Disability retirees still a mystery

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City of Gilroy

The City of Bell, once marred by scandal following the 2010 indictment of a significant portion of city officials for corruption, released the names of its retired public safety employees who have claimed a work-related disability. Bell sent a list of the names within 10 business days in response to a Dispatch request filed under the California Public Records Act.
In contrast, the City of Gilroy, relying on the opinion of Gilroy’s contracted San Jose-based legal firm, Berliner-Cohen, denied the exact same request. Berliner-Cohen billed the City more than $2,700 for research and time spent to produce a document denying the request.
Two attempts to obtain the names of former police and fire employees who have claimed they were injured on the job were prompted by a September report issued by the Santa Clara County Civil Grand Jury, which estimated too many public safety retirees in Gilroy are claiming a semi-tax-free haven of a work-related disability.
Assistant City Attorney Jolie Houston cited confidentiality issues and non-disclosure agreements that prevent City officials from releasing the names or the pension amounts of disabled police officers and firefighters.
Berliner-Cohen spent nearly 12 hours – at a rate of $232 per hour – researching case law, making phone calls, writing emails and drafting the responses to the Dispatch’s public information requests, according to invoices.
Since 2007, six of 14 former police and fire employees in Gilroy – three police officers and three firefighters – have cited an industrial disability, which exempts the first 50 percent of their monthly pension from state and federal income tax for life, according to the Grand Jury. Of Gilroy’s retired employees, 17 are in the “$100,000 Club” – and 11 of those are retired from public safety jobs.
And as detailed in the Grand Jury’s report, the average pension for the 14 public safety retirees from Gilroy is $133,800.
Of cities in Santa Clara County, the Grand Jury found Gilroy had the second highest percentage of industrial disability retirements at 39 percent. Only Palo Alto had a higher rate at 51 percent. Most cities hovered around 26 and 30 percent.
According to Mayor Don Gage, five of six Gilroy retirees worked “full public safety careers” before their injuries surfaced as they approached retirement. The other employee, Gage wrote in a formal response to the Grand Jury, declined the City’s offer of a non-safety position in Gilroy, as is the employee’s right under state law, before deciding to retire early.
“I personally don’t see any reason why those names of the people who retired on disability – just their names and not their disabling conditions – should be confidential information,” said Mayor Pro Tempore Perry Woodward, who founded Gilroy’s Open Government Commission. “I’m going to have to be persuaded there is a compelling reason not to disclose that information. In my view, it ought to be released.”
Walt Glines, who holds a seat on the OGC, says he’d like to see what legal justification the City Attorney is citing before making up his mind.
“I will be most interested in seeing how our City Attorney’s opinion differs from Bell since the facts seem to be the same – except that Bell provided employee names,” Glines observed. “However, my belief without knowing more specifics, is since it is the taxpayers’ money, it is public information.”
Woodward believes there is an “inherent conflict of interest” in having the City Attorney decide which information is released and which records requests are denied, because Berliner-Cohen makes money off of a denied request.
“Say you get (a request) from the newspaper and the attorney says ‘release it.’ That’s it, and you don’t make any money,” said Woodward, a practicing attorney who focuses on real estate and commercial disputes. “But if the attorney says ‘deny it,’ then there’s going to be back and forth. The attorney goes to the Open Government Commission and there may be a lawsuit. All this work gets generated by virtue of this ‘conceal everything’ approach.”
In her Oct. 21 response to the Dispatch’s second request, Houston provided the names of all public safety retirees but did not specify which former employees were disabled. The City Attorney’s Office also declined to provide the pension amounts, writing “the City does not have access to or otherwise maintain retirement payment records,” Houston wrote.
Chief Legal Counsel Jim Ewert with the California Newspaper Publishers Association, which seeks to empower access to public information, said Gilroy is simply “stonewalling.”
“The City, regardless of a scathing Grand Jury report, is nonetheless digging its heels on showing how it’s spending public money,” Ewert said. “There is no exemption that is on point that prohibits the disclosure of the name of the beneficiary and the amount that the disability beneficiary is receiving.”
Furthermore, Ewert is concerned that obfuscation of City records is an “emerging trend” among some government agencies in an attempt to protect police and fire employees – who happen to have the “lion’s share” of unfunded pension liabilities and disability claim obligations.
According to Gilroy Finance Director Christina Turner, unfunded pension obligations associated with the police and firefighters is $22.1 million. The City’s other outstanding pension liabilities for the remaining bargaining units – which include all other employees – total $15.2 million, she noted.
On Feb. 11, the City of Bell – located within Los Angeles County – replied to the only request from the Dispatch asking for the names of industrial disability public safety retirees. After consultation with the City of Bell’s legal team and within 10 business days, City Clerk Jose Louie Valdez provided the names of eight former police officers.
The City of Bell contracts with Los Angeles County for fire protection services and is not liable if a disability is claimed.
City officials in Bell “decided there is no legal prohibition on releasing that information,” Woodward observed.
In its report, the Grand Jury applauded the City of Campbell for encountering zero industrial disability retirement claims since 2007. Campbell contracts with the County for fire protection, and it only maintains the City’s police department.
Campbell Human Resources Manager Jill Lopez attributes the lack of industrial disability retirements out of seven police officers since 2007 to “quite a bit of safety training” coupled with a period of low reported claims – and a bit of luck, she said in an email.
Back in Gilroy, Gage says the state criteria for a permanent disability should be revisited, as doctors are typically patient advocates and don’t necessarily favor the employer.
“Changes to the Government Code are needed to reduce the rate and number of public safety industrial disability retirements,” he added. “Bottom line: there is risk of physical injury and illness when working as a police officer or firefighter.”
The Dispatch intends to appeal to the OGC March 13, requesting an examination of why the six names should remain confidential or why they should be released.
-Sept. 16: Dispatch asks for the disability claims from industrial disability retirees over the past five years.
-Sept. 26: City attorney responds, denies request, cites confidentiality.
-Oct. 11: Dispatch amends request, seeks names and payment amounts for industrial disability retirees over the past five years.
-Oct. 21: City attorney denies request for names of disabled retirees. Names of all public safety retirees are provided but payment amounts are not included.
-Jan. 30: Dispatch asks City of Bell in southern California, formerly marred by a 2010 corruption scandal involving massive misappropriation of public funds, for the names of all industrial disability retirees over the past five years.
-Feb. 10: Bell City Clerk requests authorization to extend deadline for consultation with legal counsel.
-Feb. 11: Bell City Clerk provides the names of eight retired police officers, as firefighters are contracted through Los Angeles County.

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