CalPERS sued for withholding complete pension data

The California Public Employees’ Retirement System (CalPERS) is unlawfully withholding information necessary to help safeguard the system from waste, fraud and abuse, a just-filed lawsuit alleges.

The problem of disability fraud has plagued California’s public pension systems for decades, costing taxpayers untold millions.

One of the first documented cases occurred in 1992, when a retired officer drawing a tax-free disability pension was spotted competing in a local rodeo.

As discussed in more detail below, historically lax oversight encouraged such abuses, which continue to this day.

Earlier this year, for example, the Los Angeles Times reported on an allegedly disabled firefighter who had competed in a half-marathon. The Times report ultimately led to an arrest and calls for reform from city councilmembers.

To its credit, and likely in recognition of the fact that the problem extends beyond just those who compete in athletic competitions while on disability, CalPERS encourages the public to report cases of suspected fraud and abuse to its disability fraud tip line.

Yet the fund, which manages over $300 billion in assets and receives nearly $20 billion annually from California taxpayers and public employees, has inexplicably refused to disclose the very information necessary to identify such cases of potential abuse.

Today, the Nevada Policy Research Institute (NPRI) has filed a public records lawsuit against CalPERS to obtain this information for its Transparent California website — the state’s largest and most comprehensive public pay and pension database.

Specifically, Transparent California requested the one-word designation of either “regular” or “disability” that would identify the type of pension received by retirees, so that the public could better assist CalPERS in its efforts to identify cases of disability fraud.

Despite the law’s presumption of openness, and binding case law precedent requiring disclosure of the requested information, CalPERS denied the request by citing a statute that makes confidential employees’ personnel and medical files.

“It’s highly unlikely CalPERS actually believes providing the one-word designation of the type of benefit received by its members is equivalent to providing a copy of their medical records, which is properly exempt from disclosure,” said Transparent California Executive Director Robert Fellner.

“Instead, CalPERS is exploiting the lack of any penalties for governments who unlawfully withhold public records, secure in the knowledge that taxpayers will be the ones required to pay all legal fees incurred.

“Sadly, the lack of teeth in California’s Public Records Act has effectively negated the presumption of openness enshrined in state law. The Legislature must amend the law so that those who violate it are held personally liable, just like any other citizen would be.”

Abuses previously uncovered

Public pension disability fraud in California has been an issue since at least 1992, when investigators uncovered an officer who was drawing a tax-free disability benefit competing in a local rodeo. Further investigation revealed the retired officer had won gold and silver medals in a Police Olympics swim competition the very month she filed for disability, according to an Associated Press report.

In 2005, the Sacramento Bee exposed widespread fraud at the California Highway Patrol Department, where over 80 percent of retiring chiefs would claim injury within 2 years of retirement. Then-Governor Arnold Schwarzenegger appointed a task force to investigate the Bee’s findings, which culminated in multiple arrests.

More recently, the Los Angeles Times uncovered abuses taking place in the city pension fund, like a firefighter who competed in a half-marathon while claiming disability for an injured knee. At least one retired officer has since been arrested on suspicion of disability fraud since the Times published their findings earlier this year.

“These types of abuses are naturally much easier to detect when the pension fund distinguishes disability benefits from a regular pension,” Fellner said.

“In addition to both the city and county fund of Los Angeles, nearly two dozen of California’s independent pension funds do disclose this information, further undercutting CalPERS arguments for secrecy.”

As indicated above, CalPERS itself recognizes the importance of the public’s assistance in identifying cases of disability fraud, and encourages the public to report suspected cases of fraud to its disability fraud tip line.

“Refusing to disclose benefit type prevents the public from providing the very oversight CalPERS claims is essential in order to safeguard against waste, fraud and abuse,” Fellner said.

CalPERS refusal to identify benefit type on the grounds of confidentiality is even more perplexing, given the vastly more comprehensive and invasive information disclosed by the agency elsewhere.

“It’s hard to imagine a coherent legal standard that shields benefit type, while simultaneously making public the vastly more comprehensive information found in CalPERS own public hearings and state Workers’ Compensation reports,” Fellner said.

For more information, please contact Robert Fellner at 559-462-0122 or Robert@TransparentCalifornia.com.

Transparent California is California’s largest and most comprehensive database of public sector compensation and is a project of the Nevada Policy Research Institute, a nonpartisan, free-market think tank. The website is used by millions of Californians each year, including elected officials and lawmakers, government employees and their unions, government agencies, university researchers, the media, and concerned citizens alike. Learn more at TransparentCalifornia.com.

