in the Workplace: A Legal Overview and Practical Suggestions for the Future By Gina M. Roccanova, Principal, Meyers Nave

In the twenty years since medical marijuana became legal in California, public acceptance of both medical and recreational uses of the drug has continued to increase. A 2015 poll conducted by the Public Policy Institute of California found that 56 percent of likely California voters favored legalization of recreational marijuana – a record high. A study conducted by the Survey Research Group at the Public Health institute in Sacramento, and published in the journal Drug and Alcohol Review in 2014, estimated that 1.4 million Californians – nearly five percent of adults in the state – have used medical marijuana. With this degree of prevalence, it is now more likely than ever that California employers will have to confront issues of medical marijuana in the workplace. What does this mean for California employers?

The Current State of the Law The California Health and Safety Code explicitly states that employers do not have to permit the use of marijuana in the workplace or during work hours (Health and Safety Code section 11362.785(a)). In 2008, the California Supreme Court addressed the issue of whether an employer must accommodate any use – even off-duty at the employee’s home - of medical marijuana by an employee. Ross v. RagingWire Telecommunications, Inc. involved a claim by a disabled employee who used medical marijuana as recommended by his physician to alleviate pain from a back injury. Before submitting to a required drug test, the employee provided his employer with a copy of his physician’s recommendation that he use medical marijuana. Based on the results of the drug screen, which unsurprisingly showed evidence of marijuana use, the employee was fired. He sued, alleging that his termination violated the provisions of the Fair Employment and Housing Act

prohibiting disability discrimination. He also claimed that his termination violated public policy as articulated in the Compassionate Use Act, the 1996 voter initiative that eliminated criminal penalties for physicianrecommended marijuana use. The state Supreme Court upheld the lower court’s dismissal of the plaintiff’s claims, holding that (1) FEHA did not require employers to accommodate the use of illegal drugs, and marijuana was still illegal under federal law; (2) while the Compassionate Use Act eliminated state criminal penalties for medical marijuana use, it said nothing about employment law; and (3) the public policy of the state, as articulated in the Compassionate Use Act, did not prevent an employer from firing an employee for medical marijuana use. Given the statutory language, the clarity of the Court’s decision in Ross, and its apparent staying power, one might assume that employers need not worry about this issue. And certainly they are within their rights to maintain a policy that prohibits any use of marijuana, on or off duty, by their employees. That said, as attitudes toward marijuana continue to evolve, and with numerous new ballot initiatives circulating for signatures, employers may wish to plan ahead for further changes and consider other alternatives.

For more information on this topic, attend the session, “Medical Marijuana in the Workplace: Sorting Through the Legal Haze”, at the General Manager Leadership Summit this June. Practical Approaches to Medical Marijuana Use by Employees 1. Don’t Ask, Don’t Tell As discussed above, there is clear statutory language stating that employers do not have to accommodate medical marijuana use at the workplace or during work hours. This language presents an opportunity for employers to adopt a more liberal attitude toward off-duty use: as long as an employee does his or her job, meets the employer’s standards, and is not impaired or using marijuana in the workplace, then what the employee does on his or her own time remains his or her own business. Indeed, unless an employer subjects employees to drug testing, this is essentially the default position. And drug testing is limited to the following circumstances: (1) where federal Department of Transportation (DOT) regulations require it; (2) as part of a pre-employment screening program applied to all applicants; (3) reasonable suspicion testing; (4) post-accident testing; (5) as part of a legitimate, job-related medical screening; or (6) as part of a random screening program for safety-sensitive positions. In the appropriate circumstances, this may be the simplest and most workable approach. 2. Treat It Like Prescription Opiates Another logical approach, albeit one that goes well beyond what is required by law, is to treat medical marijuana like any other prescription drug that may impair an employee’s physical and cognitive capacity. Such an approach would of necessity have to include the following safeguards: 1. A requirement that employees disclose any circumstance, including any medication, that may jeopardize their ability to safely perform their jobs; 2. Any use of medical marijuana cannot directly impact other employees. It is not reasonable to expect co-workers to be subjected to second-hand smoke, for example, so smoking marijuana should not be permitted anywhere that smoking tobacco is prohibited. 3. It cannot place the employee, co-workers, members of the public, or other third parties in danger. Employees who are impaired, regardless of the substance, should not be operating heavy equipment or motor vehicles. 4. It cannot unduly jeopardize the quality or quantity of an employee’s work. If an employee who uses medical marijuana - or any other medicine for that matter – cannot keep up with his or her work, then that is an issue that must be addressed regardless of the cause.

