Wilmot v. Contra Costa Cnty. Employees' Ret. Ass'n

240 Cal. Rptr. 3d 835, 29 Cal. App. 5th 846
CourtCalifornia Court of Appeal, 5th District
DecidedNovember 1, 2018
DocketA152100
StatusPublished
Cited by1 cases

This text of 240 Cal. Rptr. 3d 835 (Wilmot v. Contra Costa Cnty. Employees' Ret. Ass'n) is published on Counsel Stack Legal Research, covering California Court of Appeal, 5th District primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wilmot v. Contra Costa Cnty. Employees' Ret. Ass'n, 240 Cal. Rptr. 3d 835, 29 Cal. App. 5th 846 (Cal. Ct. App. 2018).

Opinion

Richman, Acting P.J.

*836*849A long-time county employee decided to retire, and in December 2012, he submitted his application for retirement to the county's retirement authority. On January 1, 2013, the California Public Employees' Pension Reform Act of 2013 (Pension Reform Act or PEPRA) took effect. Included in that measure is a provision that mandates the complete or partial forfeiture of pension benefits/payments if a public employee is convicted of "any felony under state or federal law for conduct arising out of or in the performance of his or her official duties." ( Gov. Code,1 § 7522.72, subd. (b)(1).) In February 2013, the employee was indicted for stealing from the county for more than a decade. In April 2013, the county pension authority approved the employee's retirement application, fixing the employee's actual retirement on the day he submitted that application in December 2012. Also in April 2013, the employee began receiving monthly pension checks starting from December 2012. In December 2015, the employee pled guilty to embezzling county funds for a 12-year period ending in December 2012. Thereafter, the county pension authority reduced the employee's monthly check in accordance with the forfeiture provision.

Among the questions presented are whether applying the forfeiture provision applies to the employee at all, and whether reduction of his pension benefits amounts to an unconstitutional impairment of his employment contract with the county, or also constitutes imposition of an ex post facto law. We conclude the provision does apply to the former employee. Because we decide this as a matter of statutory construction, there is no need to consider the possibility of a constitutional violation for someone in a different situation.

BACKGROUND

The salient facts are without dispute.

Plaintiff Jon Wilmot commenced employment with the Contra Costa County Fire Protection District in 1985. By 2012, he had risen to the rank of captain. During this period, he was a member of the retirement program *850established by Contra Costa County in accordance with the County Employees Retirement Law of 1937 (CERL) (Stats. 1937, ch. 677, codified in 1947, § 31450 et seq.), which is administered by the Board of Retirement of the Contra Costa County Employees' Retirement Association. The association and its governing board will hereafter be designated as CCERA.

By the end of 2012, Wilmot had decided to retire. His final day on the job was December 12, and he submitted his "application for a service retirement" (§§ 31663.25-31663.26) to CCERA the following day.

On January 1, 2013, the Pension Reform Act became effective, thus adding section 7522.72. The relevant language is subdivisions (b)(1) and (c)(1), which originally provided in pertinent part:

"(b)(1) If a public employee is convicted by a state or federal trial court of any felony under state or federal law for conduct arising out of or in the performance *837of his or her official duties, in pursuit of the office or appointment, or in connection with obtaining salary, disability retirement, service retirement, or other benefits, he or she shall forfeit all accrued rights and benefits in any public retirement system in which he or she is a member to the extent provided in subdivision (c) and shall not accrue further benefits in that public retirement system, effective on the date of the conviction. [¶] ... [¶]

"(c)(1) A public employee shall forfeit all the retirement benefits earned or accrued from the earliest date of the commission of any felony described in subdivision (b) to the forfeiture date, inclusive. The retirement benefits shall remain forfeited notwithstanding any reduction in sentence or expungement of the conviction following the date of the public employee's conviction. Retirement benefits attributable to service performed prior to the date of the first commission of the felony for which the public employee was convicted shall not be forfeited as a result of this section." (Stats. 2012, ch. 296, § 15.2 )

On March 19, 2013, CCERA received Wilmot's "Choice of Retirement Allowance." The following month CCERA sent him his first monthly pension check for $8,758.46. In April 2013, CCERA formally approved Wilmot's retirement application, fixing his date of retirement as December 13, 2012.

But Nemesis was already on her way.

At some point not established by the record, authorities learned that Wilmot had, for a considerable part of his tenure, been stealing property and *851equipment from the Contra Costa County Fire Protection District.3 In February 2013, the District Attorney filed four felony charges. In December 2015, Wilmot entered a plea of no contest to a single charge that was alleged in the information as follows:

"The District Attorney of the County of Contra Costa hereby further accuses JON WILMOT, Defendant, of the crime of felony, a violation of PENAL CODE SECTION 503/508 (EMBEZZLEMENT BY CLERK, AGENT, OR SERVANT), committed as follows: [¶] On or about January 1, 2000 through December 31, 2012, at Alamo, Orinda and Concord, in Contra Costa County, the Defendant, JON WILMOT, did willfully, unlawfully and fraudulently appropriate property from Contra Costa Fire Protection District."

Upon learning of Wilmot's conviction, CCERA advised him: "In accordance with the ... Pension Reform Act ..., [CCERA] is required to make adjustments to your member account." Wilmot was informed that, by reason of his conviction, " Section 7522.72 therefore requires that you forfeit all [CCERA] rights and benefits accrued from January 1, 2000, the date of the first commission of the felony." The specified consequences were: (1) "Service credit from January 1, 2000 through December 13, 2012, totaling 13 years and 0 months, has been expunged"; (2) $249,937.64 of plaintiff's total "employee contributions" of $288,857.74 would be refunded; and (3) these changes to his "Final Average Compensation Adjustment" would *838reduce plaintiff's monthly check from $8,758.61 to $2,858.56.

These changes were adopted in August 2016, following a contested public hearing. Wilmot was advised by letter that "the [CCERA] Board of Retirement" "determined pursuant to ... Section 7522.72 to adjust your retirement allowance effective September 1, 2016."4

The next month Wilmot commenced this action with a petition for a writ of traditional mandate and declaratory relief. The basis of Wilmot's position-in the trial and on appeal-was succinctly stated in his petition: "Respondents' application of the felony forfeiture provision appearing in ... section 7522.72 to Petitioner is improper because the statute does not apply retroactively to persons such as Petitioner who retired prior to its effective date. Moreover, *852even if ...

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240 Cal. Rptr. 3d 835, 29 Cal. App. 5th 846, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilmot-v-contra-costa-cnty-employees-ret-assn-calctapp5d-2018.