It doesn’t look like City Attorney Jan Goldsmith will be withdrawing his legal memo stating that the deferred retirement program was never properly put into place, as the pension system’s administrator requested after calling the city attorney’s legal analysis incomplete.

Instead, Goldsmith said he’ll wait for Superior Court Judge David Oberholtzer to rule in a case between the city and the police union, which is seeking a court order preventing the implementation of changes to the Deferred Retirement Option Plan.

“We’re not going to go back and forth (with the retirement system),” Goldsmith said. “We’re not going to make the decision and whatever way it falls, it’s fine.”

Goldsmith said the San Diego City Employees’ Retirement System — not the city attorney — has the final say in the matter, subject to the court’s determination. He said the city doesn’t have a legal right to contest the retirement system’s decision if it disagrees.

But Goldsmith did say the 1996 opinion of former City Attorney John Witt mentioned in the SDCERS letter doesn’t concern the same city charter provision that was considered in his legal memo. Rather, Witt’s memo analyzed a section of the Supplemental Pension Savings Plan documents.

The two sections appear to have similar but not identical language on the majority vote provision. The city charter says a change to retirement benefits requires the approval of a “majority vote of the members of said system.” The SPSP documents call for a “majority vote of all active participants,” according to Witt’s memo, which focused on courts’ interpretations of the term “majority vote.”

The pension system’s administrator, David Wescoe, had faulted Goldsmith’s failure to address the Witt memo in his analysis released Tuesday. Goldsmith said he believes his attorneys had the memo but didn’t use it because they thought the issue was clear.

Goldsmith pointed me to a different document — a two-paragraph report by Witt’s office that accompanied a City Council vote on an early retirement program. In it, Witt states that the ordinance takes effect “if and only if, the majority of active members of the Retirement System approve” the program.

It’s not a full legal analysis like the 1996 memo but Goldsmith said it’s an “opinion directly on point” because it concerns the charter, not the SPSP plan documents.


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