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C ALI FO R N I A

SPECIAL DISTRICTS Vo l um e 16 , I s s u e 1 • Ja n u ary- Fe b ru a ry 2 0 2 1

A Publication of the C alifornia Special D is tr ic ts A s s oc iation

Feature • PAGE 14

Soquel Creek Water District Receives $88.9 Million Low-Interest Loan from US EPA for Pure Water Soquel Construction

Community Connections • Page 20

Solutions and Innovations • Page 22

Healthcare Districts As Flexible, Immediate Responders During Times of Crisis

West Basin Recycled Water Projects Boost Water Reliability in Los Angeles County


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Gary Rice Vice President Commercial Card Division (949) 623-1621 GaryRice@UmpquaBank.com

California Special Districts • Jan-Feb 2021


SPECIAL DISTRICT LEADERSHIP FOUNDATION

District Transparency Certificate of Excellence 2021 TRANSPARENCY CHALLENGE

IS YOUR DISTRICT UP FOR THE CHALLENGE? It is now more important than ever for local governments (including special districts), to be open and accessible to the public. The Special District Leadership Foundation’s Transparency Challenge will showcase the many steps your district takes to show it is available and transparent to the constituents and customers you serve. Taking the challenge is simple: Complete the required steps on the SDLF Transparency Checklist and your district is on the way to receiving SDLF’s Transparency Certificate of Excellence and getting recognized for your efforts!

START THE CHALLENGE TODAY!

Download the Transparency Checklist: www.sdlf.org/transparency Volume 16 • Issue 1

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TABLE OF CONTENTS

Solutions and Innovations: Feature:

Soquel Creek Water District Receives $88.9 Million LowInterest Loan from US EPA for Pure Water Soquel Construction

14

Community Connections:

Healthcare Districts As Flexible, Immediate Responders During Times of Crisis – The Peninsula Health Care District’s COVID Story

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05 CEO’s Message 06 Professional Development 08 CSDA News 10 Ask the Experts: Avoiding Common Mishaps During the Reasonable Accommodation Process 12 Interview: CSDA Facilitating Emergency Preparedness Summit

18 Movers and Shakers 19 You Ask, We Answer: Vacation Allotment 26

Legal Brief: COVID-19, Social Justice and Their Impact on Litigation for Years to Come

28 Managers Corner: Empathy is a Superpower

For editorial inquiries, contact CSDA Communications Specialist Kristin Withrow, at 877.924.2732 or kristinw@csda.net.

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West Basin Recycled Water Projects Boost Water Reliability in Los Angeles County

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32 Take Action: COVID-19 and State Budget 34 Managing Risk: COVID-19 Waivers of Liability 37 Money Matters: Budget Preparations for Special Districts 38

Districts Make the Difference: Virtual Tours Showcase Special Districts Meeting the Moment

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What’s So Special: New Agreement will Conserve Threatened Steelhead and Secure Water Operations on the Calaveras River

For advertising inquiries, contact CSDA at 877.924.2732 or advertising@csda.net.

California Special Districts • Jan-Feb 2021


PRESIDENT'S MESSAGE

Looking Forward to an Exciting 2021 I am excited and honored to serve as your CSDA Board President for 2021 and look forward to hopefully seeing many of you in person later in the year. My background consists Ryan Clausnitzer, CSDM of over 20 years in public CSDA Board President service that includes careers with cities, counties, and the federal government until I finally found my home in special districts nearly 10 years ago. My service with the United States Peace Corps in the Kingdom of Tonga motivated me to transition from the field of city planning to public health. Starting as a mosquito and vector control

As a Trustee and Manager, I always find value in participating at our local CSDA Chapter meetings where we meet many great people while learning about what their Districts have been up to.

technician, I delved into the broader environmental health field of regulating non-potable water systems, restaurants, food trucks, and medical cannabis in San Francisco. An announcement in our local newspaper in 2011 motivated me to seek an appointment as a Trustee to the Alameda County Mosquito Abatement District. Immediately after being elected President of the Board of Trustees in 2015, I attended the Special District Leadership Academy in Napa to extend my foundational knowledge of special districts. A few months into my term, I was recruited by the Interim District Manager to the be the next District Manager. After careful consideration, I resigned from the Board, applied, and was hired as District Manager that summer. As a Trustee and Manager, I always find value in participating at our local CSDA Chapter meetings where we meet many great people while learning about what their Districts have been up to. I attended my first CSDA Board Secretary/ Clerk Conference in 2015 and soon after, learned of an opportunity to serve on the continued on page 6

CSDA Board and Staff Officers RYAN CLAUSNITZER, CSDM, PRESIDENT, Alameda County Mosquito Abatement District

Staff

ELAINE MAGNER, VICE PRESIDENT, Pleasant Valley Recreation & Park District

NEIL MCCORMICK, Chief Executive Officer MEGAN HEMMING, Professional Development Director CASSANDRA STRAWN, Member Services Director KYLE PACKHAM, Advocacy & Public Affairs Director TODD WINSLOW, Publications Director RICK WOOD, Finance & Administration Director JENN JACOBS, Member Services Representative ELEANOR BOLING, Member Services Representative EMILY CHA, Member Services Specialist MARCUS DETWILER, Legislative Analyst DILLON GIBBONS, Senior Legislative Representative COLLEEN HALEY, Public Affairs Field Coordinator JIM HARROLD, Database & Online Communities Coordinator MUSTAFA HESSABI, Legislative Analyst-Attorney CHARLOTTE HOLIFIELD, Public Affairs Field Coordinator COLE KARR, Public Affairs Field Coordinator CHRIS NORDEN, Public Affairs Field Coordinator CHRIS PALMER, Public Affairs Field Coordinator AMBER PHELEN, Executive Assistant RACHAEL POPPINO, Professional Development Assistant ALYSSA SILHI, Legislative Representative JENNIFER SMITH, Professional Development Coordinator ERIC SPENCER, Member Services Specialist ANTHONY TANNEHILL, Legislative Representative DANE WADLÉ, Public Affairs Field Coordinator ROMAN WASKIEWICZ, Legislative Assistant JAMES WILFONG, Senior Designer KRISTIN WITHROW, Communications Specialist

ARLENE SCHAFER, SECRETARY, Costa Mesa Sanitary District JERRY L. GILMORE, TREASURER, Truckee Sanitary District VINCENT FERRANTE, PAST PRESIDENT, Moss Landing Harbor District

Members of the Board DON BARTZ, CSDM, Phelon Pinon Hills Community Services District STANLEY CALDWELL, Mt. View Sanitary District RALPH EMERSON, Garberville Sanitary District CHAD DAVISSON, CSDM, Ironhouse Sanitary District PETER KAMPA, CSDM, Groveland & Copper Valley Community Services District JO MACKENZIE, Vista Irrigation District NOELLE MATTOCK, El Dorado Hills Community Services District STEVE PEREZ, Rosamond Community Services District LORENZO RIOS, Clovis Veterans Memorial District KATHERINE STEWART, Vandenburg Village Community Services District FRED RYNESS, Burney Water District ARLENE SCHAFER, Costa Mesa Sanitary District KIMBERLEE SENEY, Gold Mountain Community Services District

California Special Districts Association 1112 I Street, Suite 200, Sacramento, CA 95814 toll-free: 877.924.2732 • www.csda.net

© 2021. California Special Districts Association. Volume 16 • Issue 1

A proud California Special Districts Alliance partner

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PROFESSIONAL DEVELOPMENT

LEARN for free! LET’S LEARN 2021

2020

*ON-DEMAND WEBINARS AND WEBINARS ARE FREE TO CSDA MEMBERS

*

2021 Professional Development Catalog - Check your mail!

The 2021 CSDA Professional Development Catalog has arrived. With the changing conditions around COVID-19, this year’s catalog focuses on the first half of 2021 with 18 scheduled webinars, 19 virtual workshops, 6 conferences and a growing on-demand webinar library – CSDA is your source for education for special district board members and staff. New in 2021 – Live and On-Demand webinars are FREE to CSDA members when you renew your dues! Be sure to check out our new virtual workshops including Budget Preparations for Special Districts with Paul Kaymark from Nigro & Nigro, Crisis Communications with Scott Summerfield from SAE Communications, and the Emergency Preparedness Summit held in partnership with USC Sol Price and Southern California Edison Company. CSDA will also continue its focus on good governance with a virtual workshop – “Board Member Best Practices” as well as a new workshop for your Board Chair and General Manager to be held online this March. New professional development offerings are added throughout the year. Check csda.net for more information and to secure your spot today! SDRMA Members Take Advantage of CIPs

SDRMA Members Earn Credit Incentive Points (CIPs) - Here’s How: Special District Risk Management Authority (SDRMA) is committed to establishing a strategic partnership with our members to provide maximum protection, help control losses and positively impact the overall cost of property/liability and workers’ compensation coverage through the Credit Incentive Program. Credit incentive points can be earned based on an agency’s attendance at events noted by “Earn SDRMA Credit Incentive Points.”

FREE WEBINARS PAGE 3

Look for opportunities to earn SDRMA Credit Incentive Points.

CSDA’s 2019 Special District Leadership Academy

Two Great Options for the Best in Governance Training

This year – CSDA is presenting all four modules of our Special District Leadership Academy VIRTUALLY beginning March 24 and ending May 17. We will be holding our Leadership Academy Conference in the Fall in Lake Tahoe. This conference content is based on CSDA’s Special District Leadership Academy (SDLA) groundbreaking, curriculum-based continuing education program, which recognizes the necessity for the board and general manager to work closely toward a common goal. SDLA provides the knowledge base to perform essential governance responsibilities and is designed for both new and experienced special district board members. Visit csda.net to register for either of these options now.

No District Budget Limits for Education Scholarships

Need help paying for CSDA workshops, webinars, conferences or even a district website? The Special District Leadership Foundation (SDLF) is committed to helping special districts obtain current and relevant continuing education and increasing transparency among California’s special districts. To that end, SDLF is offering $60,000 in scholarship funds for special districts, directors/trustees, and special district staff for 2021. To assist districts during the financial challenges of the current pandemic – there is no district budget limit for education scholarships. The budget limit for website scholarships has been raised to $2 million. Visit sdlf.org for details and apply online today.

President’s Message continued CSDA Board. My election to the CSDA Board motivated me to lead our District to earn the Certificate of Transparency, and soon after, I passed the exam to become a Certified Special District Manager in 2018. CSDA has helped our District provide the best service to our residents through good government best practices. We supply essential services that were uninterrupted to our customers during COVID-19 through the help of CSDA’s trainings and communities. Some of my 6

goals as President are to support CSDA’s efforts that increase the visibility of these essential services for the next generation’s workforce through civics education and apprenticeship programs along with ensuring we represent the diversity of the people that we serve. I am also proud that CSDA is leading the National Special Districts Coalition’s efforts to secure the recognition of special districts in federal statute. Once these groups are aware of the services we provide and how we provide them, there will be less barriers to providing efficient, effective, and locally controlled essential services to our communities. California Special Districts • Jan-Feb 2021


Your Community. Your Services. Your District! 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. The 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!