California Special District – March-April 2016

Obviously, this approach will not work with DOT-covered positions, and may not be suitable for other safety-sensitive or public protection positions. But here again, depending on the nature of the work, the culture of the workplace, and the standards of the particular community you serve, this framework may appropriately accommodate the changes that may be looming just over the legal horizon. Gina Roccanova is a principal at Meyers Nave and Chair of the Labor and Employment Practice Group, where she serves public clients in negotiations, counseling, litigation, and arbitration. Meyers Nave is a full-service law firm with six California offices that serves a diverse range of public agencies and institutions utilizing a deep command of government and regulatory frameworks and formidable courtroom skills to achieve results in even the largest and most challenging matters.

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anaging Risk

Dangerous condition of public property liability exposures When a public entity opens up its recreational facilities or is responsible for the maintenance of public roads, the primary theory of liability against a public entity is the Dangerous Condition of Public Property statute. California Government Code §830 states: As used in this chapter:

(a) “Dangerous condition” means a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used. (b) “Protect against” includes repairing, remedying or correcting a dangerous condition, providing safeguards against a dangerous condition, or warning of a dangerous condition. (c) “Property of a public entity” and “public property” mean real or personal property owned or controlled by the public entity, but do not include easements, encroachments and other property that are located on the property of the public entity but are not owned or controlled by the public entity. §835. Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either: (a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or (b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.

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Two recent cases confirmed the statutory immunities that public agencies can take advantage of in the defense of these type of injury claims.

Supreme Court Approves Public Entity Design Immunity Defense Randall Keith Hampton, et al. v. County of San Diego Supreme Court of California (December 10, 2015) In California, a public entity can be liable for injuries caused by dangerous conditions of public property – including roads. However, the public entity may sidestep liability by asserting design immunity. In order to successfully assert this defense, three elements must be proven: (1) there is causal relationship between the design and the accident; (2) the entity made a discretionary approval of the design; and (3) substantial evidence supports the reasonableness of the plan, as discussed in Government Code § 830.6. In Hampton v. County of San Diego, the Court addressed the second element, concluding that the discretionary approval element “does not implicate the question whether the employee who approved the plans was aware of design standards or was aware that the design deviated from those standards.” The public entity is not required to prove in its case that the employee

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

who made the discretionary approval had authority to disregard applicable design standards. The Court’s discussion is a broad affirmation of the discretionary approval provided by a qualified official (often a design engineer) of a reasonable design. In Hampton, the plaintiff was injured in a collision between his vehicle, which was attempting a left turn, and another vehicle on a two-lane thoroughfare. The claim against the County, a public entity, was that the design and construction of the intersection where the accident occurred afforded inadequate visibility and failed to meet applicable county design standards because it did not describe, depict, or account for an embankment along the thoroughfare that impaired visibility. The County presented evidence that the design standards contemplated that drivers would “creep forward” after stopping at the stop line to improve visibility before making a turn, thus eliminating the impairment caused by the embankment. The County moved for summary judgment. Plaintiff contested whether the County had met the requirements for discretionary approval because the design did not depict the embankment and visibility did not meet county standards. The trial court granted summary judgment to the County, and the appellate court affirmed. The Supreme Court also affirmed, holding that, in evaluating discretionary approval, trial courts are not to consider whether the approving engineer was aware of design standards or that the design in question met those standards. The rationale for this lies with the legislative intent of avoiding having a jury re-examine and secondguess governmental design decisions at trial. Allowing such a re-examination California Special District – March-April 2016

Consultants

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

would defeat the purpose of the design immunity, i.e., giving the jury the power to make its own decisions where public officials have been vested with authority to act.

