Sunday, August 6, 2017
[Marin County] San Rafael sets legal defense in pension lawsuit
Blog note: this article references a 2015 grand jury report on pension formulas.
San Rafael City Attorney Robert Epstein will defend the city in a civil lawsuit filed by county resident David Brown over the city’s adoption of increased employee pension formulas in 2002-06.
At the same time, the city will retain an independent outside counsel to review any pleadings and arguments presented by the city, and to attend closed sessions and advise the City Council on an as-needed basis, said City Manager Jim Schutz in a prepared statement.
“Even though it is neither legally nor ethically required, the participation of independent counsel alongside the city attorney will ensure continued public transparency throughout the defense of the case,” Schutz said in a statement.
The decision to have Epstein defend the city while also hiring independent outside counsel to assist Epstein comes after Brown, in his lawsuit, asserted that no one in the city attorney’s office could participate in the case because they were part of the city pension system.
Both Epstein and Schutz said Brown’s contention is incorrect.
“The city charter provides that the city attorney has a duty to advise the city regarding ‘all legal matters pertaining to the city,’” Schutz said. “And to attend to ‘all suits and proceedings in which the city may be legally interested.’” Schutz added there is “no legal or ethical reason that prevents the city attorney from defending the city in the Brown lawsuit.”
The higher pension formulas were the topic of a Marin County Civil Grand Jury report in 2015, “Pension Enhancements: A Case of Government Code Violations and a Lack of Transparency.”
Brown’s lawsuit alleges that the so-called “pension enhancements” adopted in the early 2000s resulted in excessive extra cost to city taxpayers — and that taxpayers had no way to protest the decision because there was not adequate advance public notice.
Schutz said the decisions in question were “made more than 10 years ago” and that the city later adopted reduced pension formulas for employees hired after 2009.
“The Marin County Court recently rejected a similar lawsuit that Brown filed against the Southern Marin Fire District based on the statute of limitations,” Schutz said in the statement.
Epstein said he has confirmed the conclusion that he can defend the city in the case with an opinion obtained from an outside attorney who specializes in legal ethics.
“Although Mr. Brown contends that the city should hire independent outside counsel, his lawsuit is primarily devoted to his attacks on the opinions provided by independent outside counsel whom the city previously hired to assist in its response to a grand jury report on the same pension-related subjects,” Epstein said.
The outside counsel used by the city in its response to the grand jury report was attorney Michael Colantuono, of Colantuono, Highsmith and Whatley, PC, of Penn Valley.
August 2, 2017
Marin Independent Journal
By Keri Brenner