Volume 16 • Issue 1

MAKE THE

DistrictsMaketheDifference.org DistrictsMaketheDifference.org

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CSDA NEWS

District Networks (MAP SHOWN TO THE RIGHT) What Network is Your District In?

CSDA has taken a lead role in the organization of the National Special Districts Coalition (NSDC). The group consists of statewide special district trade associations each representing local governments providing critical infrastructure, emergency response and community enrichment services across five states. NSDC was formed to share best practices and serve as a national communication forum for special districts nationwide. Current participants include Florida Association of Special Districts, Special Districts Association of Colorado, Special Districts Association of Oregon, and Utah Association of Special Districts. The coalition of special districts associations will provide broad representation in support of special districts, and will federally represent special districts in Washington, DC, beginning in 2021. More information about the NSDC can be found at www.nationalspecialdistricts.org.

Each network has a Public Affairs Field Coordinator available to members to answer any questions about CSDA resources. For more information, or to contact the public affairs field coordinator in your network, please visit the CSDA website at csda.net/about-csda/staff.

NORTHERN NETWORK Ralph Emerson, Garberville Sanitary District Fred Ryness, Burney Water District Kimberlee Seney, Gold Mountain Community Services District

SIERRA NETWORK Jerry Gilmore, Truckee Sanitary District Pete Kampa, CSDM, Saddle Creek Community Services District Noelle Mattock, El Dorado Hills Community Services District

BAY AREA NETWORK Stanley Caldwell, Mt. View Sanitary District Ryan Clausnitzer, CSDM, Alameda County Mosquito Abatement District Chad Davisson, CSDM, Ironhouse Sanitary District

CENTRAL NETWORK Steve Perez, Rosamond Community Services District Lorenzo Rios, Clovis Veterans Memorial District Vacant seat

COASTAL NETWORK Vincent Ferrante, Moss Landing Harbor District Elaine Magner, Pleasant Valley Recreation and Park District

2021 SDRMA Officers

On January 7, 2021 the Special Districts Risk Management Authority (SDRMA) Board of Directors voted to maintain the Officers of the Board. PRESIDENT Mike Scheafer

Katherine Stewart, Vandenberg Village Community Services District

SOUTHERN NETWORK Don Bartz, CSDM, Phelon Pinon Hills Community Services District Jo MacKenzie, Vista Irrigation District Arlene Schafer, Costa Mesa Sanitary District  

VICE-PRESIDENT Sandy Seifert-Raffelson SECRETARY Robert Swan

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California Special Districts • Jan-Feb 2021


California Special Districts Association

DISTRICT NETWORKS Networks & Chapters Del Norte

Del Norte

Siskiyou

Siskiyou

Humboldt

Northern Network Shasta

Trinity

Humboldt

Lassen

Tehama

Plumas

Butte

Glenn

Mendocino

Lassen

Sierra Nevada

Sutter

Colusa

Lake

Yolo Sonoma

Placer

Yuba

Napa

Marin

Plumas

Bay Area Network

San Francisco

Contra Costa

San Mateo

Alameda

Butte

Glenn

Sierra

Colusa

Yuba

Yolo Sonoma

Santa Clara

Sac.

Merced

San Francisco

Contra Costa

San Mateo

San Joaquin

Alameda

Kings

Tulare

Kern San Bernardino

Santa Barbara Ventura

Alpine

Los Angeles

Tuolumne

San Diego

Imperial

Affiliated Chapters

Mono

San Benito

Riverside

Orange

Southern Network

Calaveras

• ALAMEDA COUNTY SPECIAL DISTRICTS ASSOCIATION • ASSOCIATION OF SAN BERNARDINO COUNTY SPECIAL DISTRICTS • BUTTE COUNTY SPECIAL DISTRICTS ASSOCIATION • CENTRAL VALLEY LOCAL CHAPTER OF CSDA* • CONTRA COSTA SPECIAL DISTRICTS ASSOCIATION • GOLD COUNTRY REGIONAL CHAPTER OF CSDA** • HUMBOLDT AREA CHAPTER • INDEPENDENT SPECIAL DISTRICTS OF ORANGE COUNTY • KERN COUNTY SPECIAL DISTRICTS ASSOCIATION • MARIN COUNTY SPECIAL DISTRICTS ASSOCIATION • NORTHEASTERN CALIFORNIA CHAPTER OF CSDA***

Mariposa

Merced

Santa Cruz

Inyo

San Luis Obispo

Sierra Network

Stanislaus

Santa Clara

Central Network

Madera Fresno

Amador

Solano Marin

Mono Mariposa

Monterey

El Dorado

Napa

Tuolumne

Coastal Network

Placer

Sutter

Calaveras

Stanislaus

San Benito

Nevada Lake

Alpine

Amador

San Joaquin

Santa Cruz

Mendocino

Sierra Network

El Dorado Sac.

Solano

Tehama

Bay Area Network

Northern Network

Shasta

Trinity

Chapters

Modoc

Modoc

Central Network

Madera

*Chapter consists of Fresno, Kings, and Tulare counties. ***Chapter consists of Lassen and Modoc counties.

• PLUMAS COUNTY SPECIAL DISTRICTS ASSOCIATION • SAN DIEGO CHAPTER OF CSDA • SAN LUIS OBISPO COUNTY CHAPTER OF CSDA • SAN MATEO CHAPTER OF THE CALIFORNIA SPECIAL DISTRICTS ASSOCIATION • SANTA BARBARA COUNTY CHAPTER OF CSDA • SANTA CLARA COUNTY SPECIAL DISTRICTS ASSOCIATION • SOLANO COUNTY SPECIAL DISTRICTS ASSOCIATION • SPECIAL DISTRICTS ASSOCIATION OF MONTEREY COUNTY • SPECIAL DISTRICTS ASSOCIATION OF RIVERSIDE COUNTY CHAPTER • STANISLAUS COUNTY SPECIAL DISTRICTS ASSOCIATION • VENTURA COUNTY SPECIAL DISTRICTS ASSOCIATION

**Chapter consists of Sierra, Nevada, Placer, El Dorado, Amador, Calaveras and Tuolomne counties.

LAST UPDATED JANUARY 2021

Fresno Inyo

Monterey

Kings

Coastal Network San Luis Obispo

Tulare

Kern San Bernardino

Santa Barbara Ventura

Los Angeles

Riverside

Orange

Southern Network

San Diego

Imperial

2020 Board of Directors by Networks Northern Network Ralph Emerson, Garberville Sanitary District Greg Orsini, McKinleyville Community Services District Fred Ryness, Burney Water District

Central Network Joel Bauer, West Side Cemetery District Sandi Miller, Selma Cemetery District Lorenzo Rios, Clovis Veterans Memorial District

Sierra Network Jerry Gilmore, Truckee Sanitary District Pete Kampa, Saddle Creek Community Services District Noelle Mattock, El Dorado Hills Community Services District

Coastal Network Vincent Ferrante, Moss Landing Harbor District

Did you know CSDA has affiliated chapters throughout the state? Learn more at csda.net/about-csda/chapters-networks (AFFILIATED CHAPTERS LISTED BELOW)

Elaine Magner, Pleasant Recreation & Park District • Alameda County Special Districts Association • Valley Plumas County Special Districts Association Vacant • Association of San Bernardino County Special Districts • San Diego Chapter of CSDA Bay Area Network Southern Network Stan Caldwell, Mt. ViewCounty Sanitary District Jo MacKenzie, Vista Irrigation District • Butte Special Districts Association • San Luis Obispo County Chapter of CSDA Ryan Clausnitzer, Alameda County Mosquito Abatement District Arlene Schafer, Costa Mesa Sanitary District Chad Davisson, Ironhouse Sanitary District Vacant • Central Valley Local Chapter of CSDA • San Mateo Chapter of the CSDA LAST UPATED JAN. 1, 2020 • Contra Costa Special Districts Association • Santa Barbara County Chapter of CSDA • Gold Country Regional Chapter of CSDA • Santa Clara County Special Districts Association • Humboldt Area Chapter • Solano County Special Districts Association • Independent Special Districts of Orange County (ISDOC) • Special Districts Association of Monterey County • Kern County Special Districts Association • Special Districts Association of Riverside County Chapter • Northeastern California Chapter of CSDA • Stanislaus County Special Districts Association • Ventura County Special Districts Association

Volume 16 • Issue 1

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ASK THE EXPERTS

Avoiding Common Mishaps During the Reasonable Accommodation Process By Nate Kowalski, Eric Riss, and Angelo Villarreal, Atkinson, Andelson, Loya, Ruud & Romo

Common Mishap #2: Failing to Fully Engage in the Interactive Process

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tate and federal law dictate that employers may not discriminate against employees on the basis of their disabilities. This mandate requires cities, counties, housing authorities, transit agencies, water districts, and other special districts (“public agencies”) to timely engage in the interactive process in good faith, and provide reasonable workplace accommodations to enable disabled employees to fulfill the essential functions of their position. Mistakes made during the interactive process are one primary cause for disability discrimination claims. This article will address some common mishaps that arise during the interactive and reasonable accommodation process that public agencies should avoid.

Common Mishap #1: Failing to Recognize a Request for Accommodation First, public agencies may fail to recognize a request for accommodation. There are no “magic words” that an employee must use to state a valid accommodation request. A public agency will be put on notice of a request for accommodation when it (a) knows the 10

employee has a disability; (b) knows, or has reason to know, the employee is experiencing workplace problems because of a disability; or (c) knows, or has reason to know, the disability prevents the employee from requesting a reasonable accommodation. One published decision illustrates this issue.1 A pharmacy assistant who suffered from cerebral palsy was hired to work in a pharmacy. During the hiring stage, the employer was aware of the pharmacy assistant’s disability. Shortly after his hiring, the employee was transferred to other roles within the department because his supervisor was unhappy with his performance. The employee subsequently quit out of frustration with his transfer. Although the employee did not request accommodations for his disability, the employer was found to have failed to provide accommodations, because the employer was aware that the employee had obvious speech, visual, and walking impediments. Thus, public agencies should remain mindful of legally protected accommodation requests, whether or not the employee personally submits a request or takes explicit action to notify the employer about a disability.