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 Debra Yokota, Claims Manager Heather Thomson, CPA, Finance 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

of a discretionary choice, but goes to the reasonableness of the design. Comment

For both legal and practical reasons, a trial court can consider whether the approving official, knowingly or unknowingly, approved the plans under the third element — the reasonableness of the design. On a practical point, the Court recognized that the reasons and motivation of the approving official would likely be unavailable, as design immunity defenses often occur many years after approval, forcing the entity to rely on distant memories. Furthermore, the allegation that the officials applied the wrong standard does not divest an entity

For public entities, this case serves two purposes. First, it is a strong affirmation and endorsement of design immunity. The Court’s approval signaled that the public entity’s deliberative process and decision making is not open to interpretation and second-guessing by the jury. Second, the design immunity defense is only available if the entity has design plans and as-built plans that reflect what was actually constructed, and plans show that there was discretionary approval by the entity. Continued on page 42

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Money Matters Preparing for a successful audit of your special district By Justin Williams, Mann, Urrutia, Nelson, CPAs and Associates, LLP

It is a common misconception that auditors are out to “get” their clients by exposing all of their flaws. Ideally your auditor should be viewed as a resource, not an adversary. An annual audit is an irreplaceable tool to ensure that your financial systems and procedures are in order. With open communication and the right preparation, special districts can move through a financial audit seamlessly. Below are seven key components to a successful audit:

CSDA F C

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1) Select the Right Auditor By now you have likely selected an auditor or you are in the process of doing so. When engaging an auditor, be sure to look for one who: • Has a good reputation, and is able to provide solid peer review history and references. • Adds value to your organization by providing insight on best practices and emerging issues. • Is experienced with rules and regulations governing California special districts. • Commits to reasonable deadlines and fees. • Is licensed to perform Yellow Book Audits in California. Upon selection, your auditor will provide an engagement letter, which includes standard language outlining fees, audit timeline, and client and auditor responsibilities. Be sure to address any questions you

Officers

Jo MacKenzie, President, Vista Irrigation District Paul Hughes, Vice President, South Tahoe Public Utilities District Steve Perez, SDA ,Secretary, Rosamond Community Services 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

have regarding the engagement letter before moving forward. You may also consider having your attorney review the engagement letter prior to signing. At the beginning of the audit, the auditor should also provide the district’s governing body with a letter in accordance with the American Institute of CPA’s Statement of Auditing Standard No. 114, which further addresses client and auditor responsibilities. 2) Ask Questions Your auditor can serve as a resource for insight into the effects of unusual accounting transactions. If you call your auditor prior to the audit, he or she can direct you toward the correct accounting treatment the first time, rather than proposing journal entries to correct your mistakes during the audit. If you are considering a new transaction, your auditor likely has information to help you analyze the implications of the transaction before it occurs. Particularly when implementing complex new accounting guidance, such as Government Accounting Standards Board Statement No. 68 (GASB 68), your auditor has access to implementation guides that contain sample journal entries and footnote disclosures to provide clarity and direction. 3) Establish Logistics One of the most important factors to the success of your audit is establishing a clear timeline for meetings, fieldwork, and audit deliverables before the audit begins. Establish due dates for draft financial statements, final financial statements, and presentation to the board of directors. Discuss which personnel the auditors will need to meet with during the course of the audit, and arrange meetings with busy executive personnel in advance. Schedule audit fieldwork during weeks when key accounting staff members will be accessible to the auditors. For your final audit fieldwork dates, allow enough time after your fiscal year-end date to give your accounting team ample time to properly close the books, as well as prepare for the audit. Continued on page 38

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

Low Interest Rates Still Available through CSDA Finance Corporation

For special districts and other local agencies, now is a very good time to consider moving ahead with planned capital improvement projects or refinancing prior debt. In 2015, the CSDA Finance Corporation facilitated financings totaling more than $20 million for special district projects and purchases. Below are some examples of recently closed financings: Rancho Simi Recreation & Park District Administration building - $7,500,000 Emerald Bay Service District Capital projects - $5,000,000 Feather River Recreation & park District Refinancing - $4,000,000 Bodega Bay Public Utility District System improvements - $3,955,000 East Niles Community Services District Land purchase - $285,000 Aromas Water District Solar installation - $280,000 If your agency has a financing need, now is the time to take advantage of interest rates before they go up. Contact the CSDA Finance Corporation for a no-obligation quote today at 877.924.2732 or www.csdafinance.net.