 

Lack of penalties allows San Diego Unified to disregard state’s public records law

As long as government employees are free to violate the state’s public records law with impunity, Californians will continue to be denied the fully transparent government promised to them under state law.

While California’s Public Records Act declares that governmental transparency is a “fundamental and necessary right of every person in this state,” the realization of this promise is severely undercut by the lack of any penalty for government officials who blatantly violate the law.

As a result, some agencies are comfortable ignoring the law entirely, adopting what can only be described as a “well, sue us” mentality.

This was the tactic employed by the Los Angeles County West Vector Control District — a local government funded through a supplemental fee included on residents’ property tax bill.

Beginning in 2014, TransparentCalifornia.com requested the district’s pay data as part of its effort to populate the site with the salaries of every government employee in the state.

Despite state law mandating a response within 10 days of its receipt, the district ignored the request and numerous follow-ups for years. Remarkably, even a certified mail letter warning of imminent legal action failed to elicit a response from the district.

It was only after a lawsuit was filed did the district finally acknowledge the request — at which point they provided all of the requested data just a few days after the suit was filed.

But shouldn’t the right to a transparent government apply to all Californians, and not just those with the time and resources to pursue costly litigation?

And it’s not just the smaller agencies who behave this way, even the massive San Diego Unified School District routinely flouts the provision of the law that requires “prompt” disclosure of public records.

Take Transparent California’s most recent request for salary data from the district as an example.

On June 12, the District replied and asserted that they would need approximately three months’ time in order to provide the requested information.

Yet the file that was ultimately provided was marked as being created and last modified on June 6 — indicating it had been in the school’s possession the entire time! An inquiry asking if it was normal policy for the school to delay production of readily available, existing records for nearly three months went unanswered.

In addition to violating the law, such unjustified delays are particularly troubling given the District’s recent adoption of a policy whereby it deletes all emails after only a year — creating a scenario where potentially responsive records could be deleted and withheld from a requester, purely as a result of the school’s habitually delayed response time.

Sadly, examples of governments flouting the mandates of California’s Public Records Act are much greater than the few mentioned here, which is why Assemblyman Rob Bonta, D-Oakland, sponsored AB1479 last session.

The bill would have allowed a court to impose a penalty of between $1,000 and $5,000 — paid directly to the requester — when a government unlawfully denied access to public records. While the fees were far too small to be a truly effective deterrent, it was still a step in the right direction. Unfortunately, despite having passed the Assembly by a 71-1 landslide, lobbying by government unions led to the bill’s functional demise in the Senate, where every word of the penalty provision was erased.

If the promise of a truly transparent government is ever to be realized, the Legislature has only one path forward: adopt the same approach for how private citizens are treated and impose penalties on those who violate the law.

In North Carolina, government employees who knowingly violate the state’s public records law can be held personally liable for the requester’s legal fees — a mechanism which ensures that all residents receive the fully transparent and accountable government they are entitled to.

The California Legislature should adopt a similar provision here.

There’s always been something unsettling about granting public officials immunity from crimes and other wrongdoing — but the case for immunity is particularly weak when it comes to those who intentionally deny Californians their “fundamental and necessary right” of a transparent government.

Indeed, much of the justification for granting government the power of taxation is the notion that those funds are used to serve the public in both a transparent and accountable fashion. Allowing government employees to freely ignore their obligations in this regard threatens to undermine that entire edifice.

The California Legislature put together a nearly perfect public records law. Now it just needs to make sure it’s actually followed.

Robert Fellner is research director at TransparentCalifornia.com — the state’s largest public pay and pension database — where he has made or overseen more than 10,000 public records requests to over 2,500 unique California governments. A condensed version of this commentary was first published in the OC Register.

Public records lawsuit filed against Los Angeles government

Today, the Nevada Policy Research Institute (NPRI) filed a lawsuit in Los Angeles County Superior Court against the Los Angeles County West Vector Control District for refusing to comply with the California Public Records Act (CPRA).

The lawsuit stems from NPRI’s work on its TransparentCalifornia.com website — which publishes pay data for approximately 2.5 million California public employees from nearly 2,500 unique government agencies.

The District describes itself as “the second largest vector control district in the state of California by population served.” Vector control districts are also known as mosquito abatement districts which, as their name implies, are focused on preventing and controlling the spread of mosquitos and the diseases they carry. Residents fund these public agencies through an annual fee included on their property tax bill.