Public agencies may also overlook the obligation to engage in the interactive process. Once a public agency has learned about an employee’s disability and accommodation request through a third party or observation, it must engage in the interactive process. Another published decision demonstrates how this mistake can arise.2 An employee had been initially certified for leave based on a psychiatric condition. When that leave expired, the employee submitted a form from his chiropractor stating he was suffering from a back condition and needed leave from work. The employer attempted to contact the employee directly, but failed to reach him. Instead, the employer decided to terminate his employment after considering the chiropractor’s form to be insufficient to request further leave and excuse his absence. The court found that the employer failed to engage in the interactive process by not adequately communicating with the employee about his condition and need for accommodation. While the employer argued that it was unaware that the employee had a disability, the court found the form sufficient to put the employer on notice of his disability. Once an employee with a known disability requests an accommodation, a public agency must take affirmative steps to engage in the interactive process. Public agencies should refrain from reaching premature conclusions, premise accommodation discussions in the information provided by an employee, and seek clarification when needed. California Special Districts • Jan-Feb 2021


Common Mishap #3: Assuming Every Job Function Is Essential

Public agencies must offer reasonable accommodations to employees with qualifying “disabilities” to permit them to perform essential job functions. While public agencies must act in good faith during the interactive process, they should avoid deeming all duties for an employee’s position as “essential.” A work duty may be deemed essential if the position exists primarily to perform that function, a limited number of other employees are available or qualified to perform it, or the function is highly specialized and requires the disabled employee to complete it. In determining which duties are “essential” and trigger accommodation obligations, public agencies may consult the following: accurate and current job descriptions for the position; the amount of time spent on the function; the legitimate operational consequences of not performing the function; the current experience of others in similar positions; and the employer’s judgment based on credible reasons. In one published decision, the court considered whether a certain work function (tearing out cables) was considered essential for a cable installer employee who suffered from asthma.3 Because this particular function occupied only 12% of the employee’s time, the court determined that the function was nonessential because it was proportionately insignificant compared to the time spent on other tasks. Thus, by deeming this function as essential, the employer failed to properly accommodate the employee. Public agencies should be aware that an essential function is one that is fundamental to a position rather than marginal or sporadic.

create detailed records (e.g., taking contemporaneous notes) documenting their discussions with employees during the interactive process, as records are often found to constitute compelling evidence that the interactive process occurred and in the manner described by the employer. Conversely, an employee can highlight a public agency’s lack of documentation to argue that the interactive process did not occur, or to dispute the employer’s account of what transpired during a particular meeting. In another litigated case, an employee with Asperger’s Syndrome contended that her employer did not take reasonable measures to accommodate her condition.4 However, the employee repeatedly engaged in obstructive and uncooperative behavior in response to the employer’s good faith attempt to discuss accommodations. The employee’s documented failure to engage in the interactive process ultimately undermined her accommodation claim. This case illustrates the need for public agencies to document the interactive process.

Common Mishap #5: Failing to Train Managers and Supervisors

Finally, public agencies should ensure that managers and supervisors receive adequate training on how to engage in the interactive and reasonable accommodation process. Without training on how the interactive process works, unaddressed accommodation requests may occur more frequently due to managers’ ignorance about their obligations and best practices. Additionally, standardized training can help ensure that different department managers or supervisors follow the same process, use the same forms, and apply standards consistently in seeking to accommodate employees. Training can also help staff avoid asking inappropriate questions regarding an employee’s medical condition, or otherwise act in a manner that may be viewed as discriminatory or retaliatory in nature based on an employee’s disability and/or accommodation request. Please contact the authors of this article, or your district’s legal counsel, if you are interested in conducting training for the managers and supervisors at your agency. 1 Brady v. Wal-Mart Stores, Inc. (2d Cir. 2008) 531 F.3d 127. 2 Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864. 3 Ackerman v. Western Elec. Co., Inc. (N.D. Cal. 1986) 643 F.Supp. 836, 844-846. 4 Huge v. Boeing Co. (W.D. Wash. 2015) 2015 WL 6626568.

Common Mishap #4: Failing to Document the Interactive Process

Public agencies should attempt to thoroughly document the interactive process. Public agencies should Volume 16 • Issue 1

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INTERVIEW

CSDA Facilitating Emergency Preparedness Summit with Southern California Edison and USC Sol Price School of Public Policy By Kristin Withrow, Communications Specialist, California Special Districts Association

California Special Districts Association has focused on the role of special districts during times of strained resources that arise from emergencies and unforeseen crises. The devastation wrought by wildfire on a community, damage and displacement from earthquakes, or the massive coordinated response to a pandemic have several commonalities that will be identified and explored during the course of the two-day summit. The USC Sol Price School of Public Policy will conduct the summit topics, which take place on two Fridays in February. Participants who attend both days will receive a certificate of completion from USC. The agenda items are the collaborative result of input from CSDA, Southern California Edison (SCE) and USC’s Executive Education (EXED) forum. SCE Public Affairs Manager Haig Kartounian said, “SCE has been a sponsor of USC Sol Price Executive Education forums for a decade. USC’s program is unique in that it 12

bridges the gap between theory and real-world scenarios.” As a result of SCE’s generous sponsorship, this summit is free for all CSDA members. California has wrestled with the pandemic in similar ways to other states, yet its complexity is compounded by our population and density of urban areas. In addition to COVID19’s effect on the nation, California has the unique challenge of its widespread size and geography, economic diversity, regional political variability, and the ongoing additional emergencies that have become more common in the state, such as wildfire. Local public agencies must do more than respond when emergencies arise, they must prepare in advance for their response. “Special Districts need to be as self-sufficient as possible. In any emergency, the deployment of outside resources takes time. In an emergency, minutes matter,” noted Kartounian. According to CSDA Public Affairs Director Kyle Packham, CSDA recognizes that “special districts have as a part of their job the duty of emergency response and management of critical infrastructure. They are in position, on location, and must have planned response in the moment before support arrives. Some special districts have been left out of some of the resources and planning. There must be training for relief coordination, evacuation and critical and prolonged support.” Paradise Recreation and Park District Manager Dan Efseaff will provide bonus information on his experience recovering from the Camp Fire, California’s deadliest and most destructive wildfire in 2018. Efseaff brings a perspective of lessons-learned to the summit, with an eye toward resource and communication planning that must be in position before an emergency arises. Among other topics, Efseaff will discuss communications best practices. Many layers of communication go into the preparedness process. Agencies must have channels of communication across layers of government, including local, county and state contacts. Additionally, agencies benefit from established channels with private resource response agencies such as the American Red Cross or other more local agencies that exist to step in with aide to communities in crisis. Kartounian’s role as Public Affairs Manager with SCE leads him to a focus on “integration, coordination, and California Special Districts • Jan-Feb 2021


communications with government.” He said, “Training encourages thinking of future challenges, identifying risk, taking steps to prepare that may include shared resources for efficiency.”

“One of the big lessons for us following the Camp Fire was diversifying our communications to the public and our employees. One is none—if you don’t have a contingency and backup, you do not have a reliable, robust communication plan, no matter how effective your pre-catastrophe system might be. Following the Camp Fire, nearly all pre-fire communication pathways were disrupted or not as available, we utilized a variety of ways to get in touch, a phone tree, email to cell phone text messages, email list serve, cloud documents, setting up meeting times and places, and we even tracked down employees through social media. Unforeseen circumstances will inevitably require some improvisation but having a plan beforehand will smooth communication and keep your operations in motion during critical times,” Efseaff said. In non-pandemic times, USC’s EXED forum would be hosted at Edison’s Emergency Operations Center in southern California. This virtual summit has been adapted from those models to allow widespread participation from all regions of the state without the risk or cost of travel. The Emergency Preparedness Summit will cover all topics relative to a robust emergency response for the variety of situations that can arise in any locality. Participants will learn threat assessment, resource planning, how to identify the necessary communication channels they should cultivate and maintain before an emergency arises, and financial assessment for asset management before and after an emergency. Challenges will arise in any given year; with forethought and preparation, special districts will be in the best position to help their communities through disasters and get them on the road to recovery efficiently. Volume 16 • Issue 1

USC Sol Price School of Public Policy Conducting Emergency Preparedness Summit For 90 plus years, the USC Sol Price School of Public Policy (USC Price) has earned the public’s trust by creating cutting edge research and scholarship to meet policy, planning, and administration challenges. For the past eight years, USC Price has offered an exceptional and unique short-term non-degree Executive Education Forum (EXED) program for both Local Leaders as well as Global Leaders. While much of the world has changed, our EXED mission, “to educate and train leaders around the world and in local communities to manage organizations and devise policies that make societies and communities worldwide better places for all,” has not. The Price School embraces the value of education for the public sector. We continue to bring together experienced professionals, a worldclass faculty, and a dynamic curriculum to teach and reach across boundaries to solve public problems. We enjoy and are grateful for the support of many influential policy-driven organizations like the Southern California Association of Governments, Metropolitan Water District, Southern California Edison, and many others.

“Southern California Edison is a long-time supporter of the USC Sol Price Schools’ EXED program because it provides local leaders an opportunity for meaningful learning about issues that are critical to the continuous improvement of local governance. We look forward to sponsoring and participating in the upcoming Emergency Preparedness Summit for members of the CSDA.” - Zanku Armenian Director of Public Affairs, Southern California Edison

During these remote times, The USC Price EXED Forum is committed to providing relevant information on the critical policy issues vital to us. We sustain the active, collaborative, and engaging conversation that is the hallmark of the EXED Forum experience by collaborating with California Special District Association and Southern California Edison (SCE) to present the Emergency Preparedness Summit scheduled for February 19th and February 26th, 2021.

Join the Network! You will return to your organizations with best practices prepared to lead with greater vision. During times like these, our Local Leaders must have access to programs like the EXED Forum, and we look forward to welcoming CSDA members to the Trojan network!

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COMMUNITY CONNECTIONS

SOQUEL CREEK WATER DISTRICT RECEIVES $88.9 MILLION LOW-INTEREST LOAN FROM US EPA FOR PURE WATER SOQUEL CONSTRUCTION EPA Loan, State Loan, and State Prop. 1 Grant Assure Significant Funding for Pure Water Soquel By Rebecca Rubin, Public Outreach Coordinator, Soquel Creek Water District

T

he Soquel Creek Water District (District) is pleased to announce that its lowinterest loan from the US Environmental Protection Agency (EPA) has been officially approved, to be used toward construction of the Pure Water Soquel Groundwater Replenishment and Seawater Intrusion Prevention Project. The loan, up to a maximum of $88.9 million at an interest rate of 1.34%, is part of the EPA’s Water Infrastructure Finance and Innovation Act (WIFIA) funding program. This funding is in addition to a State Water Resources Board $50 million Prop 1 grant that was executed in July, another 14

low-interest (1.3%) loan from the State Water Board’s Seawater Intrusion Control (SWIC) Program, and earlier $2.25 million in state and federal grants for the design phase of the project. These are significant financial investments, demonstrating a strong belief and support in Pure Water Soquel from state and federal agencies. This support greatly benefits the District’s customers, the local community, and our environment. The WIFIA loan represents over $66 million in interest savings compared to typical financing that is available to the District. For the WIFIA loan, the District can draw any amount up to the maximum loan amount and will draw

only the funds necessary for project completion. Interest and principal repayment are based only on the funds used, and there is no penalty for not utilizing the entire loan amount. This widespread support and funding will have a positive impact for District customers, as future rate increases won’t need to be as high as they would have been under more traditional financing. “This is another great milestone for Pure Water Soquel and brings us one step closer to providing this drought-proof, clean water supply to the community,” said Dr. Bruce Daniels, President of the District’s Board of Directors. “We are doing everything California Special Districts • Jan-Feb 2021


