January 9th,
2008 · posted by
plowe
So I’m hearing that Supe
John Moorlach’s
plan to cut retirement benefits
to deputies will be back before
the board on January 29 and that means, of
course, that both sides are gearing up for the
battle.
To update, the board has hired
the law firm of Kirkland & Ellis to file a
lawsuit against the Association of Orange County
Deputy Sheriffs in hopes of taking back
retroactive retirement pay. Moorlach wants to
slice up the so-called 3@50 plan, which he sees
as overly generous and the union says is
untouchable.
This week, the union sent a
letter to the board, saying it wants to see the
legal opinions it has received – along with the
costs.
Hey, me too. And I finally got a
figure I’ve been seeking since October. So far,
the county has paid two attorneys for two legal
opinions at the cost of $163,274.
–
Peggy Lowe
I
learned in September
that the county spent $105,561 on the first
lawyer it hired,
Bruce Ashton.
In October, I asked County Counsel
Ben de Mayo
for the costs of the Derevan opinion.
Remember that one? Costa Mesa attorney
Richard Derevan
looked at the issue and told the board that it
probably wouldn’t win. After calling in the
Reg’s lawyer to fight about it, de Mayo agreed
to give me the costs when the bill came in.
I just got it today. de Mayo said
Derevan’s total billings were $57,713.
According to the union’s letter,
signed by Wayne
Quint, AOCDS president, there are four
attorneys that are being paid to study
Moorlach’s proposal. Ashton, Derevan, Kirkland &
Ellis and a fourth firm, Orrick, Herrington &
Sutcliffe, which the union learned of on
Steve
Greenhut’s blog.
Quint writes in the letter that
Moorlach told an audience of the Orange County
Citizens Against Lawsuit Abuse that, “County
agencies should become more accountable to
taxpayers for the lawsuits they file.”
Backatcha, Quint writes.
“Unfortunately, the taxpayers of
Orange County have now hired four law firms to
pursue an action in the vain hope that activist
judges will create new law,” Quint wrote. “This
is exactly the kind of government waste and
abuse Supervisor Moorlach warned about when he
was County Treasurer in 2000.”
No word yet on whether Quint got
any response to his request.
–
Peggy Lowe
Here’s Wayne Quint’s letter to
the board:
January 8, 2008
Office of Supervisor Chris Norby
Chairman, Orange County Board of Supervisors
10
Civic Center Plaza
Santa Ana,
CA 92701
Re: Request for Disclosure of Legal Analyses &
Taxpayer’s Expenses
Dear Chairman Norby:
I
am respectfully writing to you and the other
members of the Board of Supervisors to request
that you provide the public an opportunity to
review the three or more legal opinions
previously paid for by Orange County taxpayers regarding the proposal to
rescind portions of the agreement made with the
Association of Orange County Deputy Sheriffs
(AOCDS) in 2001. I am also requesting that you
disclose to the taxpayers the amount of money
paid to outside counsel for their review,
analysis and all other activities associated
with the pension recession proposal.
At the July 31, 2007
meeting of the Board of Supervisors, when
discussing the pension recession proposal,
Supervisor
Moorlach said:
“It would have been much easier to just ignore
or just hide it under a rug or whatever because
of the turmoil that something like this to the
Board would bring, we certainly have a issue of
constitutionality . . . .” I am concerned that
hiding “it under a rug” could be perceived by
the County of Orange taxpayers as what is precisely
happening.
I
am aware that there are at least four legal
opinions which analyze the constitutionality and
probability of success in rescinding a portion
of the deputy sheriffs’ retirement benefits.
One of these opinions was authored by Bruce
Ashton of Reish, Luftman, Reicher & Cohen.
According to the minutes of the Board of
Supervisors meeting on March 31, 2007, Mr. Ashton’s firm was retained
“to provide advice and representation” regarding
the proposal. After three months of study and
$105,000 of taxpayers’ money, Mr. Ashton’s work
product was delivered to the Board on June 12,
2007. Supervisor Moorlach quoted a portion of
his analysis in the materials distributed to the
public and to the Board on
July 20, 2007.
It was further referenced in the presentation to
the Board on
July 31, 2007.
