A Mill Valley man’s bid for court review of a civil grand jury finding that Marin agencies broke the law by approving pension benefits without public notice could cost taxpayers a pretty penny.
The Board of Supervisors on Tuesday learned the administration has set aside $50,000 to hire an outside attorney to defend the county against legal action brought by David Brown, who filed a petition asking the Marin Superior Court to evaluate past pension actions.
Brown seeks to have the court declare county supervisors and administrative staffers in conflict of interest, and to compel the county to provide $40,000 for an independent legal review of issues involved.
Robin Johansen, a founding partner of Remcho, Johansen & Purcell, a firm specializing in ethics and government decision-making, was hired for fees ranging from $300 to $425 per hour, depending on the attorney handling services. Paralegal work will be handled for $250 an hour.
“The board could have saved $50,000 if it had done the right thing when the grand jury report was released, and then again when I filed the suit,” Brown said. “They can still save most of it by agreeing to a settlement,” he added. “Perhaps the third time will be the charm.”
Outside counsel is required because County Counsel Steven Woodside is named in Brown’s complaint, according to Assistant County Administrator Angela Nicholson. The county administrator is authorized to enter contracts up to $50,000, and the matter was brought to the board’s attention “as an informational item” in order to “be transparent with the public,” she said.
Brown last month filed a similar petition with the 1st District Court of Appeal in San Francisco, but authorities there dismissed it outright, saying he must first approach the local court. Attorney Woodside has called Brown’s action “an abuse of the legal process.”
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 spelled out in the code — transgressions raising questions about whether valid contracts were created and whether retirement benefits had 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 has asserted that supervisors and key officials who benefit from pension funds should have recused themselves from responding to the grand jury because of financial conflict. Further, a county legal consultant’s $40,000 analysis that all but dismissed the jury report was biased, telling only one side of the story, making a retort by independent counsel hired at similar cost appropriate, Brown contended.
Brown has asked the court to declare key officials in conflict, find the board “forfeited its right to address this matter” and order the county to pay for a new legal brief “arguing the other side of all relevant issues.” The court should step in to conduct a “fair and unbiased” judicial review of the grand jury report, he added. Further, county supervisors and key staff should be directed to issue individual apologies if the court finds they had conflicts of interest, according to Brown.
Jeff Wickman, head of the county pension system that includes San Rafael and the two fire districts, has noted that the granting of benefits is the sole responsibility of the plan sponsors, or agencies. The pension system “has and will continue to operate on the basis that the benefits were properly adopted by the plan sponsors,” according to Wickman.
April 21, 2016
Marin Independent Journal
By Nels Johnson
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