FEATURE

we can to bring this project in at the estimated cost, but it’s sensible — and really, our obligation — to make sure we’re prepared for the upper end of the estimates. This loan gives us the buffer we need, to ensure we can replenish and protect our groundwater basin.” Pure Water Soquel is a groundwater replenishment and seawater intrusion prevention project designed to prevent further seawater contamination of the Santa Cruz Mid-County Groundwater Basin. This basin is one of 21 (out of over 500 basins) in the state of California that has been identified as critically overdrafted, with a mandate that it be brought back into sustainability by 2040. The project will take treated wastewater and put it through a stateof-the-science multi-step advanced purification process (producing water that is cleaner than bottled water) before

pumping it into the groundwater basin to raise the water there to protective levels. This provides a new, drought-proof water supply, and will prevent further spread of seawater contamination of the drinking water supply. “Coastal aquifers are at significant risk in our region and in several other parts of the state, and once they’re contaminated with seawater — it is nearly impossible to ever recover them,” said Melanie Mow Schumacher, District’s Pure Water Soquel Program Director. “This project not only safeguards the local water supply, it also contributes to the prevention of seawater intrusion along the entire mid-county coastline.” The EPA’s official press release was issued on October 5, 2020 on Pure Water Soquel, which includes what others are saying about the benefits of the loan, and the PWS Project:

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• John Busterud, EPA Pacific Southwest Regional Administrator: “Monterey Bay plays a vital role in the region’s marine health and biodiversity. EPA’s financial support to the Soquel Creek Water District will help protect the Bay while replenishing local groundwater and ensuring that the community is more resilient against drought.” continued on page 16

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• David Ross, EPA Assistant Administrator for Water: “With 40 states anticipating some freshwater shortages within their borders in the next 10 years, projects like Pure Water Soquel Creek are taking the challenge of meeting 21st century water demands head on. Through WIFIA, EPA is able to support innovative water infrastructure to help diversify water supplies and protect groundwater while saving ratepayers money.” • Jimmy Panetta, U.S. Representative (CA-20): “I want to congratulate the Soquel Creek Water District for this significant milestone in the history of the Pure Water Soquel project. Seawater intrusion into critical groundwater supplies is of great concern throughout my coastal district, and with this low-interest loan, the District can begin the next phase project, helping ensure the long-term protection of our local water supply.”

• Mark Stone, CA State Assemblymember: “This very low-interest loan from WIFIA is a real landmark in Soquel Creek Water District’s efforts to address our critical water supply issues. We are so fortunate here in Santa Cruz County to benefit from this extraordinary level of support and funding from the U.S. EPA, as well as from our own State Water Board, which is making the difference in assuring long-term sustainability of the community’s drinking water supply.” • Zach Friend: Santa Cruz County Board of Supervisor: “Maintaining a clean, reliable supply of drinking water is clearly one of the most vital issues here and throughout California. With the help of this generous WIFIA loan from the US EPA, the Soquel Creek Water District is poised to take a giant leap forward toward local water supply sustainability, by creating a new source of pure water, replenishing the groundwater, and preventing further seawater contamination.”

About Soquel Creek Water District: The Soquel Creek Water District is a local government agency that provides water resource management within its service area to deliver a safe and reliable supply of high-quality water to meet present and future needs in an environmentally sensitive and economically responsible way. www.soquelcreekwater.org

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MOVERS & SHAKERS

MOVERS& SHAKERS Silicon Valley Regional Interoperability Agency (SVRIA) Announces New Executive Director With the retirement of Executive Director Denise Sellars, Silicon Valley Regional Interoperability Agency and Regional Government Services Authority conducted a 6-month nationwide recruitment process and has just announced the appointment of Eric Nickel to the position. Director Nickel has served as Fire Chief in Santa Barbara and Palo Alto in addition to leadership with Novato Fire Protection District. CSDA extends well wishes for health and happiness in retirement to outgoing Director Sellers and congratulates Director Nickel on this appointment. Bill Schwandt is the new General Manager at Modesto Irrigation District. The Modesto Irrigation District (MID) Board of Directors appointed Bill Schwandt as the District’s General Manager during their November 10 Board meeting. Schwandt Bill Schwandt joins MID following a 35-year career with Moorhead Public Service in Moorhead, Minnesota.

Providing Special Districts with Focused Legal Strategies We counsel clients throughout California in sectors including Water, Public Finance, Public Agency, Environment, Infrastructure, Employment, Data Protection, Government Relations and Eminent Domain. What solutions are you seeking?

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The Grossmont Healthcare District (GHD) has announced that Barry Jantz has decided to retire effective March 31, 2021. Jantz was appointed Chief Executive Officer in 2004. In his years as CEO of the District, Jantz led the effort to complete over $260 million in Proposition G improvements at Grossmont Hospital, as well as a successful 2014 ballot measure to continue the lease of the hospital to Sharp HealthCare until 2051. “We very much appreciate Barry’s leadership in maintaining the integrity of the public-private partnership between GHD and Sharp HealthCare to operate Sharp Grossmont Hospital,” said GHD Board President Randy Lenac. “As a result of facility improvements financed through Prop G, for years to come our public hospital is positioned to respond effectively in the rapidly changing healthcare environment.” “My time with GHD has been amazing,” said Jantz. “Seeing the $265 million in Prop G improvements completed at Sharp Grossmont Hospital was among my personal and professional highlights, as it finalized about 14 years of intense work that will remain a lasting benefit to the community. I’ve been blessed to have such incredible support from my board members and colleagues, as well as my family and friends. I look forward to continuing to work to support my community.”

Do you have movers and shakers in your districts to highlight? Send to CSDA Communications Specialist-Editor Kristin Withrow at kristinw@csda.net for consideration in this section.

California Special Districts • Jan-Feb 2021


Questions Appear in CSDA Online Communities

YOU ASK, WE ANSWER

Q&A

Vacation Allotment

Sandra Willingmyre Solano County Water Agency Hello, I was wondering if anyone can share their Districts maximum vacation allotment? Does your District have a cut off for maximum vacation? Do you allow your employees to buy back vacation? Please share the amounts. Our employees can accrue a maximum of 320 hours and buy back 80 hours within a 12 month period.

Volume 16 • Issue 1

Alison Costa El Dorado Irrigation District Sandra, we don’t have vacation and sick time. We have PTO. Maximum accrual for someone with 15 + years of service is 280. If there is more than 280 left in their bank at the end of the year, it rolls over to another “bank” that is available if they are on FMLA/CFRA leaves. We will allow employees to cash out up to a maximum of 40 hours of PTO. We have increased that to 80 hours because of COVID-19 and people can’t take vacation. We’ve also increased the maximum accrual by 40 hours because of COVID. People can’t take or don’t have anywhere to take a vacation.

Yesenia Parra Administrative Services Officer, Santa Cruz County Regional Transportation Commission Each of our staff members earn vacation at a different rate and the maximum for each is 2.5 times what they earn in a year. We do not allow buy backs. But we do allow cash out. CSDA Disclaimer: This section is not intended to be legal advice. Members should always seek legal counsel. The information contained here is for general reference purposes only.

Engage with your peers and ask questions on CSDA’s Open Forum community!

19


COMMUNITY CONNECTIONS

Healthcare Districts As Flexible, Immediate Responders During Times of Crisis – The Peninsula Health Care District’s COVID Story By Ashley McDevitt, MS/HSA, Community Engagement Director, Peninsula Health Care District

First Priority – District Programs

P

eninsula Health Care District (PHCD) is located on the San Francisco Peninsula and serves approximately 220,000 residents living in the cities of San Bruno, Millbrae, Burlingame, Hillsborough, San Mateo, and Foster City. Our residents are diverse in age, race, ethnicity, socio-economic factors, and health status. PHCD’s vision is that “all residents have the opportunity to achieve their optimal health through access, prevention, and education.” We strive to achieve this vision by regularly assessing health needs, health disparities, and gaps in health programs and services and then addressing them by establishing new programs and supporting community service partners. The COVID pandemic has impacted every sector of our County, most notably to the Peninsula Health Care District, every health service provider and District partner such as County Health, hospitals and health systems, communitybased non-profit providers, and the education system from pre-school through junior college. When the pandemic hit our community, PHCD took immediate action to fulfill its strategic role of serving as a flexible and immediate responder during times of crisis (natural disasters, emerging health epidemics) and carried out a multi-focused, prioritized approach response.

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THE TROUSDALE: At the district’s 124-unit assisted living and memory care facility, every assisted living resident was given an Alexa Dot to help them stay connected with the outside world and “have company” during shelter-in-place. More recently, iWave technology was installed throughout the building to enhance the air filtration system. SONRISAS DENTAL HEALTH: This district affiliate, non-profit dental organization serves all by removing financial, physical, and cognitive barriers to care. The two centers provide over 11,000 visits per year, 70% of which are uninsured or Medi-Cal Dental. When COVID hit, Sonrisas maintained emergency care services, upgraded the Center’s air filtration systems, and pivoted its community outreach programs. Virtual oral health education programs were provided to elementary school students, oral health education and tooth-brush kits were distributed to children and families by partnering with food distribution sites; and recently, a drive thru oral health screening program for children was launched. HEALTH AND FITNESS CENTER: This district fitness and educational facility focuses on promoting healthy aging through exercise, education, and social connection. The district’s team immediately pivoted services and launched an at-home series of virtual exercise and wellness classes. Social connection is the greatest priority, and the Center Director stays in touch with every member through phone calls, written notes, email check-ins, and sharing links to a wide range of services and educational programs.

