Here is a classic case of do the ends justify the means.
Recently, it came to my attention that three Glendora council members decided pay for their CALPERS pension benefit in a decision that made some experts skeptical as to if it violated California open meetings law.
In what the city clerk described as a “display of leadership” in a public records request, three council members recently decided to start paying for their CALPERS benefits this year.
But the voluntary action, which took effect all on the same date, calls into question if the council violated California open meeting laws by secretly meeting and making decisions as a group.
“We were asking all of the employees to pay their PERS benefits and it seemed appropriate for us to do the same thing,” Councilman Doug Tessitor said. “When we were having discussions in closed session about the Glendora municipal employees association, there were references made to ‘we ought to do the same thing’ and that was the only discussion I had with anybody about this.”
Mayor Ken Herman, councilwoman Karen Davis and Tessitor had never paid for their CALPERS pension benefit before the change, according to city documents. Councilmen Gene Murabito and Terry Kent both receive the PARS benefit versus PERS, paying the employee share while the city picks up the other half of the benefit.
Davis also denied the decision was made by the group and instead said each person came to the decision on their own accord.
But the fact each council member started to pay the full deduction of the benefit — $28.25 — on Sept. 24, 2010, according to documents, lends credence the decision was made as a group.
Tessitor said questions about open meetings law missed the point, which is the council was doing the right thing.
“It seems to me the statement should be the council is doing the appropriate thing by doing what they are asking the rank and file employees to do,” he said.
Most people would probably agree. The CALPERS system has been the focus of heavy criticism due to the cost to the state and cities, what some people believe is too good a deal for government employees, and more. The council is merely leading by example and doing something that probably should have be done sooner.
But if that is the case, why not be more transparent in the decision?
Council members in Glendora are paid $700 a month in a stipend for being on the council.
City Clerk Kathleen Sessman said she wasn’t part of any discussions with city officials regarding the council members decision and the words regarding leadership were chosen by her.
“I just know when they did it, they did it informally, which is why I didn’t have any resolutions,” regarding the change, Sessman said. “It wasn’t meant as anything other than they voluntarily did this and I thought it was a nice way of saying it.”
The California Ralph M. Brown Act stipulates that three or more council members can’t meet to make decisions on city policy without public notice.
Two experts on the subject both agreed the potential for infringement by the Glendora council members was in a relative gray area.
First Amendment Coalition attorney Peter Scheer said, assuming the worst case scenario, that because no policy was changed, the council members didn’t break the law.
“If they had a discussion if the council should vote and require all of them to do this … and basically rescind whatever policy it is that now exempts them, that certainly would have been a Brown Act violation,” Scheer said. “But if they are doing it in a way that doesn’t change any policy and does not need any official action, it is at least arguable that this falls outside the Brown Act.”
Even if it isn’t a violation, Scheer said elected officials should always try to make decisions public whenever possible.
“The prudent thing to do would be to give full notice to people that they were thinking about it,” Scheer said. “And if they are going to get together and talk about it, do so publicly. Let the press know and listen in on that discussion, so at least it would be done in the spirit of the Brown Act.”
Terry Francke, an attorney for public information advocacy group Californians Aware, said residents should be worried about elected officials making decisions behind closed doors.
“I think citizens have a right to be skeptical and suspect that a collective discussion occurred, which constituted a serial meeting in violation of the Brown Act,” Francke said in an e-mail. “Proof is a different matter.”
Scheer added the public shouldn’t be too hard on the council members since the decision was in the public’s best interest.
“I think anyone would say they should be commended for doing this,” he said. “It is kind of incredible they were getting a free ride. But they were and they shouldn’t be overly criticized or second guessed for having done the right thing.”
I think Scheer kind of nails it here. Was the action the right one? Yes. Should they have been more public about it? Probably.
And the part about the free ride makes me think about why this maybe wasn’t more public. How many people knew that a council that gets paid a $700 stipend gets the CALPERS benefit? Probably not many. Either way, people know now. If that is good or bad for the council, you tell me.
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