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The top retirement system official today requested City Attorney Jan Goldsmith withdraw his legal memo opining that a controversial deferred retirement program was never properly implemented, saying the legal research conducted by Goldsmith’s office was “demonstrably incomplete.”

In a scathing letter, San Diego City Employees’ Retirement System Administrator and CEO David Wescoe noted that Goldsmith’s memo didn’t address a 1996 memo from former City Attorney John Witt’s office that reached the opposite conclusion of Goldsmith.

City Attorney Witt’s analysis is directly contrary to your surprising interpretation of Charter section 143.1, yet its existence is not even acknowledged in the Memorandum, nor is its legal research and analysis addressed therein.

That alone, Wescoe writes, should lead Goldsmith to withdraw the memo until his office “reconciles its current conclusions with the long-standing analysis of your predecessors.”

Wescoe’s letter says it’s “disturbing” that Goldsmith’s memo misquotes an analysis in a way that favors the conclusion reached by the memo.

It also faults the lack of case law to support the conclusion that the city charter provision saying changes to retirement benefits require “the approval of a majority vote of the members of said system” means the majority of eligible voters — not just a majority of actual voters — must sign off on change.

Conspicuously absent from the Memorandum is citation to any case from any jurisdiction supporting your new interpretation of the phrase “majority vote of the members.”

Despite Goldsmith’s protestations that his opinion is limited in scope, Wescoe writes that Goldsmith’s office has “in fact acted precipitously by publishing a legal analysis that has failed to address, or analyze, relevant legal principles bearing on the issue.”

Wescoe says SDCERS officials have only had a short time to analyze the memo:

Nonetheless, it appears significant questions exist regarding the sufficiency of the legal research and analysis upon which you have reversed decades of pension system administration. Given the extremely serious consequences that will result from unilaterally invalidating the DROP ordinance, particularly on the basis of such demonstrably incomplete legal research and analysis, SDCERS urges the City Attorney to withdraw the Memorandum unless and until sufficient legal research analysis is performed on the issues addressed in this letter, as well as any additional issues which may come to light once SDCERS has had sufficient time to fully analyze the Memorandum.


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