Agency mulling whether to release county pension pay data

Bakersfield.com

July 15, 2010

By James Burger

The Kern County Employees’ Retirement Association, the agency that invests taxpayer money to fund county employee pensions, has kept the size of each member’s retirement check a secret for years.

But the legal argument KCERA lawyers say demands secrecy is crumbling in courts across California, forcing them to choose between angering retirees and clinging to a law that may not stand up in court.

On Wednesday The Californian asked the retirement association to release the size of each county retiree’s monthly pension check and other related data as part of its ongoing look at how skyrocketing benefit costs are hitting county coffers. A Sacramento County court had just ruled taxpayers have a right to that information.

It turned out that earlier Wednesday, the Kern County retirement board had discussed notifying association members that the information was likely to be sought, according to Executive Director Anne Holdren. In an unusual move, the board also talked about waiting 30 days to release the data so retirees would have a chance to understand the situation and consider their legal options.

But Holdren said Thursday that wasn’t a firm time frame and the association hasn’t decided whether to release the information. Under open records law, the Association has 10 days to respond to The Californian’s request; it can request a 14-day extension.

Several KCERA board members, including Kern County Supervisor Mike Maggard, did not return calls seeking their point of view Thursday.

Michael Turnipseed of the Kern County Taxpayers Association said the massive cost of public retirements demands disclosure of how much retirees receive.

“We are laying off employees in government because the pension costs are consuming money that would go to funding services,” Turnipseed said.

INFORMATION GAP

The Californian has been down this road with Kern County’s retirement association before.

When disgraced Kern County Public Health Director B.A. Jinadu left the county in 2007 owing the state of California $354,572 for overbilling Medi-Cal at clinics he operated on the side, KCERA would not say how big his pension checks were.

Reporters used benefit calculators to estimate he was receiving somewhere between $83,000 and $104,000 a year.

KCERA justified withholding the information by referencing the County Employees Retirement Law of 1937. The section quoted — 31532 — indicates records cannot be released unless a court demands it or the member authorizes it.

That wording has offered county retirement agencies protections not enjoyed by statewide retirement funds such as the California Public Employees’ Retirement System.

CalPERS, which manages pension benefits for city of Bakersfield retirees, does release pension payout information per the California Public Employees’ Retirement Law, which says such data is public, said CalPERS spokesman Brad Pacheco.

But in the last year, four county superior courts in California have said the section 31532 argument does not trump the California Public Records Act.

STUCK IN THE MIDDLE

On Friday, Sacramento County Superior Court Judge Allen Sumner ordered the Sacramento County Employees’ Retirement System to release pension data — including the names of retirees and their specific pensions — after The Sacramento Bee and First Amendment Coalition sued for the information.

“Sacramento County faces difficult budget decisions. Its reduction of critical services has generated significant public debate. The public has a strong interest in knowing how government is spending their money, and a constitutional right to such information,” Sumner wrote in the conclusion to his 16-page opinion.

Kern is in a similar financial boat.

This year the county will pay KCERA $193 million to fund the county’s pension obligation, which in recent years has been troubled by increases in benefits and the economy’s downturn. That’s up from $139 million last fiscal year.

And it just endured one of the toughest budget years in recent memory — and is poised to endure another.

Attorneys for Sacramento County’s retirement association made the same government code argument Kern County’s has used to keep records confidential.

But Sumner rejected that argument.

Deputy Kern County Counsel Martin Lee, who represents KCERA, said the problem is the four decisions from Contra Costa, Stanislaus, Orange and Sacramento counties don’t have standing in Kern County.

“There’s no case law on it that I can look at and say, ‘A state court has said this is public information,'” Lee said. “What a superior court judge in Contra Costa County says does not mean a superior court judge in Kern County would say the same thing.”

He said KCERA is stuck between a state law that directs it to keep the information private and four trial court rulings that argue the public interest trumps that government code.

Lee said he is reviewing The Californian’s request for information. The agency has not decided how to respond, he said.

The California Foundation for Fiscal Responsibility, which led the charge for Orange County pension records, has also tried to get records from Kern.

‘BE BOLD’

Another local open government advocate said the county needs to take the superior court rulings to heart.

“People don’t like secrecy in government,” said Mark Salvaggio, a former middle school teacher and Bakersfield City Council member. He receives two state pensions that total nearly $70,000 a year.

“Be bold,” he said. “It is better to err on the side of open government.”