Countywide Support When the initial surge began in March, the district was asked to help fill a gap in funding to establish an alternative care facility for vulnerable patients recovering from COVID-19 to help keep hospital bed capacity open. Within 72 hours, the District Board made support available to make it happen and donated ten hospital beds and over-bed tables to help outfit the rooms. Additionally, within the first three months of the pandemic, PHCD: • Relieved grant restrictions for current PHCD grantees. • Established a COVID-19 Emergency Relief Fund California Special Districts • Jan-Feb 2021


for Health and Human Services agencies focused on addressing mental health, food insecurity, PPE, and social isolation. • Donated gift cards to low-income families to help meet basic needs. • Launched a youth-driven social media campaign to promote healthy coping strategies. • Donated critical PPE to service providers such as skilled nursing facilities and hospice care. • Expanded and promoted an Older Adult Resource Line in partnership with a community-based organization. Mental health and wellness needs have been exacerbated for all ages by the pandemic. Thus, PHCD’s work has focused on addressing this critical need through the following interventions: • Launched a parent engagement and education series focusing on mental health and parent support. • Launched a mental health care coordination program for students, parents, and school staff members. • Provided grants to community-based organizations to increase access to mental health services such as free and

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low-cost counseling services, Crisis Intervention and Suicide Prevention Center services, and peer counseling services as several examples. • Supported the ongoing work of its Youth Advisory Group to launch community projects and social media campaigns to promote mental wellness for young people. Peninsula Health Care District’s immediate and ongoing response to the COVID pandemic is a prime example of how Health Care Districts provide critical and locally responsive health services, especially in times of crisis. In addition to pivoting our direct service programs, PHCD has launched and supported new programs across multiple sectors of our local health system and has impacted thousands of residents through its COVID relief efforts. Now in this ever-changing environment and ongoing through recovery, the District will continue to regularly assess the most pressing needs and work in partnership with others to identify solutions to fill gaps and leverage existing resources to meet the needs of our community. For more information about PHCD’s COVID response, programs or for general information, please contact Ashley McDevitt, Community Engagement Director at Ashley.mcdevitt@peninsulahealthcaredistrict.org

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SOLUTIONS AND INNOVATIONS

WEST BASIN West Basin Recycled Water Projects Boost Water Reliability in Los Angeles County By West Basin Publications Staff

D

uring the late 1980s and early 1990s, at a time when severe drought was occurring throughout California, the West Basin Board of Directors made a calculated and strategic decision to begin developing a new and sustainable water supply for the coastal region of Los Angeles County. This new water supply would come in the form of recycled water. In taking this action, West Basin sought to reduce its reliance on imported water supplies and strengthen the District’s overall water supply portfolio with a local and drought-proof water source. Since 1995, West Basin has invested more than $600 million in its recycled water program, with more than 220 billion gallons of recycled water being delivered to a wide variety of customers. The District operates the only recycled 22

water network in the world that creates five different types of customer-specific recycled water. West Basin recycled water is used for irrigation, industrial cooling towers, high and lowpressure boiler feeds, and seawater barrier protection that also replenishes the groundwater basin. Much of the District’s investment has been supplemented by local, state, and federal grants that have allowed West Basin to produce and deliver recycled water as a cost-effective and affordable water supply alternative to drinking water. Every drop of water that West Basin recycles is a drop of drinking water conserved for area residents and businesses. Each year, West Basin’s robust Capital Improvement Program seeks to strengthen and expand the District’s vast recycled water system. While the District currently delivers approximately 40 million gallons of recycled water per day, California Special Districts • Jan-Feb 2021


West Basin has future plans to expand its production to approximately 70 million gallons per day as customer demand increases. The District continues to work closely with business, industry, and civic leaders to identify and develop future recycled water projects in the service area. In total, West Basin has 20 recycled water sites currently under development. Several other projects have recently been completed. Each completed project helps further West Basin’s recycled water goals for the region. The District is also in the midst of finalizing a Recycled Water Master Plan that will help guide future investments in new recycled water projects throughout the service area. West Basin is working closely with numerous local public and private organizations to help information the implementation of the plan.

Dominguez Technology Center - Carson

West Basin partnered with a team of public and private organizations to bring recycled water to the Dominguez Technology Center (DTC), in Carson. The project successfully converted DTC’s landscape irrigation system to use recycled water instead of potable water. The 300-acre industrial park, located adjacent to California State University, Dominguez Hills, now uses locallyproduced, recycled water from West Basin to irrigate the property’s sizable landscape, saving more than 40 million gallons of drinking water per year. In June, DTC was awarded the Recycled Water Customer of the Year from WateReuse California. The annual award recognizes innovative organizations who have advanced the use and acceptance of recycled water. With the project complete, West Basin anticipates delivering more than 40 million gallons of recycled water per year to 36 different landscape irrigation sites located within the business park’s campus, saving enough drinking water annually to serve more than 400 single-

Volume 16 • Issue 1

(SoFi Stadium water feature uses recycled water) family households. In addition to partnering with property owners Watson Land Company and Carson Companies, West Basin collaborated with private water purveyor California Water Service - which owns the recycled water distribution pipeline within the site - to provide the campus with recycled water. A video about the project is viewable online. continued on page 24

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SoFi Stadium and Hollywood Park - Inglewood

West Basin has completed construction of a new recycled water project at the SoFi Stadium and Entertainment District in Inglewood. SoFi Stadium and Entertainment District will serve as the new home of the Los Angeles Rams and Los Angeles Chargers of the National Football League. The project delivers approximately 80 acre-feet (26 million gallons) per year of recycled water to the stadium and surrounding areas. Recycled water is provided to the following areas: • Lake Park (Lake fill & Irrigation) • Stadium Inner Loop (Irrigation) • Green areas in parking lots and streetscapes • Casino • Inglewood Transit Center • Other Miscellaneous Irrigation Sites The project was completed in August 2020.

Torrance Commerce Center

In June, West Basin completed a recycled water project at the Torrance Commerce Center (Center). Located on the former Toyota North American Headquarters property, the Center will use recycled water instead of drinking water to irrigate the landscape surrounding three recently constructed office buildings. The project is expected to save approximately 1 million gallons of drinking water per year. West Basin partnered with local developer, the Sares Regis Group, to develop a long-term eco-friendly recycled water strategy at the Center that serves the dual purpose of supporting local industries in the South Bay, and improving water supply reliability throughout the region. West Basin will continue to explore additional opportunities to expand recycled water use at the Center as future development occurs. West Basin is currently working with other local partners to expand recycled water supplies at six other sites at nearby parks, schools and public green spaces.

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California Special Districts • Jan-Feb 2021


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25


LEGAL BRIEF

COVID-19, Social Justice and Their Impact on Litigation for Years to Come By Elizabeth Tom Arce, Partner, and Kaylee Feick, Associate, Liebert Cassidy Whitmore

COVID-19

From an unprecedented global pandemic to civil unrest and increasing political polarization, the events of 2020 launched employers into uncharted territory as they faced a host of unique employment-related issues. As employers across California continue to navigate these issues, one thing remains certain: the impacts of COVID-19 and the social justice movement will likely result in a wave of litigation in 2021 and beyond. Consequently, special districts cannot afford to ignore these realities and must brace for an increase in legal claims.

26

The pandemic and resulting stayat-home orders forced employers to find answers for employmentrelated questions in which there was little to no guidance. Despite acting with best intentions, special districts had to make tough choices that were not always welcomed by employees. Disability discrimination claims are likely to arise from situations where an employer refuses to reasonably accommodate employees who may be at greater risk of severe illness if they contract COVID-19, or who live in households with someone who is high-risk. The failure to accommodate can range from denying telework requests to refusing to reassign an employee to a work location with less risk of exposure. Employees may also assert related claims for failure to engage in the interactive process. In a Massachusetts case, a court issued a preliminary injunction allowing an employee to telework as a reasonable accommodation in lieu of termination. After the employee successfully teleworked for four months, the employer denied the request to continue teleworking. The employer issued a blanket statement requiring all managers to report to work and gave them PPE such as N95 masks. The court ruled that the employee’s moderate asthma constituted a disability, and, therefore, the employer should California Special Districts • Jan-Feb 2021


have engaged in the interactive process. Peeples v. Clinical Support Options, Inc., No. 3:20-CV-30144-KAR (D. Mass. Sept. 16, 2020). Employers can also expect an uptick in leave-related claims. The Families First Coronavirus Response Act (“FFCRA”) provided employees with additional leave benefits. Litigation for FFCRA violations is expected to follow along with claims for unlawful denial of leave under the Family and Medical Leave Act, the California Family Rights Act, and other leave laws. The California Occupational Safety and Health Act, requires employers to provide employees with a healthy and safe workplace. Special districts should anticipate litigation from employees who feel districts failed to implement sufficient measures to protect them from COVID-19. Relatedly, districts should be prepared to defend against employees who claim they have been retaliated against for complaining about workplace safety issues, or from exercising their COVID-related rights.

SOCIAL JUSTICE AND PROMOTING DIVERSITY, EQUITY AND INCLUSION The year 2020 will also be remembered for some of the largest public protests in American history and a particularly contentious election year. Influenced by these events, public employees participated in demonstrations, expressed their views on clothing, and spoke out against perceived inequities in and outside the workplace. As a result, employees’ speech on social media and at work became a hot topic for employers. The way employers handled these issues is expected to result in an increase of speech-related claims. Employees claiming retaliation for speaking out can sue under the First Amendment. Public employees have a right to free speech and cannot be retaliated against for expressing their views if they spoke on a matter of “public concern,” spoke in a way that was not pursuant to their “official duties,” and suffered an “adverse employment action” as a result. Further, under Labor Code sections 1101 and 1102, employers cannot prevent employees from participating in politics or threaten employees to adopt certain political views. There are a number of other legal theories employees can use to assert their speech rights. For example, speech related to race or other protected classifications can trigger the protections of anti-discrimination laws like the Fair Employment and Housing Act. In addition, California Volume 16 • Issue 1

protects employees who engage in lawful off-duty conduct. Consequently, special districts may not be able to discipline employees for participating in peaceful demonstrations on their own time. Finally, employees complaining about their employer’s alleged illegal conduct may be protected by statutory whistleblower laws. The charged political environment may also have implications beyond employee speech-related issues. For instance, employers are expected to see a shift in the types of discrimination and harassment claims employees file as claims based on race and gender increase. Further, amidst efforts to improve diversity and inclusion in the workplace, employers may be confronted with “reverse” discrimination claims by employees who feel employers are favoring employees who are not in the majority group in employment decisions. Pay equity claims may also increase.

LOOKING AHEAD While 2020 affected the workplace in ways employers could have never anticipated, special districts can take steps to mitigate the risk of litigation from decisions arising from COVID-19 and the social justice movement. Since the statute of limitations for some claims can be up to three years, districts should maintain all supporting documentation for decisions they have already made. Further, if there is an opportunity to change course on a decision to mitigate risk, districts should consult with their attorneys. Because the pandemic and political discord are likely to continue deep into 2021, special districts should also review and, if necessary, update their policies and procedures. Regarding COVID-19, this means examining how the interactive process and reasonable accommodations are handled. Districts should also be familiar with each type of leave employees may be eligible for and adopt sound returnto-work measures to create a safe working environment. Regarding workplace equity, this means reviewing policies related to hiring and promotion and anti-harassment, discrimination and retaliation, and conducting an equal pay audit. Finally, districts should exercise care when making decisions involving employees who exercised rights related to COVID or advocated for social justice. Elizabeth T. Arce is a Partner and Kaylee Feick is an Associate at Liebert Cassidy Whitmore, one of the largest public sector employment and labor law firms in California. They can be reached at earce@lcwlegal.com and kfeick@lcwlegal.com.

