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City Attorney To Defend Action Challenging Decade-Old Pension Decisions

Posted on August 1, 2017


The City of San Rafael has been served with a civil lawsuit that challenges City Council decisions made more than 10 years ago concerning City employee pensions.  The complaint, filed by David Brown, concerns the City’s adoption of increased employee pension formulas in 2002-2006.  The City later adopted reduced pension formulas for employees hired after 2009.  The Marin County Court recently rejected a similar lawsuit that Brown filed against the Southern Marin Fire District based on the statute of limitations.

The City Charter provides that the City Attorney has a duty to advise the City regarding “all legal matters pertaining to the City,” and to attend to “all suits and proceedings in which the City may be legally interested.”  Nevertheless, Mr. Brown has contended that the City Attorney should not defend the City in the Brown action, because the personnel in the City Attorney’s office are members of the City pension system.  According to Mr. Brown, this fact disqualifies the City Attorney from representing the City in the action.  City Attorney Rob Epstein has determined that Mr. Brown’s contention is incorrect.  There is no legal or ethical reason that prevents the City Attorney from defending the City in the Brown lawsuit.  Mr. Epstein has confirmed his conclusion with an opinion obtained from an outside attorney who specializes in legal ethics.

Although Mr. Brown contends that the City should hire independent outside counsel, his lawsuit is primarily devoted to his attacks on the opinions provided by independent outside counsel whom the City previously hired to assist in its response to a Grand Jury report on the same pension-related subjects.

The City is committed to public transparency with regard to all aspects of the employee pension system.  To assist the City Attorney in defending the Brown lawsuit, the City will associate independent outside counsel to review all pleadings and arguments presented by the City, and to attend closed sessions and advise the City Council on an as needed basis.  Even though it is neither legally nor ethically required, the participation of independent counsel alongside the City Attorney will ensure continued public transparency throughout the defense of the case.

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