Ryan Hagen, Staff
Writer - San Bernardino County Sun
Posted:
12/21/2012 12:08:19 PM PST
RIVERSIDE - San Bernardino scored a victory in bankruptcy
court Friday, as Judge Meredith Jury refused a motion by
CalPERS that would have allowed the pension giant to sue in
state court for millions of dollars in payments the city has
stopped making.
She said she was inclined to think at least $13 million in
payments the city plans to defer until July 2013 are legally
required, but the harm to the city would be overwhelming.
"One of the immediate effects of that would be that the
employees would not be paid, and that, to me, is a death knell
for the city of San Bernardino, and an immediate one," she
said at a hearing in U.S. Bankruptcy Court in Riverside.
There likely would be eventual harm to CalPERS if the
payments weren't made, she said, but based on evidence
available so far she said she believed the city's claims that
it didn't have the money to maintain essential services and
stay current in its CalPERS payments.
"I don't think there's really anyone in the room who thinks
the city isn't broke," she said.
CalPERS' lawyers argued against that point, saying they
suspect the city has assets and money in places such as the
water fund.
"We support the city's efforts to try to restore financial
stability," said attorney Michael Gearin. ...I'm not sure it is all that devastating."
Jury sided with the city in refusing to lift the stay that
prevents people from suing the city during bankruptcy in most
circumstances, but left CalPERS the option to later argue the
stay should be lifted for other reasons.
And CalPERS reserved the right to go directly to a state
court to argue it deserved to be paid despite the stay, a
strategy Jury said would violate precedent set by the 9th
Circuit Court of Appeals.
"I will be highly disappointed if you go to a state court,"
she said.
CalPERS would follow the law, but it wanted to check its
options before committing, Gearin said.
"We're not trying to make an end-run around your court, but
I do have to make a reservation of the state of California's
rights to go to another court," he said.
It wasn't all good news for the city, though.
For one thing, Jury said she thought San Bernardino did
have a legal obligation - rather than just a contractual one
as it has with other creditors - to pay back CalPERS, although
she didn't formally rule on that.
That would need to be done soon to come up with a genuinely
balanced budget, which would be required to exit bankruptcy,
she said.
And in the city's legal fight to prove it is eligible for
bankruptcy protection, Jury initially said she was leaning
toward not allowing formal discovery - the requirement for the
city to produce documents and interviews requested by
creditors.
That appeared to be too much of a burden on the city and
its understaffed Finance Department when the relevant facts
are already known, Jury said early in the four and a half hour
hearing.
CalPERS then listed some of the information it wanted but
hadn't gotten from the city - highlights from a court document
listing 53 requests it made, of which it said 11 were
fulfilled - and how it thought some of that information would
show the city had filed in bad faith or didn't have a desire
to adjust its debts, both requirements for bankruptcy
protection.
"I do believe they're trying," said CalPERS attorney
Michael Lubic. "I think the city has made the business
decision not to give its Finance Department adequate
staffing."
After considering that testimony, Jury said she wanted to
allow about 60 days of discovery, looking at information from
about the last year.
Attorneys for the city and its creditors then met privately
and said they hadn't agreed about what should be allowed, but
would meet again later and come to court Jan. 22 to discuss
the scope of discovery.
Many community members attended the hearing along with most
of the City Council and other elected city officials, who said
Friday was a significant victory.
"The ruling was quite important, keeping this before the
eyes of one judge," said Mayor Pat Morris.
The city will hire five or six experts in finance and
reorganization to help it prepare the required documents, a
plan set it motion before Friday's hearing, according to City
Attorney James F. Penman.
All three City Council members on the city's restructuring
committee had expressed support for the idea, which will go
before the full council for approval in January, Penman said.