CLIENT ALERT MEMORANDUM
To: All Police Chiefs and Sheriffs
From: Martin J. Mayer, Esq.
PENSION INFORMATION ORDERED TO BE MADE PUBLIC
May 17, 2011
On March 15, 2011, the Ninth Circuit U.S. Court of Appeals ruled that the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) applied to persons temporarily detained at the holding facility of the Santa Ana Courthouse. In the case of Khatib v. County of Orange, et al, the Court ruled that requiring the plaintiff, a Muslim woman, to remove her headscarf while in the courthouse holding facility might have violated her rights under RLUIPA.
On May 11, 2011, the California Court of Appeal (3d District) ordered that Sacramento County make public the names of retirees and their retirement benefits. In the case of Sacramento County Employees Retirement System v. Superior Court of Sacramento County (Sacramento Bee), the Court ruled that the California Public Records Act (CPRA) mandates that such information be made available to the public.
The Court of Appeal noted that “(a)fter much public outcry about government pensions, The Sacramento Bee and the First Amendment Coalition filed a petition for writ of mandate to compel the Sacramento County Employees Retirement System (SCERS) to reveal the pension benefits of named retirees.”
The Retirement Law states, in part, that (s)worn statements and individual records of members shall be confidential and shall not be disclosed to anyone except insofar as may be necessary for the administration of this chapter or upon order of a court of competent jurisdiction, or upon written authorization by the member. (Emphasis added.)
The trial court ordered SCERS to disclose pension benefits retirees received in calendar year 2009, “including the name of each recipient, the date of retirement, the department retired from, last position held, years of service, base allowance, cost of living adjustment, total health allowance and monthly benefit.”
The appellate court noted that “the trial court concluded the amounts of pension benefits were not part of the individual records of members ( 31532) and ordered SCERS to disclose the requested information. SCERS promptly petitioned this court for a writ of mandate to overturn the disclosure order. We stayed that order, and issued an order to show cause. For the reasons detailed below, we shall deny the writ petition.”
COURT’S ANALYSIS
The Court of Appeal noted that the California Supreme Court has previously held that “the public has a general right to know the names and salaries of public officials and employees under the Public Records Act.” In addition, “the Attorney General, in an opinion cited with approval by the California Supreme Court, has reached a similar conclusion regarding the Retirement Law, finding that the phrase individual records of members protected by section 31532 does not embrace the pension amounts of named county retirees.”
The Court held, further, that “SCERS must disclose names and corresponding pension benefit amounts of its members.” However, “(t)his does not include the members home or e-mail addresses, telephone numbers or social security numbers.”
In response to the arguments that such disclosure will expose retirees, many of whom are now elderly, to “unwelcome attention, obloquy, and financial predation,” the court stated that ” . . . this court does not legislate. [SCERSs] remedy properly lies on the other side of Tenth Street, in the halls of the Legislature.
The Sacramento Bee argued that the disclosure of such information was in the public’s interest and that there is an increasing demand for information regarding public pensions. The newspaper submitted declarations which set forth the reasons the press was seeking names and data regarding retirees and their retirement benefits.
“According to the declarations, the names of members are sought in order to investigate issues such as cashing out of vacation time or working overtime in the last year of employment, either of which can result in so-called pension spiking, instances of double dipping, where a person receives a pension and salary, instances of triple dipping, where a person receives a pension, salary and unemployment benefits in one year, and other controversial pension practices.”
The Court discussed, in depth, the purpose and intent behind the California Public Records Act (CPRA) and concluded that individual pension information falls under the definition of public records and SCERS conceded that point.
However, “the Public Records Act provides that various records need not be disclosed, including Records, the disclosure of which is exempted or prohibited pursuant to federal or state law . . . ( 6254, subd. (k).) SCERS correctly contends this incorporates the confidentiality rule provided by section 31532, but the parties dispute the scope of that confidentiality rule.”
The Court reviewed the legislative history of the exemption contained in section 31532, along with Opinions of the Attorney General, and concluded that “. . . the term individual records, as used in section 31532, refers to information provided by a member or on the members behalf (such as medical reports), to SCERS, and not all records that pertain to or relate to a member.” (Emphasis in original.)
Right of Privacy
One of the major arguments raised, to withhold this information, was the retirees right to privacy. The Court ruled that the California Supreme Court has already addressed this issue in other cases.
As such, the Court of Appeal held that, “. . . public salary information is not private information that happens to be collected in the records of a public entity. Rather, it is information regarding an aspect of government operations, the disclosure of which contributes to the publics understanding and oversight of those operations by allowing interested parties to monitor the expenditure of public funds. The disclosure of such information under the Act does not violate the right of privacy protected by the California Constitution.
The Court also addressed other challenges to releasing information in which persons believed they had a right of privacy, such as records of persons who have concealed weapons permits, the names of police officers and the agencies for which they work, salaries of government employees, etc. In each instance, the Court identified the justification for releasing such information.
The ultimate conclusion by the Court was that “(a)though SCERS has identified some legitimate interests in nondisclosure, they fall far short of compelling. SCERS has not carried its burden of demonstrating a public interest in nondisclosure that clearly outweighs the public interest in disclosure[.] Since there is a strong public interest in disclosure, the balance must tip in favor of access to the information.”
HOW THIS AFFECTS YOUR AGENCY
If your agency is part of the Public Employee Retirement System (PERS), this case has no impact on you since PERS, apparently, already releases this type of information.
This will, potentially, effect a number of counties who are part of the 1937 Act and
those cities and counties with private retirement systems.
There are other cases currently pending before different District Courts of Appeal which could result in different decisions. In addition, it is possible that Sacramento County will petition the California Supreme Court for review. Only time will tell.
As with all legal issues, it is imperative that you secure the advice and guidance of your agency’s legal advisor. As always, however, if you are our client and wish to discuss this matter in greater detail, please feel free to contact me at (714) 446 – 1400 or via e-mail at mjm@jones-mayer.com.
Information on www.jones-mayer.com is for general use and is not legal advice. The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute an attorney-client relationship.