September 2014

To: Mayor and Town Council

From: George J. Rodericks, City Manager

Date: September 2014

SUBJECT: SEPTEMBER 2014 MANAGER’S REPORT

The Monthly Manager’s Report is a post-review summary of issues and Town activity during the prior month. The last issued Manager’s Report was Summer 2014. This Report encompasses activity during the month of September. Should you wish any additional information on any of the items, feel free to contact me directly. Most, if not all, of the issues and topics should be familiar to each of you.

As you read through the report, information gets “older” as you travel through the items (i.e. the most recent items are listed first).

Upcoming Major Agenda items for October 15: • Second Reading & Adoption of Adjustments to Commercial Refuse Rates • CCAC – Approval of Request for Proposal (RFP) for Design Services • Approval of El Camino Real Operational Study RFP • Approval of Art in Public Facilities Policy • Approval of Bicycle/Pedestrian Master Plan Priority Project List • Public Hearing on the Housing Element Update • Public Hearing on Modifications to the Accessory Structure Ordinance

Coming up in future meetings…(dates are tentative) • Review of Wireless Telecommunications Facilities Ordinance – November 5 Study Session • Review of Encroachment Permit Ordinance – November 5 Study Session • Award of Contract for ECR Operational Study – November 19

Table of Contents 1. Construction Site Sweeps ...... 2 2. Disaster Exercise – October 16 ...... 2 3. PG&E Self-Report to the Public Utilities Commission on Inadequate Operator Qualified Ground Patrols ...... 4 4. P&R Request for Revenues/Expenses for the Park ...... 4 5. Player Capital Tennis Open House ...... 4 6. M-ALL Agreement Status – DONE ...... 5 7. Civic Center Project Status ...... 5 8. Candidate Open House ...... 5 9. Solar Panel Installation Permits ...... 5 TOWN OF ATHERTON MANAGER’S MONTHLY REPORT Page 2 of 14 10/3/2014

10. Fire Department Pancake Breakfast ...... 6 11. Event Garden ...... 6 12. Planning Commission Meeting ...... 7 13. Arborist ...... 7 14. Update on Animal Services Negotiations ...... 8 15. Refund for Animal Services – FY 2013-14 ...... 9 16. PG&E’s Line 109 Project ...... 9 17. Table-Top Emergency Preparedness Training ...... 10 18. Middlefield/Glenwood Intersection – Traffic Counts ...... 11 19. Glenwood Speed Signs ...... 11 20. Funding Allocation for Measure M ...... 11 21. Planning Commission Meeting ...... 12 22. 80% Pension Funding Myth ...... 12 23. Pension Blog – Contractor versus Employee ...... 12 24. Emergency Services Agreement ...... 13 25. El Camino Real Visibility Improvements ...... 14

Manager’s Report

1. Construction Site Sweeps

On September 23, representatives from Building, Code Enforcement, and Public Works swept assigned areas of the Town between 7 am and 8 am. Approximately 52 sites were visited with most sites locked up or workers waiting quietly. Four sites received warnings for starting early. No Administrative Citations were issued. We will be revisiting the following sites for a follow- up visit:

• 81 Ridgeview • 318 Selby • 82 Linda Vista • 60 Linda Vista • 96 Ridgeview

2. Disaster Exercise – October 16

The following information was distributed to the press in the hopes of getting some coverage for our event:

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“Atherton will be conducting an integrated earthquake response exercise in October as the culmination of emergency preparedness activities that have been taking place at the city management level in 2014. This drill has been in the planning stages for a year and, while timely, is not as a result of the recent earthquake in Napa. The Town is planning to subsequently organize a town-wide meeting to discuss the importance and rationale of emergency prep for all community members and what individuals can do to make themselves and their neighborhoods better prepared to handle events like an earthquake or other natural disasters.

The Atherton Town staff has been ramping up their disaster preparedness efforts this year in preparation of a “live” exercise to take place on October 16 as part of the Great California Shake Out. The Great California Shake Out is a now worldwide exercise to practice Drop, Cover, and Hold On at 10:16 am on October 16. www.shakeout.org/california. Locally, staff will be working with the Atherton Disaster and Preparedness Team (ADAPT – www.getreadyatherton.org), local Community Emergency Response Teams (CERT), local schools, neighborhood groups, Menlo Fire and the County Office of Emergency Services (OES) to host a “live” exercise to test local response and resources. To prepare for the exercise, Atherton’s Town staff organized a series of practice drills throughout the year testing local response to flood events, train derailments, evacuations, and hazardous chemical spills.

The Town’s Emergency Preparedness Training Coordinators have been meeting with local emergency response agencies and local schools to develop and test emergency scenarios. Last week, Atherton staff was called out to respond to an emergency scenario (train derailment and hazardous material spill). The team opened the Town’s Emergency Operations Center (EOC) and conducted a tabletop response walking through exactly what to do and what not to do. Once activated, the Emergency Operations Center is run by the EOC Director - in Atherton’s case, this is the City Manager. The EOC is divided into five separate and distinct operational areas: Administration, Logistics, Planning, Operations, and Finance. All Town staff has been trained in the various operational areas and the practice drills have given staff the opportunity to work several types of localized disasters as an EOC team.

The October exercise at the Town EOC and Management level will run concurrent with ADAPT’s efforts at the neighborhood level (in the Lindenwood area) coordinating a simulation drill involving “neighbor checks", spot checking homes for potential damage and sending/receiving information (via Ham radios) from their command posts to Atherton’s EOC. The exercise will further enhance the Town’s response capabilities and functionality. The goals are:

• Flush out any issues that might arise at the EOC level, issues linking the EOC to the neighborhood level and issues with self-organization, communication and deployment at the neighborhood level. • Give field staff and volunteers the opportunity to respond to a live exercise involving a local school campus and a localized disaster.

On the day of the exercise, Council Members are encouraged to participate as observers and can view the activity at the Town’s EOC or visit the Lindenwood response. You will be required to “check-in” as an observer to staff organizing the event. Sergeant Brad Mills and/or ATCM

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Theresa DellaSanta will be providing you with more details as we get closer to the event.

3. PG&E Self-Report to the Public Utilities Commission on Inadequate Operator Qualified Ground Patrols

We received an advisory notice from PG&E regarding a self-report to the PUC. PG&E is required by the California Public Utilities Commission (CPUC) whenever to self-report any potential compliance issue they have identified. The notification does not represent a concern with the safety of services in the community. The following is an excerpt from their notice to the Town:

“...At PG&E we go to great lengths to make sure that all employees have the training they need to do their jobs and help create the safest, most reliable gas system in the nation. Beginning two years ago, we’ve required PG&E employees completing gas pipeline ground patrols and ground investigations of aerial patrol observations to hold operator qualifications (OQs) for patrolling, as well as OQs for atmospheric corrosion, pipeline inspection, and pipeline markers. A review of ground patrol and ground investigation forms identified 33 individuals who completed these activities without holding all of the required OQs.