The District is one of 45 mosquito abatement districts statewide, according to data provided to Transparent California by the California State Controller’s Office.

Of the 15 mosquito abatement districts with the largest payroll statewide, the Los Angeles County West Vector Control District is the only one that has refused to comply with Transparent California’s request for basic salary data:

Transparent California first submitted a request for District employee names and wages in June 2014. After the District ignored the initial request — and every subsequent request — Transparent California submitted a renewed request via fax, e-mail and certified mail to the District on September 19, 2017.  The request explicitly stated that Transparent California would be forced to resort to legal action if the District did not respond within ten days, as required by state law.

Despite returning the certified mail receipt indicating the request was successfully received on September 21, 2017, the District has so far failed to provide a response of any kind.

Transparent California research director Robert Fellner issued the following statement:

“The California Public Records Act requires that public records be disclosed in a prompt fashion, but this mandate is useless if governments can choose to ignore it with impunity. As a public agency funded by tax dollars, the Los Angeles County West Vector Control District has an obligation to be transparent and accountable to the public it was created to serve.”

The District’s willingness to so blatantly violate state law is an example of why the CPRA needs harsher penalties, Fellner added.

“In order for the governmental transparency promised to Californians to be fully realized, the Legislature must add real penalties for government actors who knowingly and willfully violate the state’s public records law.”

The lawsuit asks the court to compel the Los Angeles County West Vector Control District to comply with the CPRA and provide a copy of records documenting district employees’ name and salary information so that it may be published online at TransparentCalifornia.com.

TransparentCalifornia.com is used by millions of Californians each year and has received praise from elected officials, government employees, the media and concerned citizens alike for its ability to successfully improve transparency in government.

For more information, please contact Robert Fellner at 559-462-0122 or Robert@TransparentCalifornia.com.

Transparent California is California’s largest and most comprehensive database of public sector compensation and is a project of the Nevada Policy Research Institute, a nonpartisan, free-market think tank. Learn more at TransparentCalifornia.com.

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Fresno Council of Governments sued for violating state’s public records law

Update: On September 29, 2017 the Fresno Council of Governments complied with our request and agreed to pay our attorney’s fees. Their data can be found here.


Today, the Nevada Policy Research Institute (NPRI) filed a lawsuit in Fresno County Superior Court against the Fresno Council of Governments for refusing to comply with the California Public Records Act (CPRA).

The lawsuit stems from NPRI’s work on its TransparentCalifornia.com website — which publishes the pay and pension data of nearly 2.5 million California public employees from over 2,000 unique government agencies.

The Council denied Transparent California’s request for records documenting the names and wages of its employees on the grounds that such information is confidential.

The Council’s rationale for withholding the requested public records contradicts longstanding California law, dating back to a 1955 official Attorney General Opinion that held that “the name of every public officer and employee, as well as the amount of his salary, is a matter of public record,” and a 2007 state Supreme Court case which codified that same finding.

Thus, the Council has unlawfully denied a request to access public records, according to Transparent California research director Robert Fellner.

“The California Public Records Act is emphatic in its purpose to make public all records concerning governmental affairs. The Fresno Council of Governments’ refusal to provide an accounting of their employees’ names and taxpayer-funded salaries is a clear violation of the law.”

The Council is designated by the state as a transportation planning agency and is comprised of 15 Fresno-area cities and the County of Fresno. The California State Controller’s Office reports that there are 11 “Council of Governments” agencies statewide. Transparent California has received the requested information from every one but Fresno:

Transparent California’s repeated attempts to inform the Council of their obligations under the law and elicit a lawful response went unheeded, leaving litigation as the only avenue available to access the public information sought.

The lawsuit asks the Court to compel the Fresno Council of Governments to comply with the CPRA and provide a copy of records documenting their employees’ name and salary information so that it may be published online at TransparentCalifornia.com.

TransparentCalifornia.com is used by millions of Californians each year and has received praise for its ability to successfully improve transparency in government by elected officials, government employees, the media, and concerned citizens alike.

For more information, please contact Robert Fellner at 559-462-0122 or Robert@TransparentCalifornia.com.

Transparent California is California’s largest and most comprehensive database of public sector compensation and is a project of the Nevada Policy Research Institute, a nonpartisan, free-market think tank. Learn more at TransparentCalifornia.com.