California Special District – March-April 2016

Money matters [continued] 4) Prepare Audit Documentation Districts can minimize errors and omissions by being proactive in preparing audit documentation. Request a PBC list (Prepared by Client) early to give your accounting staff ample time to prepare. Review the PBC list and ask your auditor for examples or templates for requests that are unclear. Keep your accounting records neat. Auditors presume that where there’s smoke, there’s fire. The more disorganized accounting records are, the deeper the auditors will dig to find errors. If an unusual transaction occurs, retain documentation related to your decisionmaking process to avoid additional time spent searching for underlying records. A key step to avoid audit surprises is to perform a selfaudit of your year-end statement of net assets. Most auditors will request support for nearly every line item on the statement of net assets. Be ahead of the game by having the following schedules prepared in advance of the audit: • bank reconciliations for all cash accounts. • accounts receivable and accounts payable aging reports. • inventory detail listing. • prepaid asset and accrued liability schedules. • fixed asset roll forward schedule. • long-term debt roll forward schedule. Prepare these schedules early. Designate a second individual in your accounting department to review and sign off on each schedule. Give special attention to large transactions, but know that the auditor may select any item from the schedule detail for further testing. 5) Communicate Internally Lack of communication between departments can slow down the audit process significantly. For example, some requested payroll documentation may come from the payroll department and some from the HR department. Many organizations retain P.O.’s and receiving documents separate from paid invoices. It is advantageous to bring all participants in transaction cycles into the loop to make sure documentation provided to auditors is complete.

6) Implement Auditor Recommendations It can cause contention when an auditor makes a recommendation that seems trivial to your operations. Keep in mind that auditor recommendations are intended to steer your district toward best practices. Implementing them demonstrates the district’s transparency and good faith commitment to the public interest. If there are obstacles to implementing recommendations, discuss these with the auditor to arrive at a suitable alternative. Recommendations are part of the process, and, typically, changing your auditor will not cause recommendations to disappear the following year. 7) Adopt New Standards Your auditor should be discussing the implementation of new accounting standards with you to ensure your financial statements are up to date. For example, for fiscal years ending December 31, 2015 and beyond, federal funding will be subject to requirements under the Uniform Guidance, which increases the Single Audit threshold to $750,000. Most districts have been significantly impacted by GASB Statement No. 68 for the years ending June 30, 2015 and December 31, 2015. Several new GASB Statements have been issued and could impact your district in upcoming years. Be sure to visit gasb.org to review the upcoming statements and discuss them with your auditor to determine impact on your district. Although auditors must remain independent and objective, increasing industry regulations and complex accounting standards have amplified the need for their involvement as trusted financial advisors to districts. Keep the channel of communication open and honest with your auditor, utilize the tips in this article, and you’ll experience audit success! Justin J. Williams, CPA is an audit partner at Mann, Urrutia, Nelson CPAs & Associates, LLP in Sacramento, CA.

For more detailed tips and tools for audit preparation, view the “How to Prepare

for Your District’s Annual Audit” webinar, available on-demand at www.csda.net.

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A proud California Special Districts Alliance partner. California Special District â&#x20AC;&#x201C; March-April 2016

[What’s so special]

Have librarians, will travel Santa Clara County Library District

When most of us think of libraries, we think of buildings filled wall to wall with books that we can peruse and borrow for free. But libraries are so much more than that. They offer literacy services for children and adults, they offer tutoring, and, in the case of Santa Clara County Library District (SCCLD), they connect with individuals outside of the library and ensure they are getting the materials they want. California Special District asked SCCLD to explain its Homebound Services program, how it works, who it benefits, and how they work to engage with the community as effectively as possible. Explain the Homebound Services program. Homebound Services is a program where our librarians find out the interests of an individual, profile them, and arrange to have library materials delivered to their home. The target audience is individuals in our service area who, perhaps for reasons of health or disability, are not able to visit a library. This tends to be people who are isolated for a long period of time - at least three months - and may not have family members who can support them or bring them materials.

Where did the idea for the program originate? We are fortunate to have a strong budget as a district library - we encompass nine cities in an unincorporated county and receive relatively stable funding - so this is something we’ve been able to commit to. I’ve worked here over 20 years and we have always had this program.

Who in your community does the program benefit? It benefits an isolated individual who wants to connect through reading – or perhaps through watching movies or even listening to music - who has an interest in library materials, and who cannot get to the library. Individuals can be of any age. We ask that their situation be at least three months in length. For these individuals it can be hard to get to the library - if not impossible - and we can bring materials to them.