To correct the situation, PG&E has implemented a centrally-administered Patrol OQ Control Process, which includes regular reviews of completed patrol and follow-up investigation forms to verify that employees completing these tasks have all of the required OQs. Documentation of patrols completed by personnel who are not fully operator-qualified is considered invalid and is returned to the field for the work to be performed and documented by an operator-qualified ground patroller.

Our goal is to become the safest and most reliable gas company in the nation. As part of this, we are committed to ensuring full compliance with all applicable requirements, including communicating self-reports of this type to you in our local communities. We are actively engaged with the CPUC to ensure its complete satisfaction with our resolution of this matter...”

4. P&R Request for Revenues/Expenses for the Park

We had a request from the Chair of the Parks & Recreation Committee for more information related to the revenues and expenditures in the Park. We provided Mr. Roeser with a copy of the Budget Information for the Park (page 104) with total revenue against total expenditures; and we provided the following links to OpenGov.

Public Works Park Maintenance and Program Costs

Public Works Park Revenues

5. Player Capital Tennis Open House

Player Capital is hosting a tennis event (open house) on October 4 from 10:30 am to 12 pm. Invites have been sent out to the community (and key holders) inviting them to come out and

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meet the Player Capital staff and take part in some food and fun. There will be free adult and kids clinics along with a “hit for prizes” event sponsored by Tennis Town & Country.

6. M-ALL Agreement Status – DONE

The final agreement has been executed by all parties and M-ALL is working on the final revisions to their submitted plans through the Building Department Plan Check. They have paid all permit fees related to processing of their development application. We have also negotiated a number of site improvements beyond the basic project scope to address pathway issues, facility improvements, planning for future improvements (conduits, etc.), parking lot improvements, and site electrical. Expectation is that plan check will complete by the end of September and work should begin next week. Special attention is being paid to site coordination, fencing, and continued park safety during construction. All issues raised were thoroughly addressed and satisfied prior to execution of the agreement.

7. Civic Center Project Status

The Civic Center Project continues to move ahead. The Planning Department is managing the contract to perform the environmental assessment now underway. An RFQ is currently on the street. The CCAC is working on the RFP. The CCAC will help staff screen the responses to the RFQ to develop a short-list of interested architects.

8. Candidate Open House

Staff hosted the Candidate Open House on Monday, September 22. We walked through each department’s responsibilities and hosted a Q&A on any topic. Handouts were provided to the candidates (most of which the Council already has).

• 2014/2015 Budget • City Council Handbook • Resident Handbook • Law Enforcement Ethics • History of Law Enforcement • Community Services Reports (July and August) • Contractor Handouts

Attached are the History of Law Enforcement and Law Enforcement Ethics.

9. Solar Panel Installation Permits

Some of you may have received a notice from Complete Solar or viewed the article regarding their “solar ease index.” The index information is compiled by Complete Solar as a marketing tool; nevertheless it provides valuable information regarding the ease with which solar installations are permitted locally. The index ranks cities based on permit turnaround times and fees. All of the top ten cities (A ranking) return permits within a single day - over the counter. The other factor is fees. Fees in the top 10 (A ranking) ranged from $0 (Menlo Park) to $170

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(San Francisco).

Atherton received a C ranking. Our permit turnaround response was “10-days” as that is our maximum plan check turn-around time. Some are faster. None are slower. Our permit fee is $500 - the State maximum - regardless of the complexity of the review.

We will compile data on the San Mateo County jurisdictions and ask if there is any interest in changing our fee structure for this issue.

10. Fire Department Pancake Breakfast

The Fire Department’s 14th Annual Pancake Breakfast is Saturday, October 4. Shaping up to be a busy day….pancake breakfast, Player Capital Open House, barbecue at night at SHS...

11. Event Garden

Staff met with Denise Kupperman & Jeremy Isenberg (HPP Foundation) to discuss the plan of next steps for the Event Garden. We discussed the following sequence of events:

• Foundation to make a presentation to the Park and Recreation Committee, which should include a description of the project scope, plan and a recommended relocation site for the existing Rose Garden. The Foundation will make every effort to work with the Garden Guild to determine a recommended preferred site. • Following the P&R Meeting, the Foundation will present the proposed project to the Council for their approval. The presentation will include a draft agreement prepared by the Town, a description of the scope of the project, plan and preferred recommended re-location site for the Rose Garden. • After review/approval by the Council, construction documents will be prepared for the project. • Foundation will apply for a building permit after the project construction documents are completed.

Target dates:

• mid-October - draft agreement from the Town • November for P&R Presentation

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• November for Council Presentation • Construction documents by December/January • Building Permit Issuance in January • Project Start in February

Public works will be putting together an estimate of any additional maintenance costs for the completed project. The concept plan (digital) is attached as an FYI. The concrete area between the Pavilion and the project space may need to be renovated. I committed that the Town would do that work as it is outside the scope of the Project but would be needed to ensure conformity and eliminate tripping hazards.

12. Planning Commission Meeting

The Planning Commission met on September 24 at their regular meeting and took the following action(s):

• Approved a Special Structure Permit @ 2 Lupin Lane for a pool to be located 90 feet from the front property line. • Approved a Variance @ 395 Atherton Avenue to establish a 45 foot side, rear and front yard setback. • Approved a Conditional Use Permit for an addition to Stent Hall and continued a request for a Conditional Use Permit to allow an addition to the Creative Arts & Design Center to the next meeting (Menlo School)

The next regular meeting is October 22, 2014.

13. Arborist

I mentioned last week that we had received an email from a resident saying he was very interested in a Town-sponsored program whereby residents can pay a fee to get the Town Arborist to do a survey of the health of their private trees. He advised that both the resident and Town would benefit from the survey. He said he would gladly pay something like $500 for a quality report. While the idea is interesting I wanted to pass along a few thoughts related to the topic if/should the Council want to move in that direction:

• Competition. In general, it is usually not good public policy to use public resources to compete with the private sector. • General Public Good. While government does provide services to private residences they are most often related to general public education (fire prevention, crime prevention, planning and building process education, etc.) or related to a public benefit such as sewer lateral inspections upon sale of property, fire inspections for health and safety, etc. Government should not use public resources for purely private benefit even if someone pays for the service. For example, one could take the analogy further and suggest that the building official could provide in-home safety inspections (for a fee) or the finance department could provide a review of investments or accounting measures for a fee; or

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the police could provide private security forces - for a fee. • Conflict. If the Town provides a private arborist report using Town employees or contractors that report is a public document. Let’s say that report indicates that a particular tree (heritage or otherwise outside the building envelope) is in good condition. A year later, the private resident desires to take down the tree for a pool or some other improvement. They say, the tree is dead. We’ve had an arborist look at it. We say, not so fast, we have a public document that says it’s in good shape. Conflict. Who wins? Why is there even an argument? Do we want to be in that argument? Is it good public policy for us to be in that argument? • Injury or Harm. Worst Case. The Town arborist provides a private property owner with a property arborist report. All is well. Three days later, one of the trees cited as doing just fine, falls on the house or worse, falls and injures someone. The insurance investigation notes a failure at some location in the tree. Who gets sued? Who’s liable? Should we be in that position? Is it good public policy for us to be in that position?