27


MANAGERS CORNER

Empathy is a

SUPERPOWER By Frank Benest

Frank: I am the county’s budget manager. My team of budget analysts is still working from home. County tax revenues have plummeted due to the pandemic and wildfires. We are trying to help our organization adapt by working with departments to not only cuts costs but to find other service delivery models, such as partnering with other agencies to deliver services. I am energized by the opportunity to experiment with new service models. I’m analytic and driven to learn and achieve. Here is my concern. My budget team members are stressed out. We’ve already cut several vacant positions in budget and other areas of finance and there is much uncertainty. I’m trying to be sympathetic to everyone’s distress and feelings. I ask at the beginning our virtual meetings “how are you feeling?” However, I don’t get much feedback. My team members are hunkered down. Do you have any suggestions? 28

Response

I commend you for trying to be sensitive to your team members. People are feeling unhinged, fearful about their health, livelihood, family, community and country. The future is uncertain and scary. However, your sympathy is inadequate. You must demonstrate empathy if you are to lead your team amidst all the disruption. People like you (and me) who are analytic, driven to learn and achieve, and love challenges have difficulty being empathetic. Most of us leaders have “empathy deficits.” Only 18% of leaders who have completed the CliftonStrengths assessment identified empathy as one of their top five strengths (Dan Rockwell, “What If I Suck at Empathy—7 Ways to Create an Empathy Advantage,” Leadership Freak blog, July 2, 2020). The traditional leadership narrative is about you the leader. It is about your vision, your ideas, your goals. However, true leadership is about your followers—what they find meaningful, what they need and want, what they hope to achieve. Leaders can’t force people to follow—they invite them on a journey. California Special Districts • Jan-Feb 2021


Empathy is not sympathy which leads you to feel sorry for the difficulties or misfortunes of others. Empathy is characterized by the ability to: • See the world through the eyes of the other person, and • Understand, acknowledge and consider their unique hopes, fears, and ideas Empathy requires that we leaders see employees as human beings and acknowledge them as whole people— people with families, friends and pets; rents or mortgages to pay; health concerns; and hopes and fears about the future. (Allison Lazenby, “Crisis Reveals Managers’ Superpowers,” root blog, June 29, 2020.)

Leaders tend to over-emphasize their analytic neural network which generates rational thought. This analytic neural network in our brains is used to solve problems and make decisions. Equally important is the emotional neural network which involves our feelings. The emotional neural network in our brains facilitates reflection, relationship, connection, and empathy. As leaders, we must toggle between the two networks if we are to be effective, especially in these uncertain and “messy” times. (Melvin Smith et al., “The Best Managers Balance Analytical and Emotional Intelligence,” hbr.org, June 12, 2020.) To facilitate adaption, leaders must understand what Alexander Caillet, an organizational psychologist, has called the “Thinking Path.” It looks like this:

Why is empathy important?

T---F---A---R

What is empathy?

Empathy has always been a key yet undervalued leadership strength. Now, it has become central to our leadership capacity. Why? First, empathy creates connection and relationship. Your formal authority as a manager can only force a minimal level of performance and compliance. People are more likely to choose to follow if they feel connected to you as a leader and person. Second, in this time of crisis, we need employees and organizations to adapt. Empathy enhances influence in times of turbulence. A leader cannot exert influence without acknowledging the hopes, values and concerns of people and tying positive change to those values and concerns. Once a leader acknowledges people’s feelings and then responds to their concerns, followers tend to be more open to listening, learning, and changing. Empathy is precondition for positive adaptation. Third, to make effective decisions, leaders need data from employees and other stake-holders. This data is not just facts and figures but their beliefs and values based on their life experiences as well as current emotions.

Volume 16 • Issue 1

Let’s start from right to left. “R” stands for “Results.” That is what we all seek. Results come from “A” or “Actions.” Therefore, to achieve a balanced budget (Result), we need to cuts costs and seek new ways of delivering service (Actions). However, Actions don’t flow directly from “T” or “Thoughts.” In your case of the budget, the “Thought” is “we need to creatively balance the budget in the face of plummeting revenues.” Between the “Thought” and the “Action” is the “F” or “Feeling.” People’s emotion has a big impact on the hope for “Action.”

Again, we typically over-emphasize the “T” and under-emphasive and under-value the “F.” If people feel disheartened, demoralized, or fearful in any way, they are unlikely to embrace appropriate change. If people feel purposeful, hopeful, supported, even inspired, they are more likely to act in alignment with the “Thought.” Consequently, empathy (and responding to what we discover through empathy) is critical to bridging “Thought” and “Action” and thereby achieving desired “Results.”

How do you cultivate empathy?

For many of us, empathy is not an innate trait. Rather, it is a learned skill. You can develop empathy like other skills through conscious and reflective practice. (See Peter Bregman, “Productive Conversations Take Real Empathy,” hbr.org, March 4, 2020.) I’d like to suggest seven practices to cultivate empathy: 1. Start with self-empathy Before interacting with others, check-in with yourself. Ask yourself: How am I really feeling? What is energizing me? What is frustrating me? What are my hopes, concerns and fears? Am I eating, drinking, sleeping, or crying too much? Do I feel alone or isolated? Then develop a plan to minimize any emotions or behaviors continued on page 30

Equally important is the emotional neural network which involves our feelings. The emotional neural network in our brains facilitates reflection, relationship, connection, and empathy. As leaders, we must toggle between the two networks if we are to be effective, especially in these uncertain and “messy” times.

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that are undercutting your health, energy, connectedness with family and others, or your capacity to lead. For instance, develop a walking or exercise routine or schedule times to connect with others. Ask for help when you need it. (See Whitney Johnson and Amy Humble, “To Take Care of Others, Start By Taking Care of Yourself,” hbr.org, April 28, 2020.) 2. Show up to be consciously present We managers are always busy and want to make decisions and take action. To practice empathy, leaders need to slow down and be attentive. You want to be attuned to your team members and sense how they are present, what they are feeling, if they are distracted. 3. Ask questions to connect and to solicit data of all kinds Instead of asking “how are you doing?,” you may wish to ask some other questions, such as: • What are you working on? • Why is this project important or meaningful to you? • What’s working for you? • What is undercutting your energy? • What is one step forward?

• How is your family handling current difficulties? • How can I or other team members support you? (See Dan Rockwell, “How to Stop Asking, ‘How are You?’ and Create Real Conversation,” Leadership Freak blog, August 20, 2020.) Ask these questions with a curious mind. Before responding to what a team member is saying, say “tell me more.” 4. Stop talking and actively listen We leaders typically love the sound of our voice. I do. However, to promote empathy, you must stop talking, listen and acknowledge what you hear. As Dan Rockwell suggests, “Connection begins as people feel understood…Issues are resolved after people feel understood.” (“The Path From Empathy to Accountability,” Leadership Freak blog, Nov 15, 2019. 5. Create a safe environment for sharing Of course, the best way for a leader to create an environment in which people feel safe to express themselves is to model that behavior. Share what you are feeling, what concerns you, what challenges you are facing, what are some

mistakes that you have made, and what is going on in the daily struggles and joys of family life. 6. Focus on purpose Because a lot of people are disheartened, focus on purpose and meaning. As Dan Pink asserts in his book Drive (2009), purpose is a critical self-motivator. So, instead of immediately jumping into “what” we need to do and “how” we are going to do it, start with the “why.” Of course, different people may perceive different meaning in the work. Therefore, ask team members “why is this important to you?” You can also help people connect the dots between their work and the big organizational goals. For example, you can explore with your team members how their work on the budget will help the county maintain public safety, health, and safety net services for struggling county residents. 7. Do something As a leader, we want to demonstrate to people that you heard them and that the conversation mattered. Therefore, you want to share with them how the conversation changed your thinking or the course of action that you were contemplating. To influence others, you must let them influence you. Letting people know how you took into account their feelings and perspectives builds connection and trust. Even if you decide not to change course, you can explain your thought and decisionmaking process after you had the original discussion with the team. (Joe Lipham, “What We Need Most Today,” trainingmag.com, July 14, 2020.)

Empathy is a superpower

In these uncertain and turbulent times, leaders won’t be able to help team members adapt without understanding and acknowledging their emotions and feelings. For leaders, empathy is a superpower.

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California Special Districts • Jan-Feb 2021


Volume 16 • Issue 1

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TAKE ACTION

COVID-19 AND STATE BUDGET Special Districts Urge Equitable Access in State Budget

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t’s a new year, a new legislative session, and the same COVID-19 with many of the top issues of 2020 back on the agenda, including wildfires, climate, housing, and homelessness just to name a few. In anticipation of the work ahead, legislative leaders established several new committees, including the Joint Legislative Committee on Climate Change Policies and Joint Legislative Committee on Emergency Management. On January 8, Governor Gavin Newsom unveiled his 2021-22 State Budget Proposal outlining his funding priorities for the year and setting in motion the Legislature’s budget process. In the meantime, legislators will continue introducing new legislation through the bill introduction deadline of February 19.

Governor Gavin Newsom unveiled his $202.1 billion budget proposal for the 2021-22 fiscal year. While the impact of the COVID-19 pandemic reverberated throughout the presentation, Governor Newsom sought to emphasize that the initiatives to be undertaken by his administration in the coming weeks and months were part-and-parcel with the state’s economic recovery. An overarching focus of Governor Newsom’s budget presentation was equity, demonstrated by investments in vulnerable and disadvantaged communities. Social and environmental justice was a common thread throughout the Governor’s proposals aimed at advancing the public’s health, promoting COVID-19 recovery and job creation, and funding climate-related infrastructure improvements to make communities more resilient. In response to the proposed State Budget, CSDA Chief Executive Officer Neil McCormick urged Governor Newsom to include special districts

TAKE ACTION SEASONS OF ADVOCACY: WINTER • Meet and Greets: Request a meet and greet with your State Legislators and members of Congress, prioritizing those who are newly elected. • eNewsletters and Social Media: Sign up for the eNewsletters of your newly elected State Legislators and members of Congress and follow their social media accounts. Invite them and their staff to follow your district’s social media and subscribe to your eNewsletter. • Grassroots Mobilization Survey: Update any new legislative relationships you have developed via the CSDA Grassroots Mobilization Survey at csda.net/take-action. • Meeting or tour: Set up a meeting or tour for your local news reporter or editor.

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and their more than 120,000 frontline workers in the state’s remaining $800 million in COVID-relief funding. McCormick stated, “Our fire protection, healthcare, water, sanitation, port, childcare, and other service providers have yet to receive the direct access to funding that other government agencies, as well as businesses and nonprofits, have received.” He continued, “CSDA is eager to resolve this oversight and looks forward to working with the Administration and State Legislature to ensure special district essential workers and the vulnerable communities they serve throughout California receive equitable access to these important relief funds.”

CSDA Requests Amendments to Draft Surplus Land Act Guidelines

Final guidelines for the Surplus Land Act (SLA) were released in January 2021 by the California Department of Housing and Community Development (HCD). These the final guidelines are published to hcd.ca.gov. Look for CSDA to update members via its Advocacy News blog at www.csda.net.

On January 8, Governor Gavin Newsom unveiled his 2021-22 State Budget Proposal outlining his funding priorities for the year and setting in motion the Legislature’s budget process. In the meantime, legislators will continue introducing new legislation through the bill introduction deadline of February 19.