Nancy Jan Blake Howe Executive Santa Clara Director County Library District

Santa Clara County Library District Established: 1914 Size: 1,000+ square miles Population: 425,000

According to the district, it is important to match the librarian with the customer. Why? Because this isn’t a computer program. People have interests and I think they still love the human connection that lets someone talk about what they enjoy reading and what they don’t like reading. As we get to know the individual, our librarians are trained to try to match materials to their interests, and perhaps provide something they hadn’t even considered that they would enjoy. But again, I think it’s the connection. I think of one individual I’ve worked with for a long time, who I don’t think liked the books I picked out for her necessarily, but she always came back and asked for more. And I think sometimes it’s that conversation and connection people yearn for. Libraries are really about community connections.

Location: Santa Clara County Website: www.sccl.org Budget: $38 million

Are there any other programs the district oversees, that interact uniquely with the community? We have several programs that I think are on this personalized level. We do have the traditional services, where people visit the libraries, and we’re very busy. We also have a reading program, which matches volunteers to adult learners for one-on-one tutoring to improve their reading skills. And we also have conversation clubs at our libraries for people who want to practice their English skills. And we offer online academic tutoring for students. We have a number of programs that are smaller and more personalized, such as the bookmobile. Our service area is over 1,000 square miles and a lot of that territory isn’t in an urban area. I deeply believe that libraries improve the quality of life for the community. Libraries are really about community - not about books.

How much time do the traveling librarians spend on their visits? It varies. It could be five minutes to thirty minutes. And if, for some reason, we can’t get to an individual’s home, we do have arrangements where we can mail the materials to them.

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How does the program work to fulfill the district’s mission statement? What the library does is provide information, reading materials, and so much more to our residents. We work to enrich their lives and satisfy their information needs. Libraries are sometimes thought of as warehouses, where we store books and you come and get them. But that, to me, is a passive role. We strive to be a great library and serve the needs of the entire community. And we don’t want to neglect those who are vulnerable and isolated and still have a need for materials. I’ll add that we have a number of services that we use to try to reach people who are isolated - either by geography or physical ailment. We still have bookmobile services, and we still have drop-off services to institutions, where we give them a collection of materials.

What advice do you have for other library districts who may want to launch a similar program? I think that it can be a bit frightening because you might think you’ll be overwhelmed by demand and to have such a customized service can be costly. But I think what we have found is that people really ask for this only when they really need it. And this program doesn’t just benefit the individuals, but their families too. When we care together in the community for those who are most vulnerable, we enrich everyone’s life. Our librarians who have been involved in the program, and developed relationships with participants, have stories to tell where they have benefited from that time spent with an individual.

California Special District – March-April 2016

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Managing risk [continued] Recreational Trail Immunity Teresa Burgueno, et al. v. The Regents of the University of California Court of Appeal, Sixth Appellate District (Certified for Publication: Jan. 13, 2016)

A public entity is generally liable for an injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury and the public entity had actual or constructive notice of the dangerous condition. (Government Code §§ 835, 835.2) Section 831.4[3] however, precludes governmental liability for injuries caused by the condition of (a) Any unpaved road which provides access to fishing, hunting, camping, hiking, riding, including animal and all types of vehicular riding, water

sports, recreational or scenic areas or (b) Any trail used for the above purposes. The purpose of immunity for recreational activities on public land is to encourage public entities to open their property for public recreational use. This case addresses whether the immunity applies to a trail on public land that is used for both recreational purposes and nonrecreational purposes. Adrian Burgueno was a fulltime student at the University of California, Santa Cruz (“UCSC”) in February, 2011. He lived in an offcampus apartment and commuted to the university on his bicycle. His route to campus included traveling on the Great Meadow Bikeway (the “Bikeway”), a paved bike path than runs through a portion of the UCSC

campus. Constructed in 1973, the purpose of the Bikeway is bicycle transportation to and from the central campus that is separate from automobile traffic. Some bicyclists use the Bikeway for recreation. Members of the Santa Cruz County Cycling Club use the Bikeway to access mountain bike paths in the redwood forests above the university campus. There have been a number of bicycle accidents on the Bikeway. On February 10, 2011, Adrian rode his bicycle to his photography class. As he was leaving the campus that evening on his bicycle, he was fatally injured in a bicycle accident on the downhill portion of the Bikeway. Adrian’s mother and sister filed a wrongful death lawsuit against the Regents of the University Continued on page 46