I appreciate the resident’s suggestion and I appreciate the perspective that government has the resources, why not use them. However, the resources of government belong to all of the residents. In that way, it is often the case that in order to best represent and protect the interests of all of our residents, we cannot singularly represent the interests of any one of them. I cannot buy a government service for private use and government should not be competing with the private sector. Partnering with the private sector, yes - competing, no. Government should not be putting itself into a position of liability for the benefit of one property owner when that potential liability affects all of the remaining property owners. It’s ultimately a policy call and if the Council says Mr. City Manager make it happen (and it’s not illegal) we’ll go that route, but it has significant ramifications if it goes awry.

14. Update on Animal Services Negotiations

As the Council is aware, I sit on the negotiating team with the County of San Mateo in regard to the Animal Control and Licensing contract negotiations. We have concluded negotiations with Peninsula Humane Society (PHS) and the proposal is moving forward to the County Board of Supervisors. The contract is between PHS and the County. The cities and towns then contract with the County for services. The County allows representatives from the cities and towns to participate at the negotiation table. The current contract is a 3-year contract expiring in June 2014. The contract has a final year at $5.95m. The cost for services has been explored by numerous agencies in San Mateo County and all have concluded that we are receiving services at the lowest possible cost.

PHS and the County worked on two potential contract scenarios - a 3-year contract and a 5-year contract. The County is building a new facility and expects to complete it by 2017-2018. PHS and the County worked on cost models for a 3-year contract and a 5-year contract. The cost for the 5-year contract was considerably less than the 3-year. The County expressed a desire to have the vendor in the new building for a year in order to more accurately determine its operational costs should the County (and cities) decide to shop for a new vendor and/or form an independent JPA to provide our own services.

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In the end of the contract negotiations, we accepted a 5-year contract with additional services and performance measures and additional reporting requirements. The contract begins at a lower cost than the current contract term ends (including the additional cost of services) and has cost escalators built in over the 5-year term.

There will be talking points surrounding the final negotiations released in the coming month and there will likely be a presentation to C|CAG on the results. The results of the negotiation have not been publicly released yet; however, I will be happy to discuss them during our one-on-one meetings.

15. Refund for Animal Services – FY 2013-14

Each March the County estimates the billing for the fiscal year based on actual data from prior periods. After that review, the County will true-up based on unanticipated savings or additional revenue. In FY 2013-14, the following items allowed refund checks to be disbursed:

• Animal Licensing actual revenue was approximately $250,000 more than budgeted with the major expenditure, PetData, Inc., coming in $20,000 under budget. • Animal Control actual revenue was approximately $50,000 more than budgeted. • There was negotiated savings on the purchase price of new radio equipment saving another $20,000.

Overall, the amount of savings to be distributed amongst the member agencies was $363,585. Atherton received a refund check of $2,916. Our annual budget for services in FY 2013-14 was $42,680.

The County Board of Supervisors approved a Memorandum of Agreement to construct the new Animal Care Shelter and they anticipate the process to begin in late 2014 or early 2015. I volunteered to serve on the Animal Care Shelter Advisory Committee to work with the County at important junctures during the construction process to discuss the progress and concerns. PHS will be coming to the Town’s January City Council Meeting to talk about service delivery and mission.

16. PG&E’s Line 109 Project

Staff met with PG&E today to discuss the Line 109 Project. The following is an update on where staff/PG&E are with respect to the project (primarily in the Walsh Road/Valley Road area):

Staff issued the permit for the L-109 project in the Walsh/Valley Road area of Town about a month ago. PG&E is ramping up to begin the project in late October. The project in Atherton will involve the following:

• Community outreach • Preliminary work – tree trimming, utility location • Pipe installation– installation of a new 6” gas line from Walsh Road into Woodside.

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Community outreach – a community outreach meeting was noticed to the residents in the vicinity of the work location and the meeting took place last week in Menlo Park. A number of Atherton residents did attend the meeting. Issues such the nature of the work, traffic impacts, tree trimming, resident access to properties, garbage collection and noise were discussed during the meeting. Staff has requested that two more notifications take place prior to the start of work:

• A letter to be sent out via the Walsh Road homeowners group (Town to assist) to ALL residents of the Walsh Road community describing the project, its impacts and numbers to call with any concerns or other questions. • A letter to all of the residents in the immediate vicinity (upper Walsh/Valley Road) describing impacts affecting individual property owners including disturbance to Town Right of Way in front of their properties. Residents with impacts from tree trimming to removal/replacement of landscaping will receive individualized visits from PG&E/Town staff if required to discuss their needs and concerns.

Preliminary work – the first work to be performed is tree trimming to assure tree canopy is not acutely affected by the construction machines. Town staff has met with PG&E and a list of all trimming needs have been developed. Two trees requested for removal by PG&E are being reconsidered pending small altercations to the work plan suggested by staff. Once the tree trimming is performed, utility location will begin. As of 9/19/14, the date for the trimming will begin no sooner than 9/30/2014 with utility location (potholing) to follow.

Pipe installation – new pipeline trenching to begin end of October to early November. A two foot wide trench 6’ deep will be required from Walsh Road to the L at Valley Road (where Atherton turns into Woodside).

This project is expected to take about seven (7) weeks, from trenching to pipe testing to street repairs. Once the project is completed and the other work on the reroute is completed in Woodside/Menlo Park (already underway), the infamous 24” L-109 (San Bruno pipeline) will be de-energized through Atherton, removing this very old and very large gas transmission pipeline from the Town.

17. Table-Top Emergency Preparedness Training

Staff met at 8 am on Thursday (9/18) morning to “activate” our EOC. Each of the five sections in the EOC was activated and responded to a hypothetical incident occurring in Atherton. The exercise focused on response to a freight train derailment with ethylene oxide in one of the cars. Ethylene Oxide is a chemical that is transported via freight through Town on occasion. Staff discussed the operation start to finish from immediate incident response (fire, law, EMS, etc.) to evacuation, hazmat response, clean-up, NTSB investigation, NIC (terrorist threat possibility), shelter setup, recovery, and demobilization.

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At right is a photo from our very inadequate EOC. As you look at the photo note the tables have phones on them, binders, etc. Outside the door is all of our supplies - on the patio because there is insufficient room in the EOC to set them up. Our setup allows only minimal staff to be in the room and in the event of an actual emergency the initial activity would be chaotic and noisy.

Bottom line - in the new facility, we need more space, more room to have reports in and out from Operations in the field (fire, law, EMS, public works), space for other agencies in the room (hazmat, county, OES, etc.) and more.