However, your memorandum provides only a very
small portion of the analysis by Mr. Ashton —
begging the question as to why the entire
memorandum was not released. Mr. Mario Maneiro
also cited Mr. Ashton’s analysis in his
presentation to the Board as the opinion of
“outside counsel who studied the matter for
several months and has concurred in this
analysis.” If Mr. Ashton’s memo concurs with
the presentation of Mr. Maneiro on July 31,
2007, why is this analysis being kept from those
who paid for it?
We
are further informed that Mr. Ashton’s analysis
was commissioned only after an earlier report by
Orrick, Herrington & Sutcliffe LLP (“Orrick’)
researched the legality of your proposal and
concluded it was illegal. In fact, Mr. Steven
Greenhut of the Orange County Register reported
on September 20, 2007 that the Orrick analysis
“counseled against the [Moorlach] strategy.”
(Orange
County Register, Orange
Punch Blog, September 20, 2007.) Why is this report, which was
apparently shared with Mr. Greenhut, being kept
from the public?
It
appears that the first two legal opinions did
not support the pension recession theory.
However, in August of 2007, the Board
commissioned yet a third law firm to
independently analyze the proposal.
Specifically, Supervisor Moorlach personally
requested that the analysis focus on
“constitutional issues.” The minutes of the
July 31, 2007 Board meeting read: “County Counsel to schedule a closed session on
August 7, 2007
to discuss use of independent legal counsel to
review constitutional issues.” Mr. Richard
Derevan of Snell & Wilmer LLP was engaged for
this constitutional analysis. However,
according to Mr. Moorlach and his Chief of
Staff, Mr. Mario Maneiro, Mr. Derevan’s analysis
was deficient because it “ignored many
constitutional issues.” (Orange County Register, September 18, 2007, OC
Pension Plan Won’t Prevail.) Query: Was Snell
& Wilmer LLP paid for their work despite failing
to do the required analysis?
It
appears that after not being satisfied with
three legal opinions that disagreed with the
proposed recession — the Orrick, Ashton or
Derevan analyses — the County on September 18, 2007 engaged Kirkland & Ellis LLP for a
fourth opinion and to pursue litigation. Dean
John C. Eastman shortly after the
July 31, 2007
hearing on the proposal counseled against just
this sort of shopping for legal support:
Q.
“One thing the Supervisors heard last week, the
Sheriff and especially the District Attorney
launched an independent review of the County’s
case in the next seven weeks. Do you think that
is a good idea?
A.
I think at some point it
becomes a wasteful idea. As I understand it,
this issue has been percolating around the halls
of the administration down there for a while and
you had the lawyer and Chief of Staff to John
Moorlach do a review. It has been vetted by the County Counsel’s office. They hired an outside
firm to give an independent review and that was
part of the presentation on Tuesday [July 31,
2007]. So now they are going to hire a law firm
to file the litigation, but hire yet another law
firm to give an independent review of that
litigation — which is litigating an independent
review that had already been given of the
assessment by the County Counsel, floated
initially by the lawyer, law professor
supervisor. At some point you can get overly
redundant. (OC Blog interview of John Eastman, August 6, 2007.)
No
doubt, Dean Eastman would agree, review by four
outside law firms and County Counsel is “overly redundant.”
Supervisor Moorlach was
correct in the Fall of 2000 when he told an
audience of the Orange County Citizens Against
Lawsuit Abuse “County agencies should become
more accountable to taxpayers for the lawsuits
they file.” He went on to say: “It seems to me
that every time you hire an attorney . . . the
only person that wins is the attorney.” (Orange
County
Register, November 1, 2000,
Interagency Suits Costly.) Unfortunately, the
taxpayers of Orange County have now hired four law firms to
pursue an action in the vain hope that activist
judges will create new law. This is exactly the
kind of government waste and abuse Supervisor
Moorlach warned about when he was County Treasurer in 2000.
Lastly, the public should
know what they have paid thus far in pursuit of
this erroneous theory that is simply and
unambiguously wrong on both its legal premise
and its factual basis. However, after two
requests to simply produce the checks or payment
documents to outside law firms analyzing this
issue, the County has failed to do so.
Rather than waste additional taxpayer funds, we
respectfully request that you follow the advice
of the firms you have hired; or, at the very
least, let the public see how much they have
spent so far on this proposal to rescind the
pensions agreed to in 2001. Certainly, the
public has a right to see the opinions that
describe the illegality of your proposal and how
much they will pay for any decision to test your
theory in the Courts.
Very truly yours,
Wayne J. Quint, Jr.
AOCDS President
