Thursday, April 9, 2015 - City of Oakland
Transcription
Thursday, April 9, 2015 - City of Oakland
All persons wishing to address the Board must complete a speaker's card, stating their name and the agenda item (including "Open Forum") they wish to address. The Board may take action on items not on the agenda only if findings pursuant to the Sunshine Ordinance and Brown Act are made that the matter is urgent or an emergency. Oakland Police and Fire Retirement Board meetings are held in wheelchair accessible facilities. Contact Retirement Systems, 150 Frank Ogawa Plaza, Suite 3332 or call (510) 238-7295 for additional information. RETIREMENT BOARD MEMBERS Walter L. Johnson President Jaime T. Godfrey Vice President James F. Cooper Member Retirement Systems Steven Wilkinson Member 150 Frank H. Ogawa Plaza Oakland, California 94612 Ronald Oznowicz Member AGENDA John C. Speakman Member Osborn Solitei Member SPECIAL MEETING of the BOARD OF ADMINISTRATION of the OAKLAND POLICE AND FIRE RETIREMENT SYSTEM (“PFRS”) Thursday, April 9, 2015 – 10:00 am One Frank H. Ogawa Plaza, Hearing Room 4 Oakland, California 94612 - - - ORDER OF BUSINESS - - A. CLOSED SESSION B. Report of PFRS Board Action from Closed Session (if any). C. Subject: From: Recommendation: Discussion and possible action regarding outside counsel to represent PFRS, the PFRS board, and individual board members in the following litigation: (1) Superior Court of the State of California for the County of Alameda, Case No. RG14753080, and (2) Superior Court of the State of California for the County of Alameda, Case No. RG15758831 Staff of the PFRS Board INTERVIEW CANDIDATES FOR, AND AUTHORIZE HIRING OF, Outside Counsel to represent PFRS, the PFRS board, and individual board members in the following litigation: (1) Superior Court of the State of California for the County of Alameda, Case No. RG14753080, and (2) Superior Court of the State of California for the County of Alameda, Case No. RG15758831, from the law firms herein: 1.Gordon & Polland LLP 2.Best, Best & Krieger D. Open Forum 1 1 Moderation of Open Forum is subject to the discretion of the Board President with consideration of all open meeting regulations. Items discussed in open forum are not for debate and there are no questions. Approved speakers are given the floor and an allotment of time to make statements only. Page 1 of 1 All persons wishing to address the Board must complete a speaker's card, stating their name and the agenda item (including "Open Forum") they wish to address. The Board may take action on items not on the agenda only if findings pursuant to the Sunshine Ordinance and Brown Act are made that the matter is urgent or an emergency. Oakland Police and Fire Retirement Board meetings are held in wheelchair accessible facilities. Contact Retirement Systems, 150 Frank Ogawa Plaza, Suite 3332 or call (510) 238-7295 for additional information. RETIREMENT BOARD MEMBERS Walter L. Johnson President Jaime T. Godfrey Vice President James F. Cooper Member Retirement Systems Steven Wilkinson Member 150 Frank H. Ogawa Plaza Oakland, California 94612 Ronald Oznowicz Member John C. Speakman Member AGENDA Osborn Solitei Member CLOSED SESSION of the BOARD OF ADMINISTRATION of the OAKLAND POLICE AND FIRE RETIREMENT SYSTEM (“PFRS”) Thursday, April 9, 2015 –during regular meeting starting at 10:00 am One Frank H. Ogawa Plaza, Hearing Room 4 Oakland, California 94612 - - - ORDER OF BUSINESS - - THE PFRS BOARD WILL MEET IN CLOSED SESSION DURING ITS SCHEDULED BOARD MEETING Please see the meeting agenda for open session items. The board will convene in open session prior to the closed session. Speakers may address the items of business on the closed session agenda prior to closed session. All speakers must fill out a speaker’s card and submit it to the Secretary to the Board. The Board will reconvene in open session following the closed session to report any final decisions that the board makes in closed session. Pursuant to California Government Code Section 54956.9(d)(1): 1. CONFERENCE WITH LEGAL COUNSEL – EXISTING LITIGATION Retired Oakland Police Officers Association v. Oakland Police and Fire Retirement System, et al., Alameda County Superior Court Action No. RG14753080 2. CONFERENCE WITH LEGAL COUNSEL – EXISTING LITIGATION Retired Oakland Police Officers Association v. Oakland Police and Fire Retirement System, et al., Alameda