I know I’m preaching to the choir here as you all understand the importance, but sometimes a picture is worth a thousand words.

18. Middlefield/Glenwood Intersection – Traffic Counts

We have had a request for consideration of a crosswalk at Middlefield and Glenwood. In order to gather data to consider this request staff will be obtaining some traffic counts (pedestrian and vehicular).

19. Glenwood Speed Signs

We have had a request for additional speed limit signage on Glenwood Avenue. Staff will inspect the street and determine whether additional signage is appropriate and in what variety - i.e. regulatory signs, warning signs, or pavement markings.

20. Funding Allocation for Measure M

C|CAG has advised that funding under the Measure M ($10 Vehicle Registration Fee) for FY 2013/14 is now available. Atherton is eligible (and we budget for) Measure M funds. The funds are disbursed on a reimbursement basis. Presently, we can now request funds for the period of July 1, 2013 through June 30, 2014 (i.e. last year). Under Measure M, C|CAG collects $10 per vehicle registered in the County, for a period of 25 years, beginning in May 2011. Fifty percent (50%) of the net revenue is allocated to the local jurisdictions for local street and road projects. These projects fall within two distinct categories - Traffic Congestion Management and Stormwater Pollution Prevention. Projects such as local shuttles, road resurfacing, restriping, signals, and signage fall under Traffic Congestion Management. Projects such as street

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sweeping, storm inlet cleaning, auto repair shop inspections, managing runoff, used oil drop off locations, etc. fall within the Stormwater Pollution Prevention arena.

Funds are allocated twice a year, once for the 1st half of the fiscal year (July through December) and once for the 2nd half of the year (January through June). Jurisdictions are required to submit a reimbursement requests. The Town receives approximately $78,000 in Measure M funds.

21. Planning Commission Meeting

The Planning Commission, at a Special Meeting on September 16, 2014 reviewed the Draft Housing Element and voted to adopt the Initial Study and Draft Negative Declaration and recommended that the City Council approve the draft Housing Element for transmittal to the California Department of Housing and Community Development for review and comment.

22. 80% Pension Funding Myth

In the last Friday email I included some information regarding the Town’s unfunded pension and OPEB obligations. In follow-up conversations with Council Members I provided the attached Issue Brief from the American Academy of Actuaries as informational. It is included here for all as an attachment.

23. Pension Blog – Contractor versus Employee

As the Council is aware, the Town is presently in the midst of a routine audit by CalPERS regarding our contract employees. Attached is a Law and Employment Blog article that pretty succinctly sums up the issues from CalPERS’ perspective. The list of questions on the blog are much in line with what CalPERS asked during the audit.

CalPERS auditors were reviewing Town contracts with the City Attorney, Police Chief (prior to his appointment as Police Chief), Account Clerk (when working through temp agency), Interwest (Engineer/PW Director), CSG (code enforcement) and MCE (public works services). In their review they asked the following similar questions (the bolded comments are mine)

• Is the individual or the employer supplying the tools, instrumentalities, and workspace? If yes….they may be employees • Is the skill required in the occupation the type normally performed under the supervision of the employer or by a specialist without supervision? If yes….they may be employees • Is the individual involved in a distinct occupation or business? hmmmm • What level of skill is required in the occupation? Are they engineers? lawyers? specialists? If so….contractors… • Is the relationship between the employer and the individual finite or ongoing? Is there a contract with an end point at which time we end it??? Not good for long-term relationship building. • Is the individual paid by the time or by the job? Most are paid flat, but Arborist is by time…MCE is by time and task… • Is the work performed part of the employer’s regular business? Well, we’re local

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government…pretty much everything could be termed our “regular business”…seems like a CalPERS catchall… • How do the parties view their relationship? Contract.

We expect to hear back on our Audit by the end of the year. Meanwhile, it is likely that this issue will get some press attention, as we are very transparent about it. The audit may add question to our ability to contract for regular service work (public works employees, public works director, etc.). I think we are pretty safe with contract services for speciality work: engineers, lawyers, building inspectors, and planning staff - we’ll see. CalPERS could require the Town to “go back” and pay pension on the costs or it could adopt a prospective application. Still unknown. If it’s prospective, great - we will figure out some next steps for the affected contracts. If it’s retroactive - there could be some costs involved.

As mentioned, special service contracts are likely fine. It’s the regular work and singular service contracts that will likely be called into question. These could arguably be limited to MCE, which consist of 4-5 staff, CSG with 1 staff member, and the Arborist with 1 staff member. As the issue evolves we will keep you in the loop.

24. Emergency Services Agreement

The Emergency Services JPA is being revised (again) as there were issues left out of the original revisions adopted back in January. The revised JPA will be presented to the Emergency Services Council on September 18th for review. The original 1993 Joint Powers Agreement for the Emergency Services Council (ESC) has been completely rewritten. The revised JPA went through all city attorneys, police/fire chiefs, the Emergency Managers Association and County Counsel. In January of this year, all cities formally adopted the new ESC JPA however there were continued concerns expressed by County Counsel when the JPA went to the Board of Supervisors. County Counsel was not satisfied with the final product and asked that the review and approval process be redone. OES went through the document again and made the requested revisions specific to legal language, some recommended California State Code additions, clarification of terminology and general clean up.

The Document, in its 4th revision went before the Emergency Managers JPA revision committee in early September. County Counsel David Silberman was present during the meeting where they made some minor changes to the document. The JPA, now in its 5th revision, is once again ready for approval. The ESC Administrative Committee will review the document on September 11th, followed by the Emergency Services Council on September 18th.

There is a seven-step approach moving forward.

• Review by HSD/OES staff that will color code all changes, recommendations and suggestions. A legend will be provided to the reviewers to know where and who made the recommendations or changes in the agreement. • Staff will meet with the JPA sub-committee of the San Mateo County Emergency Managers Association to review the proposed changes. They will review and make any appropriate recommendations to the agreement. Any edits by this group will also be color

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coded. • The Agreement will be presented to County Counsel to assure correct language and changes meet the necessary legal requirements. • The HSD/OES Captain or Director will present the revised JPA agreement to this body at the September 18th meeting. • The JPA agreement will be sent out to the cities within five days of the September meeting. The cities should have the agreement reviewed by the City Manager, Police/Fire Chiefs, and City Council and returned to the Office of Emergency Services by December 3, 2014. It will be on our upcoming Agenda. • The JPA agreement will be presented to the Emergency Services Council for a final review at the January 2015 meeting. A recommendation for approval will be sought. • HSD/OES staff will prepare a memo and resolution to the San Mateo County Board of Supervisors requesting formal adoption of the revised Emergency Services Council's Joint Powers Agreement.

25. El Camino Real Visibility Improvements

Mike, Steve, Joe and the Chief are going out to ECR next week to identify some center divider areas near cross walks where bushes, shrubbery and or other vegetation may be obstructing the view of pedestrian traffic and put together a proposal to have it removed. It is unlikely that Caltrans will have any concerns with any of the work and it will be completed by Public Works at minimal cost.

