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.