County Superior Court Action No. RG15758831 CITY OF OAKLAND TO: SUBJECT: AGENDA REPORT Oakland Police and Fire Retirement Board FROM: Katano Kasaine Discussion and Possible Action Regarding Outside Counsel services in two lawsuits Alameda County Superior Court Nos. RG14753080 and RG 15758831 DATE: April 6, 2015 SUMMARY The Oakland Police and Fire Retirement System (PFRS), the PFRS Board, and the seven individual PFRS board members are involved as defendants/petitioners in two lawsuits filed by the Retired Oakland Police Officers Association (ROPOA). After soliciting proposals from qualified law firms, the City Attorney has thus far approved two law firms to be interviewed by the PFRS Board for possible selection to represent defendants/respondents in the two lawsuits. BACKGROUND The first lawsuit, Alameda County Superior Court Action No. RG14753080, names PFRS, the PFRS Board, and the City of Oakland as defendants/respondents, and seeks an order requiring PFRS to include Master Police Officer-Terror Advisor premium (5%) to certain police retirees, as well as back pay of this premium. The second lawsuit, Alameda County Superior Court Action No. RG14758831, names PFRS, the PFRS Board, and the seven individual PFRS board members as defendants/ respondents, and alleges that Resolutions No. 6819, 6824, and 6825 were passed without providing sufficient notice or due process to police retirees. The suit seeks court orders directing PFRS to rescind those resolutions, and to pay damages and punitive damages to affected retirees. The law firms (listed alphabetically) of Best Best & Krieger LLP, and Gordon & Polland, have submitted a statement (attached to this report) answering a few general questions. They will each make a short presentation and be available to answer further questions during the meeting. The general questions are as follows: Special PFRS Board Meeting April 9, 2015 Board of Administration, Oakland Police and Fire Retirement System Subject: Interview and Possible Action - Outside Counsel Services Date: April 6, 2015 Page2 1. Provide a brief statement about your firm's background, such as how long it has been in existence, and the type of work it typically performs. 2. Provide some background about the team members you propose to work on litigation defending the Oakland Police and Fire Retirement System (P FRS), and its board members, and the team members' relevant qualifications and other clients. 3. Provide information about any significant prior litigation your proposed team members have participated in which make them well qualified to defend PFRS and its board members in litigation. 4. Has your firm ever been dismissed from a representation of a public agency or pension system in the last ten years? If yes, please explain (to the extent you can). CONCLUSION If the board selects counsel today, staff and the City Attorney will move forward with formalizing the representation. Respectfully submitted, Katano Kasaine, Plan Administrator Oakland Police and Fire Retirement System Attachment: • BB&K Statement of Interest • G&P Response to Board Questions PFRS Special Board Meeting April 9, 2015 ATTACHMENTS Gordon & Polland LLP’s Response to Board Questions Question 1. Provide a brief statement about your firm’s background, such as how long it has been in existence, and the type of work it typically performs. Answer: Gordon & Polland LLP (the “Firm”) specializes in complex litigation. The Firm’s two principals, Paul Gordon and Jonathan Polland, formed their partnership in 2008, after having worked together for more than 20 years while at other firms. The Firm litigates a wide variety of complex cases, including disputes involving breach of contract, redevelopment agency matters, letters of credit, securities, fiduciary and trust issues, unfair competition, professional malpractice, property tax assessment, and civil rights claims under 42 U.S.C. § 1983. Question 2. Provide some background about the team members you propose to work on litigation defending the Oakland Police and Fire Retirement System (PFRS), and its board members, and the team members’ relevant qualifications and other clients. Answer: The team members who would work on the subject litigation are Mr. Gordon and Mr. Polland. Mr. Gordon is a 1977 graduate of UC Berkeley’s Boalt Hall School of Law, where he was the winner of the James Patterson McBaine Moot Court