History of Law Enforcement An Eye for an Eye…

• …and a tooth for a tooth • The Code of Hammurabi, first ruler of the Babylonian Empire • “If a son strikes his father, they shall cut off his forehand.” “If any one steals the minor son of another, he shall be put to death.” Why Policing Exists

• Since the conception of society, law enforcement bodies have existed to protect citizens from criminals or to maintain the status quo and keep leaders in power. • Dating back to Biblical times, there were military personnel tasked to maintain peace and order. In Egypt, for example, a pharaoh ruled the land and soldiers chased the Israelites across the Red Sea. There were other societies with military hierarchies as well, like the Babylonian, the Syrian, and the Palestinian societies, among others. Roman Empire

• The most prominent of all military organizations was that of the Roman Empire. They had a very effective and brutal form of law enforcement that they utilized to maintain peace and order. • It was the Romans who introduced the infamous symbol of the crucifix. The Romans never really had an actual police organization. It was only in the fifth century that clan chiefs and heads of state were tasked to police the people under their care. London

• London was the first to hire paid enforcers back in 1663. Afterwards, the trend spread across the United Kingdom. It was only in June of 1800, that the authorities of Glasgow, Scotland were able to establish the City of Glasgow Police. • They were the first professional police enforcers that practiced preventive policing. In 1829, the Metropolitan Police Act was passed by Parliament. This established the first civil police force and the model used by many countries today, including the United States. What the word “Police” means

• The word “Police” is French, derived from Greek and Roman words for members of government;

• In Western culture, the contemporary concept of a police paid by the government was developed by French legal scholars and practitioners in the 17th and early 18th centuries. Historical Background

• London was the first to hire paid enforcers back in 1663;

• In 1834, the Toronto Police was founded in Canada. It was one of the first police departments in North America. The first full-time police force in the U.S. was the Boston Police Department in 1839. First Boston Police Officers Significant Dates

• 1631 – The first night watch is established in Boston; • 1737 – Benjamin Franklin proposes establishing a paid watch in Philadelphia; • 1845 – America’s first unified, prevention oriented police force is established in New York City; • 1853 – N.Y. City police become the first officers to wear uniform. New York City Memorabilia What “COP” Means

• Origin: 1695–1705; cf. cap (obs.) to arrest, Scots cap to seize ≪ dial. OF caper to take, ult. < L capere.

• Cop can refer to the copper buttons or badges on the old uniforms, for the initials “Chief of Police” or “Constable on Patrol”.

History From Long Ago…

• Law enforcement can be traced back thousands of years. A stone tablet from 2000 BC depicted a report from a Babylonian officer detailing the arrest, fingerprinting, and seizure of property from a citizen; • The Old and New Testaments refer to watchmen who protected the cities and made arrests; • Egyptian hieroglyphics depict police officers who protected tombs and treasures, using the first K-9’s, and the first locks. Ancient Hieroglyphics “The Charleys”

• In the 1600’s, “the Charleys,” were 1000 watchmen hired by King Charles in Great Britain, were an unsuccessful effort to provide protection. • They were mostly old men who would run off when trouble started, were corrupt, and often acted as lookouts for criminals. Merchants were forced to hire their own force to protect them. Watchman, or Charley

King Charles and the Watchmen

The Watchmen

King Charles Bow Street Runners

• 1748-1829 • Established by Henry Fielding, Magistrate of the Bow Street Court • Worked from Fielding’s home on Bow Street • First “Detectives” • Responded to homes and businesses and investigated crimes, wrote reports Sir Robert Peel

SIR ROBERT PEEL The Peelers, were the Metropolitan (1788 - 1850) Police Force. Sir Robert Peel

• Robert Peel conceived the notion of a police force in London which began patrolling the streets on September 29, 1829. These Victorian policemen or Peelers, as they were more commonly known, worked seven days a week and were expected to wear their police uniform whether on duty or not. • This was accepted as being part of a Peelers strictly controlled lifestyle and was designed to reduce public suspicion that they were being spied upon. From Peeler to Bobby

The Peelers - The Bobby – Scotland Yard The Bobby

• The “Bobby” got their name from Sir Robert (Bobby) Peel. • Throughout the history of the police force in the UK, the Bobby has dressed in a style that conveyed a certain image to both the members of the public and villains alike. • The earliest policemen were dressed in a manner so as to avoid them being confused with the military. They dressed in blue tail-coats and top hats, uncommon today, but almost the norm in Victorian London. The Uniform

• The blue of these early costumes was lighter than that we see a policeman wearing today and the high collared tail-coat was worn over a leather stock around the neck - as worn by the military rank and file, to protect against strangulation. • The Peelers top hat, also known as a “stovepipe” or “chimney pot” hat was in fact especially hardened so as to offer the wearer both protection from being hit in the head and to have provided the officer with a portable step-up whenever required. First Police Uniforms

First Police Button Uniforms and Accessories

First Uniform - Texas

British Police Helmet Early 1900 Uniforms

1914 – Women’s Patrols New York City Police Officer All Equipped

• Today we expect a policeman to be equipped with all manner of electronic communications devices but originally rather than a whistle, which wasn't introduced until the 1880s; a Peeler was issued with a rattle in order to summon assistance. • Truncheons (baton) and a pair of handcuffs have been part of the bobby's standard issue from the start. American Force

• The first modern American force was established in New York in 1845, based on the British Metropolitan system. San Francisco, Chicago, Boston and other large cities soon followed suit. • Police work was still not popular and jobs were attained based on the political “spoils system.” Modern Police Force Combines Modern Equipment

The modern police force with the first lie detector test War Gave Experience

• During World War I, job quality suffered when younger, able-bodied men left to fight the war; • Many candidates returned from the war with experience as military police officers; • Many took advantage of the GI Bill, which resulted in more college educated police officers. Military Police “Professional Model”

• It was during this time that policing adopted the “Professional Model,” which emphasized rapid response to incidents, and embraced new societal values that placed more responsibility for the causes of crime on society than on the individual; • Officers went from walking beats where they knew people and began driving in cars to get from one incident to another. “Walking the Beat” Law Enforcement Today

• Community policing is a philosophy that promotes organizational strategies, which support the systematic use of partnerships and problem-solving techniques, to proactively address the immediate conditions that give rise to public safety issues such as crime, social disorder, and fear of crime. Community Policing

Community Policing – working with kids – fostering a positive relationship. California

• California is the 7th largest economy in the world and more than 34 million people live in this state; • In California – one violent crime occurs every 3 minutes and one property crime each minute. • 1980 marked the highest level of reported crime in California history; since then rates have decreased. Father of Police Professionalism

• August Vollmer – who began his law enforcement career in 1905 as the elected Town Marshal in Berkeley, CA. He was then appointed Chief of Police in 1909 and retired in 1932. • His efforts included a professional model of policing where those standards are still used today. Chief August Vollmer - 1925 Vollmer’s Accomplishments

