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
Isabel.safie@bbklaw.com
April 6, 2015
VIA E-MAIL TO PLLAMAS@OAKLANDCITYATTORNEY.ORG
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