competition. Mr. Gordon then worked as a Law Clerk to the Hon. William H. Orrick, U.S. District Judge for the Northern District of California, and later served as a Special Master both for Judge Orrick and the Hon. Claudia Wilken, U.S. District Judge. Mr. Gordon has tried numerous cases, and has successfully argued appeals on five published decisions of the California Court of Appeal. Mr. Gordon holds an AV rating from Martindale-Hubbell. Mr. Polland is a 1987 graduate of UC Berkeley's Boalt Hall School of Law, where he was a member of the Order of the Coif and was the winner of the American Jurisprudence Award in Contracts, Labor Law, Commercial Transactions, and Corporations. For over twenty-five years, Mr. Polland has specialized in complex litigation, and has extensive trial, arbitration and mediation experience. Mr. Polland periodically serves as a volunteer Pro Tem Judge for the San Francisco County Superior Court, and as an arbitrator for the Financial Industry Regulatory Authority. Mr. Polland holds an AV rating from Martindale-Hubbell. The Firm’s public entity clients include the California Department of Forestry and Fire Protection, the Port of Oakland, and the City of Morgan Hill. In addition, the California Public Utilities Commission engaged Mr. Gordon to defend one of its designees on the governing board of the California Power Exchange Corporation in litigation involving that entity. Mr. Polland has also represented the Mid-Peninsula Regional Open Space District and the City and County of San Francisco. The Firm’s private entity clients include Time Warner Cable, Inc., and NextEra Energy, the largest wind power company in the United States. ATTACHMENT A 1 Question 3. Provide information about any significant prior litigation your proposed team members have participated in which make them well qualified to defend PFRS and its board members in litigation. Answer: We have extensive experience litigating section 1983 claims. The Firm recently defended the City of Morgan Hill in a high profile case entitled Tichinin v. City of Morgan Hill. The plaintiff was a prominent attorney who claimed that his civil rights were violated by a City Council resolution that criticized his conduct. The attorney had hired a private investigator to follow Morgan Hill’s City Attorney and City Manager, in hopes of gathering evidence of an affair. The attorney intended to present this information “privately” to the City Council, to obtain an advantage for himself and his client. The Firm was retained to handle this case after an unfavorable decision in the Court of Appeal, which found that the plaintiff had stated a cause of action against the City. The Firm developed a new defense strategy, and amassed evidence to support a defense theory of the case that ultimately led to a very favorable settlement. The Tichinin decision is cited as authority in the form jury instructions (“CACI”) adopted by the Judicial Council of California for instructing jurors on section 1983 claims. Mr. Gordon and Mr. Polland also have extensive experience litigating fiduciary duty and trust issues. This litigation has involved a broad spectrum of issues, including the question of what parties have standing to challenge the actions of trustees, and the proper use and disposition of trust assets. Question 4. Has your firm ever been dismissed from a representation of a public agency or pension system in the last ten years? If yes, please explain (to the extent you can). Answer: No. ATTACHMENT A 2 Indian Wells (760) 568-2611 Sacramento (916) 325-4000 Irvine (949) 263-2600 San Diego (619) 525-1300 Los Angeles (213) 617-8100 Walnut Creek (925) 977-3300 3390 University Avenue, 5th Floor, P.O. Box 1028, Riverside, CA 92502 Phone: (951) 686-1450 | Fax: (951) 686-3083 | www.bbklaw.com Ontario (909) 989-8584 Washington, DC (202) 785-0600 Isabel C. Safie (951) 826-8309 [email protected] April 6, 2015 VIA E-MAIL TO [email protected] Pelayo A. Llamas, Jr. Deputy City Attorney City Attorney’s Office 1 Frank H. Ogawa Plaza, 6th Floor Oakland, CA 94612 Re: Statement of Interest to Provide Legal Services to OPFRS Regarding Lawsuits Filed By ROPOA against OPFRS Dear Mr. Llamas: We are pleased to present this statement of interest to provide services to the Oakland Police and Fire Retirement System (“OPFRS”) with respect to two lawsuits filed by the Retired Oakland Police Officers Association and certain individual retirees challenging certain actions taken by the Board of Trustees of OPFRS. 