• Vollmer is often referred to as the “father of police professionalism” – due to his commitment to improve American policing through education. UC Berkeley formed a law enforcement training program; • 1918, UCLA had created a criminology program for women; • Vollmer also introduced the first automobile patrol service in American policing. • In 1916, he created the first scientific crime lab in the country. Commission on Peace Officer Standards and Training

In 1959, California pioneered statewide legislation that established minimum standards for police training and created the Commission on P.O.S.T. Largest Number of Full-Time Officers • California has the largest number of full- time law enforcement officers in the U.S. • The top five agencies are: • Los Angeles Police – 9,573 Officers • Los Angeles Sheriff – 8,107 Deputies • San Francisco Police – 2,186 Officers • San Diego Police – 2,028 Officers • San Jose Police – 1000 Officers California Highway Patrol

The CHP is the largest of all state law enforcement agencies, with 6,597 sworn employees. California’s Innovative Spirit

• Known for its cutting edge advances in law enforcement procedures, agencies have included programs such as:

• Neighborhood Watch; • Mothers Against Drunk Driving (MADD); • Drug Abuse Resistance Education (DARE)

Conclusion

• Along with external defense, the maintenance of internal order is one of the defining functions of government. The United States, like countries everywhere, has created a particular governmental institution for doing so, namely, the police.

American Academy of Actuaries

MARCH 2009 JULY 2012 The 80% Pension Funding Key Points Standard Myth n Frequent unchallenged references to 80% funding as a healthy n 80% funded ratio1 often has been cited in recent years as a level threaten to create a mythic Abasis for whether a pension plan is financially or “actuarially” standard. sound. Left unchallenged, this misinformation can gain undue credibility with the observer, who may accept and in turn rely on it n No single level of funding should be identified as a defining line as fact, thereby establishing a mythic standard. This issue brief de- between a “healthy” and an bunks that myth and clarifies how actuaries view funding levels for “unhealthy” pension plan. pension plans and how the funded ratio relates to the general idea of “soundness” or the “health” of a pension plan or system. The n Funded ratios are a point-in-time Pension Practice Council of the American Academy of Actuaries measurement. The movement or trend of the funded ratio is as finds that while the funded ratio may be a useful measure, under- important as the absolute level. standing a pension plan’s funding progress should not be reduced to a single measure or benchmark at a single point in time. Pension n Most plans should have the plans should have a strategy in place to attain or maintain a funded objective of accumulating assets status of 100% or greater over a reasonable period of time2. equal to 100% of a relevant pension obligation. What a Funded Ratio Is and Is Not n The financial health of a pension The funded ratio of a pension plan equals a value of assets in the plan plan depends on many factors in divided by a measure of the pension obligation. Confusion sometimes addition to funded status—par- can result when the term “funded ratio” is used without a clear under- ticularly the size of any shortfall standing of how the pension obligation is measured or whether some compared with the resources of the plan sponsor. 1Please see Appendix: Development and Sample Usage of the “80% Standard.” 2Only in unusual situations would a goal other than a 100% funded ratio be targeted. These might include nonqualified pension plans, legislated funding targets or special concerns that a plan sponsor has with setting aside assets equal to the full value of the pension obligation. Social insurance programs, particularly pay-as-you-go programs like Social Security, also do not have a goal of 100% advance funding.

The American Academy of Actuaries is a 17,000-member professional association whose mission is to serve the public and the U.S. actuarial profession. The Academy assists public policymakers on all levels by providing leadership, objective 1850 M Street NW, Suite 300, Washington, DC 20036 expertise, and actuarial advice on risk and financial security Tel 202 223 8196, Fax 202 872 1948 issues. The Academy also sets qualification, practice, and pro- www.actuary.org Mary Downs, Executive Director fessionalism standards for actuaries in the United States. Mark Cohen, Director of Communications Craig Hanna, Director of Public Policy ©2012 The American Academy of Actuaries. Don Fuerst, Senior Pension Fellow All Rights Reserved. David Goldfarb, Pension Policy Analyst form of asset smoothing is being used. Actuar- sponsor, if the plan investments involve excessive ies use different methods to measure a pension risk, or if the sponsor fails to make the planned obligation for different purposes. For example, contributions. the measurement of the obligation used to de- Just as being more than 80% funded does not termine a contribution strategy is often different assure a plan is adequately funded, a plan with from the measurement used for financial report- a funded ratio below 80% should not necessar- ing or estimating settlement costs. The context ily be characterized as unhealthy without further for a funded ratio is important; but a detailed examination. A plan’s actuarial funding method discussion of the various reasons for or methods should have a built-in mechanism for moving used to measure different types of pension obli- the plan to the target of 100% funding. Provided gations is outside the scope of this brief. the plan sponsor has the financial means and the Actuarial funding methods generally are de- commitment to make the necessary contribu- signed with a target of 100% funding—not 80%. tions, a particular funded ratio does not neces- If the funded ratio is less than 100%, contribu- sarily represent a significant problem. tion patterns are structured with the objective of In addition, the funded ratio is a measure of a attaining a funded ratio of 100% over a reason- plan’s status at one time. A plan that is responsi- able period of time. bly funded easily can have its funded status vary While it is unclear when widespread use significantly from one year to the next solely be- began, an 80% benchmark has appeared in re- cause of external events. Funded ratios should be search reports, legislative initiatives, and in the looked at over several years to determine trends media as a dividing line between healthy and un- and should be viewed in light of the economic healthy plans. A 2007 Government Accountabil- situation at each time. Higher funded ratios are ity Office (GAO) report on government pension to be expected following periods of strong eco- plans identified 80% as a de facto standard, cit- nomic growth and investment returns such as ing experts without attribution. Subsequent uses at the end of the 1990s. Lower funded ratios are of the 80% level often cite the 2007 GAO report. to be expected after recessions or years of poor The Pension Protection Act of 2006 (PPA) investment returns such as the economic down- limits benefit improvements, lump sum pay- turn that began in 2008. Whether a particular ments, and use of the funding balances based shortfall affects the financial health of the plan on an 80% ratio of assets to the PPA funding depends on many other factors—particularly target. Also under PPA, multiemployer plans the size of the shortfall compared to the resourc- use 80% as a level below which stricter funding es of the plan sponsor. rules become effective. As a final note, credit rat- The funded ratio is most meaningful when ing agencies use various funded ratios, including viewed together with other relevant informa- 80%, as a general indicator of a public pension tion. Other factors that might be considered in plan’s financial health. assessing the fiscal soundness of a pension plan Identifying specific levels of funding as “too include: low” as PPA does is useful for some purposes n Size of the pension obligation relative to (e.g., implementing benefit restrictions); but it the financial size (as measured by revenue, does not follow that achieving or maintaining a assets, or payroll) of the plan sponsor. funded ratio at some particular level should be n considered healthy or adequate. A plan with a Financial health (as measured by level of funded ratio above 80% (or any specific level) debt, cash flow, profit or budget surplus) might not be sustainable if the obligation is ex- of the plan sponsor. cessive relative to the financial resources of the n Funding or contribution policy and

