JPA Agreements and Bylaws

Transcription

1 JPA Agreements and Bylaws James Marta CPA, ARPM Robin Johnson, CPCU, ARM, Attorney Doug Alliston, Attorney JM Purpose Binds the members together in an agreement to jointly achieve the desired goals Creates a separate entity with its own governance dedicated to the administration of the agreement RJ 1

2 What Powers Do You Have? Government Code section 6500 Those common powers authorized by governing bodies of members (6502) Powers must be specified in the agreement (6508) Power subject to restrictions on the manner of exercising power of one of the contracting parties designated in the agreement (6509) DA RKJ1 Agreement between? Is it between the member and the JPA or Is it among the members Why is this important DA 2

3 Slide 4 RKJ1 May be a contract between the members. However, a member can sue the Authority for breach of contract Robin K. Johnson, 8/16/2014

4 What makes up the governing documents RKJ2 JPA agreement Bylaws Memorandum of coverage Other policies and procedures JM Considerations in drafting and reading the agreement How do you get to be a member (getting into the agreement) Who are you partnering with, who will you share with later What does the agreement govern Rights Responsibilities Disputes How do you share, how do you split things up. How do you change the agreement How do you get out of the agreement RJ 3

5 Slide 5 RKJ2 Changed from "the agreement" because in other places "agreement is used with a meaning that does not includ the Bylaws, etc. Robin K. Johnson, 8/16/2014

6 Problems found in JPA agreements Vague, lack of clear definitions, conflicting provisions, failure to address how issues would be resolved. Lack of enforcement provisions Insufficient delegation of authority Termination clause that says: the effect of the member terminating is to remove them as a signatory to the agreement. I see attorneys in your future DA Problems (continued) Lack of a process for terminating a member Who do you want to decide disputes? Members or governing body Court Arbitrator (one or several) Mediator (persuasive, not binding) RJ 4

7 Rights Member rights include the right to: Have claims incurred during the period of membership of the selfinsurance program administered and paid RKJ8 Participate in the self insured programs Participate in the loss control programs Appoint a representative and vote in accordance with the voting provisions of these bylaws Receive dividends How do these change if the member terminates? JM Responsibilities Member responsibilities include the obligation to: Pay contributions and assessments that are attributed to the Member Provide payroll, average daily attendance (ADA), property locations and values, and other necessary underwriting information in a timely manner Assist and participate in claims investigation and settlement process Participate in loss control and safety programs Provide a representative to attend and participate in board meetings To abide by decisions of the board Do these change if the member terminates? DA 5

8 Slide 9 RKJ8 Not necessarily all self-insured programs. Robin K. Johnson, 8/16/2014

9 Enforcement of the agreement Dispute resolution (agreement or coverage) Penalties Late fees Sublimits Termination Coverage Membership RJ Should the agreement be general or specific General + Allows the agreement to be more flexible and provide for board discretion May allow the board to change the original intent Specific + Provides consistency how matters will be conducted Would require changes in agreement to revise. DA 6

10 What should be in the JPA Agreement? Purpose Powers Term Board Membership (admission/withdrawal/termination) Bylaws Provision for amendment Termination of agreement Disposition of assets JM What should be in the Bylaws? Provides the details of carrying out the agreement Board, Committees, and Officers election process and terms Finance issues Procedures for withdrawal or termination Could refer to other policies Provision for amendment Effective date RJ 7

11 Definitions Helps clarify how the terms are used and what they mean for purposes of the agreement Unclear terms and definitions are often disputed DA Special issues Member and terminating member continuing responsibility for prior policy years Ongoing capitalization of the pool. Members come and go, should some base capital stay? Risk Capital Building and equipment JM 8

12 Overall recommendations Review and update your governing documents periodically. Ensure you have Clear definitions Clear rights and responsibilities Contemplate what could be disputed and consider clarifying language and examples It is cheaper for you to do this than to litigate the agreement RJ Questions? 9