I am not a crook. These words were spoken by President Nixon in November of 1973 during the Watergate scandal. In a telecast to the nation, he tried to assure the American public, and the 400 Associated Press managing editors lobbing questions at him, that he had never profited from his position in public office.
You will note my opening sentence is not in quotes. I am borrowing these words from Nixon and adopting them as my own. I would have much preferred something like "Four score and…" or "We have nothing to fear but…" or "Ask not what you can do for your country…." But these elevated quotes do not fit my predicament.
Before I explain, let me tell you the good news. All of us in the legal profession who are older than 50 are not senile after all. I have it on good authority that the State Bar does not think so. My column last month scored the State Bar for suggesting that senior lawyers need to be aware of signs of mental impairment. My column generated dozens of responses from senior lawyers all over the state. But we can call off the protest march and throw away the placards. Pat Kelly, the State Bar president, who I have known for years, and who is older than 50, called me and explained it was all a mistake.
In an e-mail, Kelly wrote that he "started the Senior Lawyers Working Group to explore ways to help Senior lawyers." Apparently some young upstart, a witness at the board meeting, suggested "cognitive testing at some age." No one on the board accepted this recommendation. And medical experts did not recommend that any test be done at any age. Kelly wrote, "Thus at this point there is no board proposal to undertake testing at 50 or any other age." Whew, what a relief! I am wary, however, of the words "at this point." But for the time being, I will stay calm.
Pat and I recently relived our youth when we performed together before a live audience. He once played guitar with the Beach Boys. Pat, along with the Big Band of Barristers conducted by Gary Greene, and me accompanying, or should I say pounding on the piano keys ala Jerry Lee Lewis, performed a Beach Boys medley arranged by Jerry Ranger. Luckily, the audience's thunderous response saved us from compelled confinement for psychological observation.
Ironically, the previous column I wrote highlighted my own cognitive disability. Retired Judge Arnold Gold called me and, with tongue in cheek, said he caught the mistake I had deliberately slipped into the column to test my readers' intelligence. With a rhetorical flourish, I said that I was "10 and 5 years older than 50…." Judge Gold immediately caught the error. My math was off by 10 years. But not to worry. Judge Gold is older than I. This proves that age enhances wisdom.
One of our country's premier judges, and the oldest sitting judge in the nation, Federal Judge Ruggero J. Aldisert, Chief Judge Emeritus and Senior U.S. Circuit Judge of the Court of Appeals, Third Circuit, is 93, still hears cases, and still publishes. And he is as brilliant as ever. The third edition of his masterful work Opinion Writing was published by Carolina Academic Press last year.
But back to why I am not a crook. It appears that CalPERS, the California Public Employees' Retirement System, believes that I and the thousands of other state employees and our dependents who are in the CalPERS retirement and health insurance program just might be crooks. They want assurance that our dependents who are on the plan are legitimate subscribers. Nothing wrong with assuring that the plan's costs are kept in check. But CalPERS has gone about its task of oversight by requiring its members to prove their dependents are legitimate. In the case of a spouse who is a dependent, CalPERS requires a copy of the marriage certificate, and a copy of the front page of your 2012 tax return or a recurring bill no older than 60 days that lists your spouse's name, as well as your own name. And if a member fails to meet these requirements by September 15th, their dependent will be dropped from coverage. It does not matter that the "dropped" dependent is perfectly legitimate and that all premiums have been paid for that dependent to be on the plan. And the cost of obtaining the material required is a burden to be borne of course by the employee.
In its zeal to save money, CalPERS has spent money, our money, to hire HMS Employer Solutions, "an independent third-party," to ferret out the scofflaws who are wrongfully listing non-eligible dependents. CalPERS informs us that HMS "specializes in verifying health plan eligibility and has reviewed verification documentation for hundreds of thousands of dependents for some of the largest employers in the United States." I wonder who are those large employers.
So how much is CalPERS paying HMS? And will the money CalPERS claims it will save by ridding itself of illegal dependents be more than what it is paying HMS? Or is this a contingency deal in which HMS makes its bucks by the more dependents it cuts off? And do the geniuses at CalPERS who dreamed up this scheme actually believe that they will win the lawsuit just itching to be filed? Think it likely that a legally proper dependent may be denied benefits because the employee failed on September 15th to prove to HMS's satisfaction that the dependent is legitimate? And if the dependent is denied urgently needed medical treatment for which the spouse has paid all necessary premiums to be on the medical plan…. Oh, I shudder to think of the result. Darn. It just occurred to me‑if I were assigned to hear such a case, I wouldn't put it past CalPERS or HMS to move to recuse me.
Needless to say, I am frustrated and need an outlet. Think I will write a concurring opinion.