Members of the Pension Practice Council include: Noel Abkemeier, MAAA, FSA; Stephen Alpert, MAAA, FSA, FCA, MSPA, EA; Michael Bain, MAAA, ASA, EA; Janet Barr, MAAA, ASA, EA; Eli Greenblum, MAAA, FSA, EA – vice chairperson; William Hallmark, MAAA, ASA, EA; Kenneth Hohman, MAAA, FSA, FCA, EA; Evan Inglis, MAAA, FSA, EA; Ellen Kleinstuber, MAAA, FSA, EA; Eric Klieber, MAAA, FSA, EA; John Moore, MAAA, FSA, FCA, EA – chairperson; Nadine Orloff, MAAA, FSA, FCA, EA; Andrew Peterson, MAAA, FSA, EA; Jeffrey Petertil, MAAA, ASA, FCA; Michael Pollack, MAAA, FSA, EA; David Sandberg, MAAA, FSA, CERA; Tamara Shelton, MAAA, FSA, EA; John Steele, MAAA, FSA, EA; Thomas Terry, MAAA, FSA, EA; James Verlautz, MAAA, FSA, EA

2 ISSUE BRIEF JULY 2012 whether contributions actually are made and the potential that the current cost of pension according to the plan’s policy. benefits may need to be paid by future stake- holders (e.g., shareholders or taxpayers). All of n Investment strategy, including the level of these risks can be managed through appropriate investment volatility risk and the possible benefit, funding, and investment policies. effect on contribution levels. Each of these factors should be examined Summary over several years and in light of the economic A funded ratio of 80% should not be used as a environment. criterion for identifying a plan as being either in Plan sponsors experience a variety of circum- good financial health or poor financial health. stances that could lead to funded levels that are No single level of funding should be identified as less than 100% at any point. Volatile investment a defining line between a “healthy” and an “un- returns and interest rates, tight budgets, and healthy” pension plan. All plans should have the benefit increases are some of the most important objective of accumulating assets equal to 100% reasons why pension plans may be underfunded. of a relevant pension obligation, unless reasons The consequences of becoming underfunded in- for a different target have been clearly identified clude larger future contribution requirements, and the consequences of that target are well unless security for participant/member benefits, derstood.

APPENDIX: DEVELOPMENT AND SAMPLE USAGE OF THE “80% STANDARD” This appendix provides an overview of where Spending Trends for California’s Largest Indepen- use of the 80% funded “standard” has been ob- dent Public Employee Pension Systems, Feb. 21, served, from academic to general media reports. 2012, http://www.cacs.org/images/dynamic/articleAt- Note that this is a small sample and by no means tachments/7.pdf an exhaustive list and is provided for illustrative n “None of the systems is at or above 80% purposes only. funded, which is the conventional mini- References in academic and other mum funded ratio.” research-based reports n “A plan is typically considered well-funded U.S. Government Accountability Office, State if its funded ratio is greater than 80%…” and Local Government Retiree Benefits— Current Legislative references Status of Benefit Structures, Protections, and Fis- Description of New Jersey pension legislation cal Outlook for Funding Future Costs, September passed in 2011, http://blogs.app.com/capitolquickies/ 2007, http://www.gao.gov/assets/270/267150.pdf files/2011/06/S-2937-Summary-revised.pdf n “A funded ratio of 80% or more is within n “In addition, these changes allow all pen- the range that many public sector experts, sion systems to reach an 80% funding union officials, and advocates view as a ratio, which is the ERISA and Govern- healthy pension system.” ment Accountability Office standard for a Pew Research Report, The Trillion Dollar Gap— healthy pension system.” Underfunded state retirement systems and the roads to reform, February 2010, http://www.pew- General media references states.org/uploadedFiles/PCS_Assets/2010/Trillion_Dol- Connecticut Gov. Dan Malloy quoted in January lar_Gap_Underfunded_State_Retirement_Systems_ 2012 online report, http://connecticut.onpolitix.com/ and_the_Roads_to_Reform.pdf news/97016/gov.-talks-about-employee-pension-fund n “Many experts in the field, including the n “We need to be fiscally strong, we need to U.S. Government Accountability Office, repair the damage that has been done by suggest that a healthy system is one that is successive administrations in this state,” at least 80% funded.” [Connecticut Governor] Malloy said. “It Stanford Institute for Economic Policy Research, is no honor to have the worst funded pen- More Pension Math: Funded Status, Benefits, and sion program in the country.”

ISSUE JULY MAY 2012 3 Malloy continued on to say, “What I actu- Online commentary on “80% Standard” ally aspire to is getting to an 80% funding Girard Miller, “Pension Puffery—Here are 12 as rapidly as we can and the fact that we half-truths that deserve to be debunked in 2012,” can do that and save the taxpayers $6 bil- Jan. 5, 2012, http://www.governing.com/columns/pub- lion is pretty important.” lic-money/col-Pension-Puffery.html Bloomberg, “Texas Teacher Pension Needs 21% n “Half-truth #4: “Experts consider 80% to Return to Keep 80% Funded Ratio,” April 19, be a healthy funding level for a public 2011, http://www.bloomberg.com/news/2011-04-19/ pension fund.” This urban legend has now texas-teacher-pension-needs-21-return-to-keep-80-fund- invaded the popular press, so it’s about ed-ratio.html time somebody set the record straight. No n “The Teacher Retirement System of Texas panel of experts ever made such a pro- needs an annual return of 21% in the nouncement. No reputable and objective year ending Aug. 31 to maintain an 80% expert that I can find has ever been quot- funded ratio, the level actuaries con- ed as saying this. What we have here is a sider adequate to cover liabilities, said its classic myth. People refer to one report or deputy director.” another to substantiate their claim that Gerri Willis, “Pension Bust,” Fox Business, some presumed experts actually made this March 16, 2012, http://www.foxbusiness.com/on-air/ assertion (including a GAO report and a willis-report/blog/2012/03/16/pension-bust Pew Center report that both cite unidenti- n Typically a pension plan is considered fied experts), but nobody actually names healthy if it meets an 80% funded bench- these alleged “sources.” Like UFOs, these mark. “experts” are always unidentified. That’s because they don’t actually exist. They Credit rating agencies can’t exist, because the pension math and Standard & Poor’s, “U.S. State Ratings Method- 80 years of data from capital markets his- ology,” Global Credit Portal, Jan. 3, 2011, http:// tory just don’t support these unsubstanti- www.standardandpoors.com/prot/ratings/articles/en/us/ ated claims.” ?articleType=HTML&assetID=1245320477069 Keith Brainard and Paul Zorn, “What is the Pension Funded Ratio source of the 80-percent threshold as a healthy or minimum funding level for public pension Strong 90% or above plans?” January 2012, http://www.wikipension.com/ Above Average 80% to 90% images/0/0a/80_percent_funding_threshold.pdf Below Average 60% to 80% n “Recently, some have challenged the idea Weak 60% or below that an 80% funding level is a healthy level for public pension plans and have asked Fitch Ratings, “Enhancing the Analysis of U.S. about the origins of such statements. State and Local Government Pension Obliga- Based on our research, the use of 80% as tions,” Feb.17, 2011, http://www.ncpers.org/ a healthy or minimum public pension Files/2011_enhancing_the_analysis_of_state_ funding level seems to have its genesis in local_government_pension_obligations.pdf corporate plans, for which it was a statu- n “Fitch generally considers a funded ratio tory threshold. This standard was also of 70% or above to be adequate and less applied to private sector multiemployer than 60% to be weak, while noting that plans.” the funded ratio is one of many factors considered in Fitch’s analysis of pension obligations.”

