San Gabriel Police Association's Tort Claim

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Dieter C. Dammeier SBN 188759LACKIE, DAMME IER & McGILL APC367 North Second AvenueUpland, CA 91786Telephone: (909) 985-4003Facsimile: (909) 985-3299Eleanor K. Andrews, City ClerkCity of San GabrielSan Ga briel City Hall425 S. Mission DriveSan Gabriel, CA 91776Claims of SAN GABRIEL POLICE OFFICERS') TORT CLAIM DAMAGES ANDASSOCIATION; and MARIAN ALVAREZ and ) INJUNCTIVE RELIEFall similarly situated taxpayers,Govt. Code 910))Claimants,)

vs .)CITY OF SA N GA BRIEL, a municipality; CITY )COUNCIL OF THE CITY OF SAN GABRIEL; )STEVEN A. PRESTON, individually and in his )official capacity as the City Manager of the City )of San Gabriel ; JOHN JANOSIK, individually )and in his official capacity as the Treasurer of the )City of San Gabriel; and DOES 1 through 10,Inclusive,)Defendants. ))))TO THE CITY CLERK OF THE CITY OF SAN GAB RIEL:You are hereby notified that the SAN GAB RIEL POLICE O FFICERS' ASSOCIATION

and MAR IAN ALV AREZ claim damages and injunctive relief from the DEFENDA NTS asfollows:

1. Claimants desire all inquiries, notices and com munications be sent or directed toDieter C. Dammeier, Esq., LACK IE, DAMM EIER & M cGILL APC, 367 North Second Avenue,Upland, California, 91786, Telephone (909) 985-4003, Fac simile (909) 985-3299.

2. Claimant SAN GA BRIEL POLICE OFFICERS' ASSOC IATION ("SGPOA") isthe recognized exclusive bargaining representative for those employees of the City of San

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Gabriel with the job classification of Police Officer. The SGPO A can sue an d be sued in itsname.

3. Claimant MARIAN ALVAREZ and all similarly situated taxpayers brings thisclaim on beh alf of herself and all other similarly situated residents and taxpay ers of the City ofSan G abriel. She is a resident of the City of San G abriel, residing at 602 E. Ma in Street, SanGabriel, CA 91776, and is liable or has been liable within one year of the filing of this claim forthe payment of City taxes.

4. Defendant CITY O F SAN GAB RIEL ("City") is a duly constituted municipalcorporation operating under the law s of the State of California, wholly situated in the County ofLos Angeles.

5. Defendant CITY COU NCIL OF THE CITY OF SA N GAB RIEL ("CityCouncil"), the elected governing body of D efendant City, is responsible for establishing laws andpolicies in the conduct of C ity business.

6. Defendant STEVEN A . PRESTON, the appointed City Manager of D efendantCity, is responsible for the administration of all City departments, and serves as the City's chiefexecutive to the City Coun cil. Defenda nt Preston is named in both his official and individualcapacity.

7. Defendant JOHN JANOSIK, the elected City Treasurer of Defendant City, isresponsible for establishing and m aintaining the procedures and controls over C ity revenues andexpenditures. Defenda nt Janosik is named in b oth his official and individual capacity.

8. The true names and capacities of the Defendants named herein as D OES 1through 10, whether individual, government, corporate, associate, or otherwise, are unknow n toClaimants wh o therefore bring this claim against Defend ants by such fictitious names pursuant toCode of C ivil Procedure, 474 et. seq.

9. Defen dants DO ES 1 through 10, were a t all times alleged herein, officers orpublic bodies of defendant City and in some capacity we re responsible for the wrongful actsherein complained of. Claimants are informed and be lieve that the DO E individual Defendants

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herein are California residents and will amen d this claim to show their true name s and capacitiesonce they have been ascertained.

10. In 1948, the people of the City of San Gabriel voted upon and enacted O rdinanceNo. 540, authorizing the City to enter its employees into the "State Em ployees' RetirementSystem," and create a special tax to fund the obligations of this retiremen t system. (The "StateEmployees' Retirement System" is now known as the "Public Employees' Retirement System",or "PERS".)