1. FIRM BACKGROUND BB&K is a limited liability partnership established in Riverside, California in 1891, and has been in business for 124 years. We are a full-service law firm with more than 175 attorneys located in nine offices located throughout California and in Washington, D.C. We deliver effective, timely, and service-oriented solutions to the increasingly complex legal issues facing cities, counties, special districts, and other public agencies. As one of the largest and oldest California law firms, we have the resources and expertise needed to provide OPFRS with legal advice and representation on the matter referenced above. BB&K is one of the most experienced municipal law firms in California providing legal counsel to public entities on matters implicating almost every law applicable to public entities. Our attorneys expertly guide public entities through litigation on a myriad of matters from personnel and environmental compliance to eminent domain issues and the interpretation and enforcement of local laws pertaining to retirement systems. As such, we have a long tradition of helping public clients successfully maneuver through legal complexities and governmental mandates. BB&K also has significant experience with multiple-employer and independent defined benefit pension systems similar to OPFRS, including the Oakland Municipal Employees’ Retirement System and the Pasadena Fire and Police Retirement System. 09956.00000\9676666.1 ATTACHMENT B Pelayo Llamas April 6, 2015 Page 2 2. PROPOSED LEGAL TEAM BACKGROUND Howard B. Golds is a partner at BB&K specializing in civil litigation. He has over thirty years of jury and non-jury trial experience as well as substantial experience in front of various administrative agencies. Mr. Golds has previously dealt with significant pension issues relating to both public entities and private unions. Specifically, Mr. Golds has and continues to defend public entities relating to public employee claims for disallowed pension benefits at both the administrative and trial court level and has dealt with union pension trust fund claims relating to both labor union jurisdiction and withdrawal liability under ERISA. Outside the pension arena, he brings years of practical and successful experience serving as defense counsel for public agency clients on a large variety of employment related claims including discrimination, wage and hour, and disciplinary appeals. Isabel C. Safie is a partner at BB&K with significant experience advising and representing stand-alone defined benefit systems on matters that implicate the interpretation and enforcement of the charter and municipal code provisions that form the basis of such retirement systems. As such, she would be assisting Mr. Golds on any aspect of the referenced litigation that involves the interpretation of laws which form and affect OPFRS. Ms. Safie has served as special counsel to the Long Beach Transit retirement plans, including the Long Beach Public Transportation Company Contract Employees’ Retirement Plan and the Long Beach Public Transportation Company Salaried Employees’ Retirement Plan (collectively, “LBT Plans”), since July 2011. She works closely with the retirement board for the LBT Plans on issues related to service and disability retirement claims, benefit determinations, employee eligibility, applicability of the pension form provisions of the California Public Employees’ Pension Reform Act of 2013, qualification under the qualified rules applicable to governmental plans, and fiduciary obligations under state law. She is also working with the Oakland City Attorney’s Office on matters pertaining to the Oakland Municipal Employees’ Retirement System (“OMERS”). Most recently, Ms. Safie was appointed as board attorney for the Pasadena Fire and Police Retirement System. Elizabeth A. Han is a fifth year associate primarily working out of BB&K’s Riverside office. Ms. Han specializes in Labor & Employment litigation, defending public agencies and private companies in retaliation, discrimination, harassment and wage and hour lawsuits in both state and federal court. She also provides guidance and counsel to employers, including drafting policies and providing trainings on various topics. She routinely assists Mr. Golds with litigation matters involving defined benefit plans. 