4 ISSUE BRIEF JULY 2012 "But Our Agreement Says They Are An Independent Contractor!" - Navigating "Employee" and "Independent Contractor" Determinations Under the Public Employees' Retirement Law | California Public Agency Labor & Employment Blog

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About this blog Home > Retirement > “But Our Agreement Says They Are An Independent Contractor!” – Navigating “Employee” and “Independent Contractor” Determinations Under the Public Employees’ Retirement Law Liebert Cassidy Whitmore is a full service employment and labor relations law ﬁrm providing expert consultation, representation, litigation, negotiation and “But Our Agreement Says They Are An Independent investigation services to public agency management... More Contractor!” – Navigating “Employee” and “Independent Contractor” Determinations Under the Stay Connected Public Employees’ Retirement Law Subscribe to this blog via RSS

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If your agency is a contracting agency with the California Public Employees’ Retirement System (CalPERS), chances are you have heard about the important Topics distinctions between an “employee” and an “independent Appeals contractor” under the Public Employees’ Retirement Law (PERL). Whether an individual is an “employee” or an Bankruptcy “independent contractor” determines whether the individual must be enrolled in CalPERS under certain Brown Act

circumstances and whether a CalPERS retiree can return CFRA to work with a CalPERS agency without being subject to post-retirement work restrictions. Class/Collective Action

The difficulty for CalPERS employers is that there is no single, absolute factor that distinguishes an Conferences “employee” from an “independent contractor.” Rather, a myriad of factors are considered. Accordingly, employers often find it difficult to ensure that the person they are contracting with is in fact a true Constitutional Rights independent contractor, rather than a common law employee. Disability

Many employers have agreements with individuals that clearly state that the individual is an Discrimination independent contractor and that no employer-employee relationship exists. However, the label actually E-Discovery matters very little when it comes to determining whether an individual is an “employee” or an “independent contractor.” Rather, the actual relationship between the parties is paramount and the Education label may be one of the least important factors in such a determination. Similarly, just because an employer issues an individual a Form 1099 instead of a W-2 does not guarantee that the individual will Employment

be deemed to be an “independent contractor.” Ethics

Instead, when it comes to CalPERS, the “common law test” is used to determine whether an individual First Amendment is an “employee” or an “independent contractor.” The critical factor is whether the employer retains the FLSA right to control the manner and means of accomplishing the work to be performed. As CalPERS puts it, “[a]n independent contractor is someone who contracts to provide a service or complete a task FMLA according to his or her own methods, and is not subject to contracting entity’s control as to the end Harassment product, ﬁnal result of work, or manner and means by which the work is performed.” Healthcare Other factors that CalPERS and courts will use to determine whether an individual is an “employee” or Hiring an “independent contractor” include: Labor Relations 1. Is the individual or the employer supplying the tools, instrumentalities, and workspace? Layoffs 2. Is the skill required in the occupation the type normally performed under the supervision of the employer or by a specialist without supervision? LCW Seminars

3. Is the individual involved in a distinct occupation or business? Legislation

4. What level of skill is required in the occupation? Lessons Learned

5. Is the relationship between the employer and the individual ﬁnite or ongoing? Liebert Cassidy Whitmore

6. Is the employee paid by the time or by the job? Litigation

7. Is the work performed part of the employer’s regular business? Military Discrimination

8. How do the parties view their relationship? Military Leave

As noted above, no single factor is controlling. CalPERS or a court will look at the individual’s Negotiations relationship with the agency in light of the above factors and balance them to see if the relationship Pension weighs in favor of an employer-employee relationship or principal-independent contractor relationship. Understandably, the ﬂuidity of the test frustrates employers who must try to determine at the outset how Personnel Issues CalPERS or a court will weigh the factors in the future. This task is all the more daunting when the Privacy employer has not had signiﬁcant experience in analyzing the factors. Therefore, contracting agencies should contact legal counsel or develop procedures for analyzing whether an individual is an Public Safety Issues “employee” or an “independent contractor” in individual circumstances. Public Sector

There are several mechanisms for CalPERS to be alerted to an individual’s misclassification as an Retaliation independent contractor instead of an employee. CalPERS periodically audits contracting agencies to determine, among other things, whether individuals have been improperly classified as “independent Retirement contractors” or “employees” for the purposes of the PERL. CalPERS also can be alerted to certain Safety employment arrangements by the media, taxpayer groups, and other employees. Social Media Even if an employee is properly classified as an independent contractor, there are additional nuances Travel Time that an employer must address. CalPERS has been inconsistent in its guidance and publications on how it treats independent contractors. As we reported, CalPERS indicated in one of its publications Uncategorized that even true independent contractors, those individuals who are independent contractors under the common law control test, are subject to the PERL’s post-retirement restrictions when working directly USERRA for a CalPERS employer. In Circular Letter No. 200-002-14, however, CalPERS backtracked from its Wage and Hour previous language and stated that true independent contractors were not subject to the PERL’s requirements on post-retirement work. As we discussed in our post on Circular Letter No 200-002-14, Workplace Policies CalPERS did not clarify whether a CalPERS retiree who is a true independent contractor must still have his or her hours reported in my|CalPERS. Employers must take care to remain well informed of additional CalPERS guidance and changing interpretations. Archives

It is important for CalPERS contracting entities to take careful stock of the individuals it treats as Jeffrey Freedman has forty independent contractors and conduct an analysis of whether they are true independent contractors. years of experience representing public agencies, This analysis should be conducted as soon as possible in order for the agency to avoid unwanted as well as private companies in all areas consequences for the agency, as well as employees and retirees performing services for the agency. of labor and employment relations law. More...

Pilar Morin is experienced in all phases of trial practice, Print including litigation before state and federal courts, administrative TAGS: "Independent Contractor", CalPERS, Contractor, Independent, PERL, Retirement bodies, and alternative dispute resolution procedures such as mediation and arbitration. More...

Elizabeth Arce is an experienced federal and state court litigator. She also provides advice and counseling to clients on a wide array of labor and employment matters. More...