Blog note: this article references a 2015 Marin
County Grand Jury report.
A state appeals court has
rejected a Mill Valley public pension critic’s bid for judicial review of
pension payments, but left open the door for him to take his case to Marin
Superior Court.
David Brown, a member of
Citizens for Sustainable Pension Plans, filed a formal petition with the 1st
District Court of Appeal in San Francisco, after a civil grand jury finding
that Marin agencies repeatedly broke the law by approving benefits without
public notice.
Brown asked the court to
evaluate the situation in order to determine if the benefits were adopted
illegally.
But in a ruling Friday, the
court denied the petition “without prejudice to petitioner’s exhausting his
remedies in the Superior Court.”
“We will definitely refile
in Superior Court,” Brown said in an email Saturday. “I made a mistake and
filed the petition at too high a level in the judicial system. This
demonstrates the disadvantage at which ordinary citizens are forced to operate
when they take on legal professionals in an attempt to right the wrongs the
system has wrought.”
Last year’s grand jury found that county
supervisors as well as the San Rafael City Council and Novato and Southern
Marin fire district boards “granted no less than 38 pension enhancements from
2001 to 2006, each of which appears to have violated disclosure requirements
and fiscal responsibility requirements of the California Government Code.”
At issue were actions that violated public
right-to-know rules — transgressions raising questions about whether valid
contracts were created and whether retirement benefits have vested, the jury
reported.
“One result of these pension enhancements is
that they contributed to the increase of the unfunded pension liability of the
Marin County Employees Retirement Association from a surplus of $26.5 million
in 2000 to a deficit of $536.8 million in 2013,” the jury said.
Brown had said he submitted
his petition, in effect a lawsuit, to the appellate court because it had been
his understanding “that all matters having to do with a retirement board
governed by the County Employee Retirement Law ... must be addressed” to the
state appeals court.
He asked the court to
determine whether the Marin County Employees Retirement Association, or pension
board, must “acknowledge that there is a legitimate question as to whether (it)
is allowed to pay” benefits approved inappropriately.
BENEFITS ‘PROPERLY ADOPTED’
The jury’s report has been
all but dismissed by elected officials of agencies involved, who say their
actions were in substantial compliance with the law.
Jeff Wickman, head of the
county pension system that includes San Rafael and the two fire districts, said
that granting of benefits is the responsibility of the plan’s agencies, not the
administrators overseeing the program at the employees’ association. Wickman
added the association “has and will continue to operate on the basis that the
benefits were properly adopted by the plan sponsors.”
The appeals court’s
decision came after the association filed a “preliminary response” with the
court asserting Brown filed his action with the wrong court.
“Petitioner has improperly
bypassed the Marin County Superior Court with his filing,” pension board
attorney Ashley Dunning said in a letter to the Court of Appeal. “Petitioner
did not first seek juidical review by the Superior Court, which has original
jurisdiction over cases brought against the Marin County Employees Retirement
Association.”
Further, the employees
association has no obligation to mount investigations on Brown’s behalf, she
added.
Brown’s petition claims the
employee’s association “is failing in its fiduciary duty” to members not
receiving enhanced benefits as administrators deplete funds to pay for illegal
benefits.
Brown said he filed suit
after the pension board failed to respond to his concerns or even put the
matter on its agenda.
“This is another step in
our ongoing process to hold elected and appointed officials accountable,” said
Jody Morales, founder of the sustainable pension plans group.
January
23, 2016
Marin
Independent Journal
By Nells Johnson
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