California Special Districts • Jan-Feb 2021


In 2019, Governor Gavin Newsom signed AB 1486 (Ting, 2019), which made several changes to the requirements in the Surplus Land Act (SLA). In response to AB 1486, on November 13, 2020 HCD released Surplus Land Act (SLA) draft guidelines with the associated comment period concluding December 7, 2020. CSDA took the lead in organizing and drafting a local government coalition comment letter and encouraged special districts who lease land or may otherwise be impacted by the guidelines to also submit comments. More than two dozen special districts alerted CSDA to their comment submissions. However, it remains to be seen if this substantive feedback persuaded HCD to reconsider some of the more problematic sections of the draft guidelines. Assemblymember Phil Ting, the legislator who authored AB 1486, has indicated plans to author an AB 1486 technical clean-up bill this session.

Interest in Amending Mitigation Fee Act Persists

As the State Legislature continues to grapple with the issues of the day, including housing and homelessness, some interests would like to revisit the issue of developer fees as a means of promoting new housing. Local agencies depend on these fees to mitigate the impact of new development on parks, fire protection, flood control, and other essential services. Developer fees are those fees and charges found in the Mitigation Fee Act (MFA) that include both impact fees and connection and capacity charges. Prior to the COVID-19-related changes to the Legislature’s priorities in 2020, legislators submitted a robust package of housing and MFA related measures. These included changes to nexus methodologies, fee protests, fee deferrals, and caps on the totality of fees per project. The same week, the State Senate and Assembly Committees for housing and local government held a joint informational hearing on the issue titled, “The Price of Civilization” which was a robust discussion about the role that fees play, or don’t play, in the production of housing stock and livable communities. CSDA members Irvine Ranch Water District and North of the River Recreation and Park District spoke on a panel and discussed capacity and connection charges and impact fees respectively. A clip of North of the River Recreation and Park District’s moving testimony can be viewed on CSDA’s YouTube channel. Volume 16 • Issue 1

Take Action brochure Designed to equip district leaders for grassroots advocacy and public outreach. Request copies from the CSDA office or when speaking with your public affairs field coordinator.

Special districts understand the need for affordable housing, but reasonable, one-time developer fees are among the only options they have to pay for the essential infrastructure the families living in new homes will depend on. Before arbitrarily reducing or eliminating fees on the developers who build housing, policymakers must answer the question of who will pay for the fire protection, water, parks, and other infrastructure to serve the new homes? It is fair and equitable for new users to pay for new infrastructure. Removing developer fees would shift the burden of funding infrastructure expansion to existing residents and force them to pay for themselves and their new neighbors, which would likely create more NIMBY opposition to additional housing projects. Disadvantaged communities unable to afford local tax and fee hikes on families and business will be hurt most by reducing or eliminating developer fees.

Updating the Brown Act to Meet the Next Emergency

CSDA is looking to update the Brown Act to allow for remote meetings during emergency declarations so that public agencies will not have to wait for an Executive Order from the Governor

to hold such meetings. On March 19, 2020 California Governor Gavin Newsom issued a stay-at-home order to protect public health and establish consistency in health orders across the state in order to slow the spread of COVID-19. In light of the statewide stayat-home order and the need to keep individuals physically distanced from one another, Governor Newsom issued a number of subsequent executive orders (N-25-20, N-29-20, N-35-20) modifying the requirements of the Brown Act so that local agencies may meet remotely without requiring that the public have physical access to the remote meeting locations. CSDA intends to sponsor legislation to update this area of the Brown Act and is seeking feedback from members regarding their experiences meeting remotely during the pandemic. 33


MANAGING RISK

COVID-19 WAIVERS OF LIABILITY By Debbie Yokota, ARM, SDRMA Chief Risk Officer

As businesses, both public and private, are attempting to reopen or remain open during the pandemic while also protecting the public and customers they serve, many are turning to the use of Pandemic Waivers of Liability. By having the public or customers, sign these waivers the entities hope to reduce their liability exposure should someone contract COVID-19 while at the entities’ location. At minimum, pandemic liability waivers offload the responsibility of deciding when it is responsible to open. Unfortunately, the social and ethical purposes of liability waivers may not be applicable to a pandemic. They may make sense for many inherently dangerous activities such as sporting events or recreational events, but the full risks of COVID-19 are not fully disclosable to the person signing the waiver.

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Let’s first start with what a pandemic liability waiver is: an exculpatory agreement. In most exculpatory agreements, one of two things is stipulated: (1) one party is relieved of any blame or liability arising from the other party’s wrongdoing with regard to a particular activity, and/or (2) one party (usually the one that drafted the agreement) is freed of all liability arising out of performance of that contract.

California Special Districts • Jan-Feb 2021


An exculpatory agreement is usually a provision contained in a contract between a service provider and a participant, relieving the service provider from any liability resulting from loss or damage sustained by the participant. The terms “waiver” and “release of liability” are usually used interchangeably. An example of an exculpatory clause is a dry cleaner’s receipt that includes a disclaimer purportedly relieving the dry cleaner from any liability for damage to the clothing during the dry-cleaning process. Disclaimers can appear as warning signs posted on playgrounds, sports arenas, constructions sites or other areas involving risk of physical injury (“enter at your own risk” or “use at your own risk”). A typical waiver of liability form may read as follows:

I expressly, willing, and voluntarily assume full responsibility for all risks of any and every kind involved with or arising from my participation in parachuting activities with Company whether during flight preparation, take-off, flight, landing, travel to or from the take-off or landing areas, or otherwise. Without limiting the generality of the foregoing, I hereby irrevocably release Company, its employees, agents, representatives, contractors, subcontractors, successors, heirs, assigns, affiliates, and legal representatives (the “Released Parties”) from, and hold them harmless for, all claims, rights, demands or causes of action whether known or unknown, suspected or unsuspected, arising out of the parachuting activities….

They include liability waivers, releases of liability, assumption of risk agreements, pre-injury releases, disclaimers of liability, sign postings, etc. Most people are unaware of what rights, if any, they are giving up or waiving, when they sign such exculpatory agreements. For many years, many professionals held the misconception that waivers are not worth the paper they are written on. Over time, this erroneous notion was replaced by the equally erroneous belief that waivers can offer total liability protection for all facility and service providers under all circumstances. Neither belief is correct. The enforceability of pandemic liability waivers will be determined when the family of someone who signed, got COVID-19, and died tries to sue the entity where they think the virus was contracted. Judges will have to make these decisions. And they cannot easily use previous cases to decide because pandemic liability is unprecedented. The consequences of allowing people to give up their right to sue would be disastrous. But not recognizing waivers (which means allowing suits) does not mean suits will prevail. In many cases, it will be difficult to prove that one got sick at the event in part because of COVID-19’s incubation period. A blanket expectation that businesses shoulder the financial burden of continued infection would be just as damaging. So, should waivers really stop lawsuits? No. Will those who sue win? Depends. A waiver might dissuade someone from suing, but what if you went to an event and came home only to infect your neighbor or grandma? The person who didn’t sign the release could sue. But even so, a release may nonetheless be of no force

continued on page 36

SDRMA Board and Staff Officers

Staff

MIKE SCHEAFER, PRESIDENT Costa Mesa Sanitary District

LAURA S. GILL, ICMA-CM, ARM, ARM-P, CSDM, Chief Executive Officer C. PAUL FRYDENDAL, CPA, Chief Operating Officer ELLEN DOUGHTY, ARM, Chief Member Services Officer DEBBIE YOKOTA, AIC, ARM, Chief Risk Officer WENDY TUCKER, Member Services Manager ALANA LITTLE, Health Benefits Manager JENNIFER CHILTON, CPA, ARM, Finance Manager DANNY PENA, Senior Claims Examiner HEIDI SINGER, Claims Examiner II ASHLEY FLORES, Management Analyst/Board Clerk TERESA GUILLEN, Member Services Specialist I MARGARITO CRUZ, Accountant CANDICE RICHARDSON, Member Services Specialist I

SANDY SEIFERT-RAFFELSON, VICE PRESIDENT, Herlong Public Utility District ROBERT SWAN, SECRETARY, Groveland Community Services District

Members of the Board DAVID ARANDA, CSDM JEAN BRACY, CSDM, Mojave Desert Air Quality Management District TIM UNRUH, CSDM, Kern County Cemetery District No. 1 JESSE CLAYPOOL, Honey Lake Valley Resource Conservation District

Consultants DAVID BECKER, CPA, James Marta & Company, LLP LAUREN BRANT, Public Financial Management DEREK BURKHALTER, Bickmore Actuarial CHARICE HUNTLEY, River City Bank FRANK ONO, ifish Group, Inc. ANN SIPRELLE, Best Best & Krieger, LLP KARL SNEARER, Apex Insurance Agency DOUG WOZNIAK, Alliant Insurance Services, Inc.

Volume 16 • Issue 1

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

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and effect if it’s contrary to public policy, the business was grossly negligent (e.g., failed to take reasonable precautions), or there is law or other remedy prohibiting them. Over the last century, each state has developed its own case decisions and legislation about the enforcement of exculpatory provisions in contracts. California courts have identified six criteria established to identify the kind of agreement in which an exculpatory clause is invalid as contrary to public policy: (1) It concerns a business of a type generally thought suitable for public regulation; (2) The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some member of the public; (3) The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least any member coming within certain established standards; (4) As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks her services;

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(5) In exercising a superior bargaining power, the party confronts the public with a standardized adhesion contract or exculpation, and makes no provision whereby a purchaser may pay additional fees and obtain protection against negligence; and (6) As a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents. Tunkl v. Regents of the University of California, 60 Cal.2d 92 (Cal. 1963). To be enforceable, many states require waivers to be narrowly and clearly drafted to fully notify the parties of the significance of the document and inform them as to the specific nature of what is being waived. In some jurisdictions, the waiver must be a separate document with its own signature line, should not use excessive legal jargon, and should discuss only the risks associated with the activity, and the release from liability due to negligence. Generally, even if the waiver is held valid, it will apply only to ordinary negligence. California courts have held that such agreements waiving all negligence generally are void on the ground that public policy precludes enforcement of a release that would shelter aggravated misconduct or gross negligence. City of Santa Barbara v. Superior Court, 41 Cal.4th 747 (Cal. 2007) While Pandemic waivers of liability can potentially have benefit in holding an entity harmless to the person who signed the waiver contracting COVID-19, it remains to be seen whether that waiver of liability will extend to family members or others who contract COVID-19 from the person who signed. In California, it is also important to follow the six requirements outlined in Tunkl v. Regents of the University of California, 60 Cal.2d 92 (Cal. 1963). Negligent acts can never be waived by a waiver of liability so public entities need to ensure they are following the CDC guidelines as well as those guidelines by their local county health agency.

California Special Districts • Jan-Feb 2021


MONEY MATTERS

the quality of budgeting is critical to long-term financial sustainability and trust in government.

Local governments must answer some budgeting questions to improve the budgeting process. The following are recommended key topics to help in preparing your annual budget: • What is the best way to budget for my local government? • Why is budgeting important beyond the finance office? • How can governments best allocate resources? • Which budget practices improve equitable provision of services? • How can a budget encourage alignment with community priorities? • How to overcome significant technical challenges in budgeting. • How can governments adjust, survive and thrive during a crisis? Paul J. Kaymark, CPA is an Audit Services Partner with CSDA Business Affiliate Nigro & Nigro, PC. Paul can be reached at pkaymark@nncpas.com or (951) 698-8783.

