An alert reader sent me a link to a CalPERS press release, dated March 14, before the one we rebutted in the post CalPERS Tries Ineffective Mudslinging in Response to Our Ongoing Private Equity Investigation This earlier press release was not as consequential, so we decided to wait till the weekend to address it.
This press release, Naked Capitalism Gets it Wrong and Should Choose Words Wisely, is in response to our post, Has CalPERS’ General Counsel Lied to Its Board About Our Suit? This is the critical section of that post:
As readers may recall, we filed suit against CalPERS on February 27, 2014 to obtain access to private equity fund data that CalPERS previously gave to two academics at Oxford University. We have proof of service as of March 4, 2014 (please find both filings embedded later in this post). At around that time, CalPERS moved the matter over internally from being handled by its Office of Stakeholder Relations, which includes Public Records Act specialists, to a litigator.
You’d think that’s pretty conclusive evidence that CalPERS knows we’ve sued them.
CalPERS’ Interim General Counsel, Gina Ratto, is telling CalPERS board members the exact opposite, that there was no new litigation filed in the past month. That statement is made at the location in the agenda materials where the CalPERS General Counsel reports to the board on new lawsuits to which CalPERS is a party (you can also view this document on the CalPERS website).
It’s worth noting that the intended audience for this press release was likely to be CalPERS board, and not the general public. We had sent letters to board members on February 28 outlining multiple procedural irregularities in the handling of our Public Records Act request (California’s version of FOIA) that should concern them. But it was presumably also intended for me, since the headline’s “Should Chose Its Words Wisely” is a not-too-thinly veiled threat of litigation.
The press release claims that they received service on my suit too late to have included it in the mailing to the board for its meeting March 19. CalPERS was served on March 4. A CalPERS employee has told us that it is likely that they did not mail the materials to the board until March 7, so our belief that CalPERS could have informed its board in writing but chose not to is thus credible.
Perhaps more important, publishing the litigation, although formally a mechanism for informing the board, is also a way to inform the public. As we have previously reported, CalPERS also failed to include the underlying PRA request in its monthly updates to the board until they had deemed it to be closed, at the end of January, again neglecting to observe the procedures set in place to keep the board and the public informed.
In addition, even if CalPERS was somehow unable to organize including information about our pending lawsuit in its mailing to the board and corresponding internet materials, why did the interim general counsel Gina Ratto not orally update the board at the meeting on March 19, since they knew about our suit by then? After all, the press release is dated March 14. If you look at the video of the open board session, you will see Ms. Ratto does not update the board, as would be expected.
The press release states that the board had been informed about the litigation. Since the board did not meet between the time we served them and the date of the press release, they must have sent the board a memo about your lawsuit. That would seem to suggest that CalPERS staff was concerned about our action. Yet the CalPERS beneficiaries was not informed via the usual channels for transmitting this information, the general counsel’s monthly update and the open board meeting. The press release, while mentioning our lawsuit, fails to mention the content of our action and hence is not useful for parties that are not already up to speed on the dispute.
Finally, readers will should take a look at the last two paragraphs. The press release goes to some length to present me as a fringe party and unbalanced (“obsessed” and “self important,” among other derogations). Apparently, CalPERS staff is keen to discourage members of its board from looking into my side of the story.