Most people who lived here in 2009 remember the local and national (Wall Street Journal) newspaper articles about MOFD Chief Pete Nowicki’s $241 annual pension coming from a $173,000 annual salary after working for the District for an equivalent of 28 years (three years as Chief). Based on the pension rules of accruing three percent of final salary per year of employment, Chief Nowicki’s pension should have been about $147,000. It was never fully explained how and it ballooned to $241,000. At the time it was blamed on lax pension rules which Nowicki took advantage of and the MOFD Board’s “excuse” for allowing this to happen was that Nowicki understood the pension rules better than they did. Should they be excused or should the community take action?
But now, six years later, the County pension board (CCCERA) has rescinded 25 percent of those benefits, still leaving Nowicki with $180,000 per year. In addition, in an 11 page report to the board, CCCERA’s legal advisory firm has indicated that there may have been laws broken by both Nowicki and the MOFD to get him his $241,000 pension. Is anyone going to look into these allegations?
The facts of the “case” appear to be the following: In his last 12 months of employment, ending January 30, 2009, Chief Nowicki took home $284,000 in total pay (85 percent of which is $241,000). This $111,000 increase over his $173,000 salary at the start of 2008 was not self-granted but came from a series of retroactive contract revisions agreed to by the MOFD Board of Directors. Nowicki instigated the revisions but it was the Directors who granted them. And after paying Nowicki that $284,000, and after he retired at $20,000 per month, they then paid him an additional $15,000 per month “consultant” fees as “acting” chief until a permanent chief was hired at the end of 2009. (Note: When Chief Bradley retired in 2013, one of the existing Battalion Chiefs, Stephen Healy, was appointed acting chief at his Battalion Chief’s salary until he was appointed Chief several months later.)
The question for the community at this point is “were there improprieties, who committed them, and what can or should the community do about them?”
Legally, the CCCERA report claims that Nowicki acted beyond the law in his own self-interest which could lead to civil and criminal penalties. As for the MOFD Board, the CCCERA report claims that the agreements with Nowicki were agreed to, for the most part, “behind closed doors” in violation of California’s open meeting laws, the Brown Act.
What was not focused on by CCCERA, but should a major concern of the community, was that the Board gave a public employee what amounted to a $110,000 retirement bonus, which was not in his contract, and which resulted in a $94,000 pension increase which would add up to millions of dollars of pension expenses over Nowicki’s 30-40-50 year remaining life span. $33,000 of that pension benefit remains in place, even after CCCERA's latest action, and it alone will add up to well over $1 million over Mr. Nowicki’s lifetime. These sums, which most consider inappropriate, were granted in 2008 when the stock market (and the value of MOFD’s pension assets) were plummeting and the value of real estate, which MOFD’s major source of income, property taxes, is based on was also declining. Not the best time to be handing out multi-million dollar bonuses.
When it was finally revealed that the source of Nowicki’s windfall was retroactive changes to his contract by the board, most board members claimed ignorance that the pension plan treated one-time salary payments as part of the pension calculation (accepting ignorance over willfully handing over vast sums to a favored employee). However, at that time Board Member Pete Wilson told the press that the board members deliberately made the changes to help Nowicki increase his pension and that the chief had presented them with calculations documenting the effect. Even if that was not the case, and it is hard to believe it was not, this does not exempt the board members, especially tax attorney and board-president-at-the-time Fred Weil, from understanding how the pension plan worked.
So what can the community do? We could request that the District Attorney investigate the charges against Nowicki which might give us some psychic satisfaction. We could also ask someone to investigate the possible Brown Act violations against the MOFD Board, however, the only member of that board still in office, Fred Weil (an attorney and president of the board at the time), claims that CCCERA has it wrong about Brown Act violations. A brief review of Brown Act violation prosecutions show that no prosecution has ever been successful in obtaining a guilty verdict. For the community to spend its time and effort in possibly setting a precedence has questionable merit.
In an attempt to put this ugly episode finally behind us would suggest that we let CCCERA and whatever court is responsible deal with Mr. Nowicki. As for the 2008 Board, they (John Wyro, Pete Wilson, Frank Sperling and Gene Gottfried) have all retired with the exception of Mr. Weil and they have to live with what they did. The current Board can do little to reprimand Mr. Weil as he was elected by the people. They could vote to censure him but that would not do much more than slap him on the wrist and cause a distraction within the Board. It would be nice to hear individual Board members stand up and say what they really think but that is probably too much to ask for. As for the community, it could petition for a recall election. This would take time, well into 2016, and if the recall petition received sufficient signatures, the election would cost MOFD money. Seeing as Mr. Weil’s term of office ends in November 2016, a recall effort would hardly seem worth the effort and expense.
So is the community to do nothing? A final suggestion would be for Mr. Weil to take his own action and remove himself from the Board so as to allow the Board and the community to move on without distractions. This action would not be precedent setting. Seven of MOFD’s eleven former board members resigned mid-term for various reasons. People could take it as an act of contrition or as a selfless act of letting the MOFD move forward after spending 12 years of serving the community. There is currently a petition on the web site www.thepetitionsite.com/975/654/937/ asking Mr. Weil to do just that, allowing the MOFD Board to direct all of its focus on delivering the maximum emergency services to the community with the funds available. The community needs to reflect on its role of governing itself and sending appropriate messages to its elected officials.