09956.00000\9676666.1 ATTACHMENT B Pelayo Llamas April 6, 2015 Page 3 3. SIGNIFICANT PRIOR LITIGATION The following is a representative list of prior litigation which Mr. Golds has handled: In the Matter of Application for CalPERS Membership for Employment with Cooperative Personnel Services by: Ralph Chandler and Cooperative Personnel Services Board of Administration – California Public Employees’ Retirement System OAH Case No.: 2009100248 (Defense of administrative appeal brought by employee regarding disallowed pension benefits.) In the Matter of the Statement of Issues Against: Linda Katrina Meek and Cooperative Personnel Services Board of Administration – California Public Employees’ Retirement System OAH Case No.: 2012030641 (Defense of administrative appeal brought by employee regarding disallowed pension benefits.) Cooperative Personnel Services v. California Public Employees’ Retirement System Sacramento Superior Court Case No.: 34-2013-80001402 (Prosecution of writ of mandate action brought by employer against CalPERS to resolve issues relating to employee eligibility for retirement benefits.) James W. Towns v. Special District Risk Management Authority (“SDRMA”); Board of Directors of SDRMA; Paul Frydendal; Sacramento Superior Court Case No.: 34-2013-00156587-CU-BC-GDS (Defense of writ of mandate, contract and tort claims brought by former employee against employer and one of its current employees claiming employer responsible for pension benefits disallowed by CalPERS.) In the Matter of the Calculation of Final Compensation of James Towns Board of Administration – California Public Employees’ Retirement System OAH Case No.: 2014070494 (Defense of administrative appeal brought by employee regarding disallowed pension benefits.) 09956.00000\9676666.1 ATTACHMENT B Pelayo Llamas April 6, 2015 Page 4 Trustees of the Southern California IBEW-NECA Pension Plan, et al. v. Pacific Electric Lighting & Sound, Inc. dba “W.B. Walton Electric” U.S. District Court – Central District Case No.: EDCV 12-1352-ABC (SPx) (Defense of action to obtain alleged unpaid pension contributions.) International Brotherhood of Electrical Workers Local Union 440 v. Pacific Electric Lighting & Sound, Inc. dba W.B. Walton Electric U.S. District Court – Central District – Eastern Division Case No.: EDCV 13-00712-VAP (OPx) (Defense of action to obtain alleged unpaid pension contributions.) Ray J. Mitchell Glass Company, Inc. dba Mitchell Glass Company v. Southern California, Arizona, Colorado and Southern Nevada Glaziers, Architectural Metal & Glass Workers Pension Plan Arbitration Arbitrator: Nicholas DeWitt Case No.: 10-023-01 (Action brought by union pension trust to obtain payment for withdrawal liability after employer ceased operations.) Construction Laborers Trust Funds for Southern California Administrative Company, LLC v. Pouk & Steinle, Inc. Ninth Circuit Court of Appeals Case No.: 09-55510 (Appeal of judgment related to jurisdictional dispute between union pension trust and employer that had collective bargaining agreement with different union.) 4. HAS BB&K EVER BEEN DISMISSED FROM A REPRESENTATION OF A PUBLIC AGENCY OR PENSION SYSTEM IN THE LAST TEN YEARS? To our knowledge, BB&K has not been dismissed from representation of a public agency or pension system on a matter similar to the matter referenced in the RFP for which this statement of interest is submitted. Over the course of its existence, BB&K has represented, and currently does represent, hundreds of public agencies. The vast majority of those public agencies are governed by elected councils, boards or commissions. Occasionally as elected officials change, a public agency may decide to go in a different direction for legal advice. BB&K is 09956.00000\9676666.1 ATTACHMENT B Pelayo Llamas April 6, 2015 Page 5 proud of the fact, however, that such changes occur very infrequently and BB&K has many public agency clients who we have served effectively for decades. ******* We believe that we are uniquely qualified to provide the legal services sought by the City on behalf of OPFRS both expertly and efficiently. We look forward to the opportunity to work with the OPFRS and would be happy to answer any questions that you have related to this proposal. Respectfully submitted, Isabel C. Safie of BEST BEST & KRIEGER LLP 09956.00000\9676666.1 ATTACHMENT B