GULLIXSON: Cutting through county fog
Published: Sunday, September 23, 2012 at 4:01 a.m.
Last Modified: Sunday, September 23, 2012 at 8:54 a.m.
Did Sonoma County supervisors break the law in the way they boosted retirement benefits for themselves and other employees 10 years ago?
The county grand jury posed that question earlier this year, and the county issued its formal response last week. As I read through it, I was reminded of former President Bill Clinton's famous parsing of words: "It depends on what your definition of 'is' is."
If you've forgotten, this was Clinton's rationalization to the grand jury about why he wasn't lying when he said "there's nothing going on between us" in reference to one Monica Lewinsky.
His definition of "is," as he explained, was that there was not something going on at that moment. The implication is — or was — that if the question had used a "was" instead of an "is" he might have answered more truthfully. But then everyone knows — certainly anyone who has had a child who has sought to debate the meaning of "clean" as in "your room" — that the discussion would then proceed to a parsing of the word "was," rather than "is."
The fact is that when one is determined to obfuscate, there's no limit to what that individual will do to fog up the windows.
In that regard, the county did a thorough fog job with its report explaining how county officials "substantially complied" with the law back in 2002 when they ratcheted up retirement benefits.
It's largely because of those increases that the county now finds itself in such hot water financially and faces having to devote a much larger piece of its revenue pie to paying for retirement benefits, making the portion of the pie devoted to fixing potholes and meeting other needs that much smaller.
"A public notice is required to be published two weeks prior to a Board of Supervisors meeting at which a pension increase is to be discussed," the civil grand jury noted. "This notice could not be found in The Press Democrat archives."
That's because it doesn't exist.
But it's worse than that. The California Employees Retirement Law of 1937 clearly states that before benefits can be increased, the Board of Supervisors "shall secure the services" of an actuary, that the actuary "shall provide a statement of the actuarial impact upon future annual costs" and that "the future annual costs as determined by the actuary shall be made public at a public meeting."
None of that happened — not in any way that meets the letter or the spirit of the law. The county sort of acknowledges as much in its response to the grand jury. But it's hard to find it in the lengthy — nearly 40 pages in all — analysis and word-parsing.
County staff first writhes over the word "secure," arguing that the law is "silent" on what it means to " 'secure' the services of an actuary." (That's because the county didn't do it. It relied on a series of less-than-thorough letters from an actuary to the Sonoma County Employees' Retirement Association, which is a separate entity.)
The staff dodges and fades over whether the law is ultimately "mandatory" or just "directory," meaning that the outcome is still irrevocable even though the county mishandled it. (The county ultimately argues that it did nothing wrong but adopted a number of changes to procedures to make sure it doesn't do it again.)
But the worst waffling was saved for what the law means by the county "shall make that information public at a public meeting."
That seems pretty clear to me. But not to the county counsel's office or its consultants. Ultimately they decided that because the issue of enhanced benefits was discussed — in apparently broad terms — during supervisor discussions about collective bargaining agreements, pension obligation bonds and other subjects, and given that the actuarial letters were discussed in apparent detail at two separate SCERA governing board meetings (which were held in a public works conference room with relatively few, if any, members of the public in attendance) that this means the county "substantially" complied with the law.
Really? To me that sounds as if the county substantially blew it.
The general weaseliness of the county's response can be summed up on page seven of the letter from an outside law firm — Steptoe & Johnson LLP of Los Angeles — essentially confirming all of the county's arguments. "The public must be informed of the cost of pension increases on a timely basis," the report acknowledges. "In this case, the public could have obtained this information if it chose to ask."
There you have it. It's the public's fault! It didn't ask.
The fact is the public is still knocking and asking questions — through public comments before the Board of Supervisors, through grand jury inquiries and through questions posed by this newspaper. And it's still getting foggy answers.
One person who is leading the asking is Ken Churchill, a Santa Rosa winemaker who became fed up with all of the shenanigans about pensions and is now a director of a growing citizens group called New Sonoma that's pressing for answers and changes. It was Churchill who first raised questions to the grand jury about how these pensions were approved. In the end, he found the county's answers wholly unsatisfying.
"I think the supervisors just want this to go away," he said.
He hoped the supervisors would seek an analysis from an independent, third-party group or some well-respected individual — someone who does not have a pension coming from the county. But that didn't happen. But here's the more significant question he wants the grand jury and the county to explore. Ten years ago, the presumption — as stated in numerous public documents — was that the cost of the enhanced benefits would be borne entirely by the employees themselves. What happened?
He estimates the enhanced benefits have cost the county an extra $323 million just in the past eight years. Of that, the employees have paid about $80 million. Given that, "how can you continue to have the county pay for it?" Churchill asks. "It's a misuse of funds."
We'll delve into that issue more in a future column. The only thing I can promise at this point is more fog.
(Paul Gullixson is editorial director for The Press Democrat. Email him at firstname.lastname@example.org.)
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