BUDGET PREPARATIONS FOR SPECIAL DISTRICTS By Paul Kaymark, CPA Audit Services Partner at Nigro & Nigro PC

A

special district local annual budget indicates an agency’s projected revenue and costs, as well as its plan for the future—what revenue will pay for which departmental services and for whom those services exist. Development of the annual budget in the public sector is more than just number crunching; it reflects a strategic plan and its conception should consider the needs and priorities of all stakeholders. The development, approval, and implementation of a public agency’s budget are critical steps of the budget process.

As the saying goes, “Don’t put the cart before the horse.” You won’t be able to get anywhere worth going if things are out of order, and that certainly rings true in the case of local government budgeting and planning processes. There is a proper order to ensure your funds are spent wisely. To address these challenges, several popular approaches to the budget process such as incremental budgeting, zero-base budgeting, and priority-based budgeting have been used by governments. However, all have their drawbacks and none are ideal in all situations. As governments now focus extra attention on the budget amid the global recession and pandemic, improving

Volume 16 • Issue 1

Murphys Sanitary District was approved for financial assistance from SRF for the upgrade of their wastewater treatment plant, with funds to be delivered in the form of a reimbursement grant. Unfortunately, the COVID-19 health crisis caused delays in processing reimbursements for the district. With its reserves depleted, the district found itself in urgent need of funds to pay a contractor invoice. A longtime CSDA member, Murphys Sanitary District reached out to the CSDA Finance Corporation for assistance in obtaining a $4 million bridge loan to tide them over. The Finance Corporation consultants expedited their efforts and in a short time were able to identify two bridge funding options for the district, including an affordable option that allowed the district to make prepayments on the loan with zero prepayment penalty. “Murphys Sanitary District thanks you all for your great work ethic, professionalism, and customer service in securing our financing. Everyone was wonderful to work with and the communication was amazing!” - CINDY SECADA, ADMINISTRATION MANAGER Visit csdafinance.net to request a no cost, no obligation rate quote.

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DISTRICTS MAKE THE DIFFERENCE

ON-DEMAND AVAILABLE NOW

VIRTUAL TOURS SHOWCASE SPECIAL DISTRICTS MEETING THE MOMENT Four one-hour tours showcasing the many special districts tackling California’s biggest challenges are now available online as examples of districts making a difference throughout the state. In 2020, CSDA took our annual tour series virtual for legislative staff, expanding accessibility and protecting the health of everyone involved. Nearly 200 federal, state, and local officials participated in five tours of 15 special districts focusing on the following pressing topics facing our communities:

• • • • •

Mitigating Wildfires and Protecting Our Watersheds Adapting to Climate Change and Resource Management Advancing Groundwater Sustainability Protecting the Health and Wellness of Our Community Building Infrastructure to Grow Our Economy

To view the four tours now available on-demand and download printable tour packets, visit csda.net/SpecialDistrictsTour.

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California Special Districts • Jan-Feb 2021


Every year, CSDA organizes educational tours for Capitol staff and other state, local, and federal officials. These tours offer a snapshot experience of the diverse special district sites and infrastructure that provide daily services to millions of Californians throughout the state. At the close of this learning opportunity, Capitol staff and other attendees gain a greater understanding of the special districts communities have formed in an effort to: • Effectively and efficiently deliver essential local services. • Promote accessible and responsive government. • Serve unique neighborhoods or regions based on local needs. • Build, operate, and sustain critical infrastructure and protect public health and safety. Similar to previous years, CSDA worked together with partner associations in developing and presenting the special district tours. Accordingly, CSDA would like to recognize and thank our 2020 tour partners: • Association of California Healthcare Districts • California Association of Resource Conservation Districts • California Municipal Utilities Association • Mosquito and Vector Control Association of California

Corcoran Student Wins First Place Scholarship in Special District Video Contest By David Duran, Duran Kinst Strategies

Reyna Carrera, a student from Fresno Pacific University in Corcoran, won first place in the 2020 Districts Make the Difference Student Video Contest. The statewide contest encourages high school and college students to learn about the local governments that provide their families essential services such as water, electricity, fire protection, wastewater, garbage removal, and more. This year, students were challenged to make a video of less than 90 seconds that would raise awareness and understanding of the special districts that serve communities and regions across the state. Special districts are local governments that are formed, owned, and governed by a community to specialize in meeting a specific local need. The video contest is organized annually by Districts Make the Difference, the public outreach campaign launched by CSDA. “In the midst of the COVID-19 pandemic, it is great to see students continuing to learn and use technology to engage in civic action,” said Neil McCormick, CSDA Chief Executive Officer. “Students like Reyna will be the future special district leaders making a difference in our communities.” As the first prize winner, Reyna received a $2,000 scholarship, while second place winners, Briana Wong and Andra Cheng of Monterey Park received $1,000, and third place winner, Joseph Carrol of Morgan Hill received $500. In addition to their scholarships, each student nominated a teacher who received an additional $500 to put towards their classroom. Reyna nominated Shannon Turmon to receive this cash prize. With a record 60 entries last year, it was a tough competition for all who entered. Initial entries were scored by CSDA officials based on four criteria: accuracy and effectiveness, creativity and originality, production quality, and entertainment value. The five videos with the highest overall scores were posted on the Districts Make the Difference Website for public voting to determine the three winners. To see all the winning videos and to learn more about all special districts, visit DistrictsMaketheDifference.org.

A public outreach campaign supported by the California Special Districts Association to provide information about special districts, descriptions on how they serve communities, and compelling content. Visit us at districtsmakethedifference.org.

Volume 16 • Issue 1

MAKE THE

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WHAT'S SO SPECIAL

NEW AGREEMENT WILL CONSERVE THREATENED STEELHEAD AND SECURE WATER OPERATIONS ON THE CALAVERAS RIVER FOR 50 YEARS By Midpeninsula Regional Open Space District, Open Space Newsletter

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he National Oceanic and Atmospheric Administration - Fisheries has approved a final Habitat Conservation Plan (HCP), sponsored by Stockton East Water District (Stockton East), for the Calaveras River that is designed to protect threatened fish species while also providing long-term security for crucial water operations through 2070. Stockton East has committed to an array of conservation actions to benefit fish populations on the Calaveras River over that time period. The Water District is proud that the Calaveras River supports a healthy steelhead population, said General Manager Scot A. Moody. “The District is thrilled that it can support the fishery while at the same time protecting the needs of our agricultural and municipal water users,” he said. “We’re making a commitment, and we get some certainty in return.” “This is an exciting step in conserving steelhead in a lasting way that works for everyone,” said Erin Strange, NOAA Fisheries Supervisory Fishery Biologist for the San Joaquin River Basin. “We’re committed to partnering with Stockton East and other stakeholders on the Calaveras River to support a healthy watershed and reliable water supply.” The HCP’s fish conservation actions primarily focus on Central Valley steelhead, 40

California Special Districts • Jan-Feb 2021


DISTRICT INFORMATION HERE DISTRICT SIZE: 65,000 ACRES POPULATION: 770,000

LOCATION: SANTA CRUZ MOUNTAINS WEBSITE: OPENSPACE.ORG

which are listed as threatened under the Endangered Species Act (ESA). Rainbow trout and Chinook salmon will also benefit. Conservation actions include a guaranteed minimum flow in key fish habitat, screening water diversions, improving fish passage over structures, water conservation measures, and continued fisheries research and monitoring on the Calaveras River. Annual summertime monitoring has shown that the Calaveras River supports a healthy population of rainbow trout, some of which turn into steelhead. Although the population declined during the peak of the recent drought, it has since recovered to pre-drought abundance levels. “There is something here for everyone,” said Monica Gutierrez, Fisheries Biologist, who has led the development of the HCP for NOAA Fisheries’ Central Valley Office in Sacramento. “The Water District gets security and predictability in its water supply while we are also improving conditions for fish in key habitat at a critical time.” The plan covers the area of the lower Calaveras River from New Hogan Reservoir to the confluence with the San Joaquin River. Stockton East makes water available to a population of 358,000 within the greater Stockton urban area, approximately 6,373 agricultural parcels, and includes approximately 143,000 acres located in San Joaquin and Calaveras counties. This agreement protects existing uses of water in the district from alleged violations of the Endangered Species Act, providing stability and continuity for both water operations and conservation measures. The final plan is the culmination of a 13-year plus effort. Stockton East has invested significant funding in the development of the plan since 2003 and will commit an estimated $200,000 to $400,000 per year to implement the activities required by the agreement, as well as the cost of fish screens and other required improvements. Since Habitat Conservation Plans were first developed in 1982, some 400 have been finalized nationwide; however, this is the first HCP completed by NOAA Fisheries in the Central Valley. HCPs are planning documents related to the “take” of threatened and endangered species, which includes killing, injuring, capturing, or harassing a species. The plans include the anticipated impacts of activities or development on sensitive species, as well as how those impacts can be minimized or mitigated. “This plan is a result of an incredible amount of work over several years -- it’s a testament to the dedication of Stockton East Water District and our NOAA Fisheries staff who put immense energy and creativity into developing an approach that provides the infrastructure, science, and species protections to meet everyone’s needs,” said Cathy Marcinkevage, NOAA Assistant Regional Administrator. More information about the plan, including a new video, is available on the SEWD website at: https://sewd.net/habitatconservation-plan/ Volume 16 • Issue 1

YEAR ESTABLISHED: 1972

Dogs at Work Provide Companionship and Camaraderie

T

he Stockton East Water District has maintained a ‘security detail’ of two dogs for over 25 years. Our current canine employees are Mia, a 7 year-old female yellow labrador mix, and Gus, a 2 year-old male black labrador mix. Our current dogs, like our past dogs, were both adopted from the local pound. Gus and Mia enjoy sharing employees’ lunches and chasing rabbits around our campus. Electrician Brett Clark said the dogs “provide a sense of security because they always let you know when there is someone coming. Even better, they create a family type of atmosphere that is rare to have in the workplace.” Agencies interested in incorporating dogs into their workplace should consider the outcome they are trying to achieve. Our first tip is to adopt dogs that you would adopt for yourself or for your family. We work for the public and want to maintain a welcoming facility, so friendly dogs are a must; plus we, like most other agencies, do not want to create unnecessary liability. Our dogs are here to provide companionship and protect our employees that work hard throughout the night to continue making potable water, not guard our facility and chase off passersby. The biggest challenge is selecting the right dog for the environment, which can be difficult when selecting a rescue dog. If a dog is adopted and the dog turns out to be a poor fit, which has happened, we work to rehome the dog and then search for another suitable replacement. “The best thing about having dogs at the plant is they give most of us something in common. Almost everyone has fun stories and pictures of them to share. These two are very loveable characters,” said Water Treatment Plant Operator Sheryl Morris. 41


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