HomeMy WebLinkAboutLetter from City Attorney to Mark Rosen re Deborah GavelloIVA WOODRUFF, SPRADLIN & SMART
A P r o t e c s f o n a I C o r p o r a t I o n
DOUGLAS C. HOLLAND
DIRECT DIAL: (714) 415-1042
DIRECT FAX: (714) 415-1142
E-MAIL: DHOLLANDQWSS-LAW.COM
November 16, 2010
VIA FIRST CLASS MAIL
Mark Rosen
Civic Center Plaza Towers
600 W. Santa Ana Boulevard
Suite 814
Santa Ana, CA 92701
Re: Councilwoman Gavello
Dear Mr. Rosen:
The City Council considered your request on behalf of Councilwoman Gavello to
reconsider its actions modifying councilmember compensation and to formally adopt
councilmember health benefits at the Council meeting of November 3, 2010. The City Council
considered your request to be a claim and the Council voted to deny the claim.
In previous correspondence you indicated that you thought that certain of my arguments
were "political" rather than legal. I would suggest that my argument regarding the context of the
revisions and the need to adopt a lawful health plan was intended to respond to what you
described as "grandstanding" before an election "or reducing compensation to single out a sole
councilmember for retribution." The Council unanimously approved the changes; there were
very valid reasons for doing so (even if some of those reasons may be "political'). In
emphasizing these considerations, I was trying to make it clear that these ordinances were not
advanced for the purpose of singling out and punishing any one member of the Council but to
make modifications and adopt a program consistent with the sacrifices that city employees were
required to endure. I would also point out that these modifications affect all members of the City
Council and that the adopted health care plan has the same effect on Councilmember Nielsen as
Councilmember Gavello. The adopted health plan is also consistent with the plans that are
provided to city employees.
I pointed out to you in my email of November 2, 2010 council benefits are required to be
part of a plan that is provided for "large numbers of employees" [Govt. Code Section 53202.3].
The plan that Councilwoman Gavello is currently enrolled in is the PERS Care plan. Although
employees may subscribe to this plan, they are required to pay the difference between the
amount allowed under their respective cafeteria plans and the cost for the PERS Care premium.
I am not aware of a single employee of the City whose entire premium cost of the PERS Care
Plan is paid by the City. Thus, the PERS Care plan, involving 100% of the premium paid by the
City, is not a plan for large numbers of employees as required under the law. The plan as
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Mark Rosen
November 16, 2010
Page 2
established by the Council in July of this year is consistent with Section 53202.3 since it
provides the Council members with choices that are similar to those provided to Department
Heads; namely, the ability to enroll in the PERS Choice Plan, at no cost to the member, or to
enroll in the PERS Care Plan and pay the difference out of the member's pocket between the cost
of PERS Choice and PERS Care.
I also call to your attention the provisions of Government Code Section 53208.5(b),
adopted in 1994 and applicable any member of the City Council whose service first commences
on or after January 1, 1995:
"[T]he [health and welfare] benefits of members of the legislative body shall not be
greater than the most generous schedule of benefits being received by any category of
nonsafety employees."
As I outlined above, the relief you are seeking regarding health benefits is clearly in violation of
this provision of state law.
Very truly yours,
WOODRUFF, SPRADLIN & SMART
A Profess' orporation
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DOUG AS C. HOLLAND
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