11. Regarding the special tax, Ordinance No. 540 of 1948 authorized the C ity to:"...levy and collect annually...a special tax sufficient to raise theamou nt estimated...to be required to provide sufficient revenues tomeet the obligations of said City to said retirement system..."(See "Exhibit A" attached hereto. Empha sis added.)

12. Based on information and belief, since the adoption of this special tax, the Cityhas updated the tax by enacting annual rate-setting Resolutions.

13. According to doc uments obtained by Plaintiffs, every rate-setting Resolutionenacted for the pa st eleven years, from fiscal year 2000-20 01 through 2010-2011, specificallyreferences the purpose of the tax as the "C ity's indebtedness to Public Employees' Retiremen tSystem as set forth in Ordinance No. 540..." (See "Exhibit B" attached hereto.)

14. Since at least fiscal year 2000-2001, and m ost likely beginning before that year,the revenue from this special tax has been placed outside the City's general fund and into theCity's designated "Retirement Fund."

15. Despite this specified purpose for the revenues generated from this special tax,docume nts obtained by Plaintiffs show that the funds instead are being, and have been, divertedtowards and used for purposes other than the City's indebtedness to PERS .

16. Specifically, documents show that at least $5,714,280 from the C ity's RetirementFund has be en diverted to fund num erous benefits for City staff personnel, including deferredcomp ensation accounts and retiree medical accounts. (See Exhibit C attached hereto.)

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17. In addition, based on information and belief, interest received from the special taxrevenue w as diverted to the City's General Fund to assist in paying for City Staff com pensationincreases.

18. Based on information and belief, defendants JANOSIK and PRESTON personallyreceive these bene fits, and thus personally benefit from the diversions from the City RetirementFund.

19. It is entirely possible that more than $5,714,280 has been impe rmissibly divertedfrom the C ity's Retirement Fun d; the docum ents obtained by Plaintiffs only extend back to fiscalyear 2000-2001.

20. As a result of these diversions, the Retirement Fund ha s been depleted to a pointwhere its continued solvency is in jeopardy, and as such the C ity's responsibility to fund itsPERS obligations are crea ting a fiscal crisis endangering the w ell-being of the City as a wh ole.

21. In doing the things alleged herein, DEFE ND AN TS acted under color of state law,and within the course and scope of employm ent and official duties. In doing the things allegedherein, JANOS IK and PRE STON acted as official policy makers of the City of San Gab riel.JANOSIK and PRESTO N are Department Heads and O fficials of the City of San G abriel, vestedwith policymaking authority over actions such as the o nes at issue in this claim.

23. In doing the things alleged to have been d one, Defend ants unlawfully divertedspecial tax revenue from the C ity's Retirement Fu nd towards purp oses not specified inenactme nt of the special tax, in violation of California Government C ode 53724.

24. CCP 526a provides in relevant part that a "taxpayer's suit", "...to obtain ajudgment, restraining and preventing any illegal expenditure of...(the) funds...of a county, town,city...may be maintained against any o fficer thereof, or any agent, or other person, acting in itsbehalf, either by a c itizen resident therein, or by a corporation, who is assessed for an d is liableto pay, or, within one year before the com mence ment of the action, has paid, a tax therein."

25. Defenda nts diversion of funds from the specified purposes of the special tax isunlawful, as it is made in violation of Gov. C ode 53724 . Gov . Code 53724 provides inrelevant part that revenues from a special tax may be "used only for the purpose or service for

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which it was imposed, and for no other purpose whatsoever." (Emphasis added.) The taximposed pursua nt to Ordinance N o. 540 is a special tax, because it is a tax "levied to fund aspecific governmental project or program." R ider v. County of S an Diego, 1 Ca1.4 t h 1, 15 (1991).(A lso see Gov. Code 53721: "Special taxes are taxes imposed for specific purposes.")26 .laimants also claim damages individually from Defendants JANOSIK andPRES TON , in the form of reimbu rsement into the City's General Fund all unlawfully divertedmoney, as their unlawful acts herein described were do ne in an absence of "due ca re."Dated: January 3, 2012espectfully Submitted,L C E, DAM ER & McGILL APC