District Snapshots The Nipomo Community Services District Board of Directors presented students from local elementary schools with awards recognizing their efforts in the district’s Conservation Poster Contest. Through a partnership with Science Discovery, the district provided conservation education in 3rd through 6th grade classes. The students were given an opportunity to portray what they learned and submitted hand-drawn posters. The goal of the poster contest was to encourage the wise use and conservation of water.

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California Special District – March-April 2016

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Managing risk [continued] of California (the “Regents”), alleging that Adrian’s death was due to the dangerous condition of the Bikeway. The trial court granted the Regents’ motion for summary judgment on the ground that the action was barred under the recreational trail immunity provided by Government Code § 831.4. Plaintiffs appealed, arguing that the Regents had actual knowledge that students used the Bikeway for commuting to campus at night, and knew or should have known that the Bikeway was unsafe due to its downhill curve, sight limitations, lack of runoff areas, lack of adequate signage, lack of appropriate roadway markings, and lack of physical barriers to prevent nighttime use of the Bikeway. Plaintiffs also alleged that the Regents failed to warn the public and UCSC students of the Bikeway’s dangerous condition. In response, the Regents argued that the Bikeway is a trail within the meaning of § 831.4 because that section has been construed to apply to bike paths; the Bikeway is itself scenic; and it is undisputed that the Bikeway is used by recreational bicyclists. They also asserted that the Bikeway must be treated as a trail under § 831.4 in order to serve the statute’s purpose of encouraging public entities to open their property for public

recreational use without exposure to liability. In addition, the Regents maintained that it is immaterial that Adrian was not using the Bikeway for a recreational purpose at the time of his accident. In its analysis, the Court of Appeal considered several cases that had addressed the application of the trail immunity in the context of a bicycle accident on a public trail or path, including Armenio v. County of San Mateo, (1994) 28 Cal.App.4th 413. In Armenio, the plaintiff was injured while riding his bicycle in a county park on a paved trail used for hiking and riding. The appellate court ruled that trail immunity under § 831.4 applies to paved trails on which recreational activity takes place, as well as trails that provide access to recreational activities. (Id. at pp. 417-418.) The court concluded that it is now well-established that §831.4 applies “to bike paths, both paved and unpaved, to trails providing access to recreational activities, and to trails on which the activities take place.” The Burgueno Court was not persuaded by plaintiffs’ argument that the decisions in Armenio and related cases were distinguishable because the bikeways in those cases were intended and used for recreation, unlike the Great Meadow Bikeway. In the Court’s view, the use of a trail for both recreational and nonrecreational purposes does not preclude the trail immunity under § 831.4. The evidence showed that it was undisputed that the Bikeway is primarily used for its intended purpose as a route for bicycle commuting to and from the UCSC campus. It was also undisputed that the Bikeway is used for recreation. Since the Bikeway has mixed uses that undisputedly include recreation, the Regents have trail immunity under § 831.4 (b) from claims, such as the plaintiffs’ claims, that arise from the condition of the Bikeway. Moreover, plaintiffs did not dispute the evidence showing that recreational bicyclists used the Bikeway as part of their route to access the mountain biking paths in the redwood forests above the UCSC campus. For these reasons, the Court held that the causes of action for dangerous condition of public property and wrongful death were barred as a matter of law because the Regents had absolute immunity from claims arising from Adrian’s tragic accident on the Bikeway pursuant to § 831.4. Thus, the trial court did not err in granting the Regents’ motion for summary judgment. Comment

This case confirms that a bikeway with a dual use – recreational and non-recreational – may be immune from suit under § 831.4, even if it is primarily used for its non-recreational purpose. Copyright: Low, Ball & Lynch; Weekly Law Resume Public agencies can move to have these cases dismissed early on in the litigation process through the use of a Motion for Summary Judgement (MSJ) and avoid unnecessary litigation expense. For further information, please contact SDRMA Chief Risk Officer Dennis Timoney at 800.537.7790 or dtimoney@sdrma.org.

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