1 1 1 1.114,i1jA_Dieter C. DammeierAttorney for Claimants,SAN GABRIEL POLICEOFFICERS' ASSOCIATION, andMARIAN ALVAREZ

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PROOF O F SERVICEI declare that I am over the age of eighteen (18) an d not a party to this action. Mybusiness address is 367 North Second A ve., Upland, California 91786.On January 3, 2012, I served the following document described as TORT CLAIM

DAMAGES AND INJUNCTIVE RELIEF on the interested parties in this action byplacing a true and correct copy of each doc ument thereof, enclosed in a sealed envelopeaddressed as follows:Eleanor K. Andrews, City ClerkCity of San GabrielSan Gab riel City Hall425 S. Mission DriveSan Gabriel, CA 91776Facsimile: (626) 458-2830

[X ]am re adily familiar with the business practice for collection and processing ofcorrespondence fo r mailing with the United States Postal Service. I know that thecorrespondence w as deposited with the United States Postal Service on the sameday this declaration was executed in the ordinary course of business. I know thatthe envelope wa s sealed and, with postage thereon fully prepaid, placed forcollection and mailing on this date in the United States mail at Upland, C alifornia.By Pe rsonal Service, I caused such envelope to be delivered by hand to the aboveaddressee(s).(X ]y facsimile machine, I caused the above-referenced docum ent(s) to be transmitted

to the above-named persons(s)Executed on January 3, 2012, at Upland, Ca lifornia.By Ove rnight Courier, I caused the above referenced docum ent(s) to be deliveredTo an overnight courier (UPS) for delivery to the above addressee (s).

(State) I declare under pen alty of perjury under the laws of the S tate of Californiathat the above is true and correct.

PROOF OF SERVICE

ARUA Z


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LACKIE, DAMMEIER & MCGILL APC367 North Second AvenueUpland, CA 91786Telephone: 909-985-4003Fax: 909-985-3299

FAX COVER SHEETFACSIMILE NUMB ER TRA NSMITTED TO: (626) 458-2830To:leanor K. Andrew s, City ClerkCity of San GabrielFrom: Kimberly D. RileyDate:anuary 3, 2012Re:an Gabriel POA et al v. City of San GabrielDOCUMENTS NUMBEROF PAGES*TORT CLAIM DAMAGES AND INJUNCTIVE RELIEF 5

* NOT COUNTING COVER SHEET. IF YOU DO NOT RECEIVE ALL PAGES, PLEASE TELEPHONE USIMMEDIATELY AT 909-985-4003.

CONFIDENTIALITY NOTICEThe documents accompanying this facsimile transmission contain confidential informationbelonging to the sender w hich is legally privileged. The inform ation is intended only for t heuse of the individual or entity nam ed abov e. If you are not the intended r ecipient, you arehereby notified t hat any d isclosure, copy ing, distr ibution or the t aking of any action inreliance on the contents of this facsim ile inform ation is strictly pr ohibited. If you havereceived this facsimile in error , please imm ediately notify the sender by telephone to arrangefor the r eturn of the original documents.


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TRANSMISSION VERIFICATION REPORTTIME : 01/03/2012 09:59NAME : LACKIEDAMMEIERMCGILLFAX9099853299TEL9099854003SER.# : 000C1N784183

DATE,TIME1/03 09:57FAX NO./NAME6264582830DURATION0:02:10PAGE(S)7RESULTKMODETANDARDECMLACKIE, DAMM EIER & MCGILL APC367 North Second AvenueUpland, CA 91786Telephone: 909-985-4003Fax: 909-985-3299

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FAX COVER SHEETFACSIMILE NUMB ER TRA NSMITTED TO : (626) 458-2830To:leanor K. Andrews, City ClerkCity of San GabrielFrom: Kimberly D. RileyDate:anuary 3, 2012Ran G abriel FDA et al v . City of San Gabr ielDOCUMENTS NUMBEROF PAGES*

San Gabriel Police Association's Tort Claim

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