Nowicki v. Contra Costa Cnty. Employees' Ret. Ass'n
| Decision Date | 10 August 2021 |
| Docket Number | A160337 |
| Citation | 282 Cal.Rptr.3d 500,67 Cal.App.5th 736 |
| Parties | Peter J. NOWICKI, Plaintiff and Appellant, v. CONTRA COSTA COUNTY EMPLOYEES’ RETIREMENT ASSOCIATION, Defendant and Respondent. |
| Court | California Court of Appeals Court of Appeals |
Messing Adam & Jasmine, Steven Kaiser, for Appellant.
Reed Smith, San Diego, Harvey L. Leiderman, Maytak Chin, San Francisco, for Respondent.
Plaintiff Peter J. Nowicki appeals from the trial court's judgment in favor of defendant Contra Costa County Employees’ Retirement Association (CCCERA) following the denial of Nowicki's fourth amended petition for writ of mandate (petition), filed pursuant to Code of Civil Procedure section 1085. Nowicki had alleged in his petition that CCCERA and its governing Board of Retirement (Board) improperly reduced his retirement benefits retroactively, pursuant to Government Code section 31539.1 On appeal, he contends the trial court (1) utilized an incorrect and overly deferential standard of review; (2) ignored significant procedural errors by the Board that violated his due process rights; and (3) ignored various problems with the Board's decision, including permitting it to misconstrue and misuse the Brown Act ( Gov. Code, § 54950 et seq. ). Because we conclude the Board's decision to reduce Nowicki's retirement allowance was an abuse of discretion, we shall reverse the judgment.
Nowicki was employed with the Moraga-Orinda Fire District (Fire District) from 1983 until 2009. He began as a paramedic-firefighter and ultimately became fire chief on July 10, 2006. The initial contract between Nowicki and the Fire District, which was not negotiable, was for a four-year term, with an annual salary of $173,000. Under the terms of the contract, he was eligible for an annual salary adjustment as determined by the Fire District's board, following a performance evaluation.
On February 6, 2008, Nowicki and the Fire District entered into a first amendment to Nowicki's employment contract, which was retroactive to July 10, 2007, when the parties had "entered into dialogue" about the amendments. The first amendment both increased Nowicki's annual salary from $173,000.00 to $186,218.84, and allowed a one-time "vacation sell-back" of 200 hours of accrued vacation time.
On February 8, 2008, Nowicki sold back 200 hours of previously accrued vacation time.
On November 25, 2008, Nowicki informed a CCCERA employee of upcoming final changes to his contract, which were to be approved by the Fire District's board on December 10, and of his intention to retire on January 30, 2009.
On December 10, 2008, Nowicki and the Fire District entered into a second amendment to his employment contract, which added eight hours to the 20 hours of vacation credit he had accrued monthly in the original contract. It also credited him with 80 hours of annual administrative leave, effective July 1 of each year, which could be converted to vacation leave. Finally, it gave him the right to accrue and sell back unused holidays, retroactive to January 1, 2008. All of the other changes were retroactively effective on July 1, 2008. The second amendment also permitted Nowicki to sell back up to 260 hours of accrued vacation leave annually.
Three days later, on December 13, 2008, Nowicki sent an email informing all Fire District personnel of his intent to retire, effective January 30, 2009.
On December 31, 2008, Nowicki sold back 60 hours of vacation leave. On January 5, 2009, he sold back another 260 hours of vacation leave.
Nowicki retired on January 30, 2009, two and one-half years into his four-year term as fire chief, for personal reasons.
As a Fire District employee, Nowicki was a member of CCCERA, a defined benefit public employees’ retirement system (see § 31450 et seq. ), which administers pensions for Contra Costa County. Under his contract as fire chief, Nowicki was eligible for retirement benefits under the then applicable formula, which took into account a member's highest annual "compensation earnable." When Nowicki retired on January 30, 2008, his retirement allowance of $20,076.00 per month was based on the total of his final year's salary plus the vacation leave and holiday cash-outs taken during his final year of employment.
In late 2013, the Board assigned CCCERA staff to compare the final compensation of county retirees that was used to determine their pension benefit with the compensation earned in the period leading up to the final year, "to isolate incidents where that ratio was higher than average." This process was known as the "lookback project."
On August 5, 2015, the Board sent Nowicki a letter informing him that in 2014, it had been reviewing "past incidents of unusual compensation increases at the end of employment" to determine if pension spiking had occurred "through members’ receipt of pay items that were not earned as part of their regularly recurring employment compensation during their careers." The letter further stated the Board was scheduled "to hear the matter of whether adjustments to your retirement allowance are warranted" on September 9, and that, before adjusting Nowicki's retirement benefits, it would give him the opportunity to present the Board with his position and any relevant information on the issue.
On August 7, 2015, the Board sent Nowicki a copy of a memorandum and supporting documents regarding the grounds on which the Board would consider adjusting Nowicki's retirement allowance, pursuant to section 31539, which permits a retirement board to correct any error made in the calculations of a retired member's monthly allowance, if certain conditions exist.
Following a September 9, 2015 open public meeting at which the Board's concerns were addressed, on September 11, 2015, CCCERA sent Nowicki a letter informing him that the Board had determined that he had caused his final compensation to be improperly increased at the time of retirement, and that his retirement allowance would therefore be reduced from $20,448.09 to $14,667.74 per month. In a September 21, 2015 letter, CCCERA further informed Nowicki that his retirement allowance had been overpaid from January 30, 2009, through September 1, 2015, and that Nowicki would be responsible for repaying the overpayments plus interest, which then totaled $585,802.90.
On October 13, 2015, Nowicki filed a petition for writ of administrative mandate pursuant to Code of Civil Procedure section 1094.5 against CCCERA, requesting an order rescinding the Board's decision to reduce his pension benefit and reinstating that benefit as originally calculated. On February 8, 2017, Nowicki dismissed his petition for administrative mandate without prejudice after filing a complaint for injunctive relief and damages in federal district court on February 7, alleging causes of action for, inter alia, violation of due process under the federal and state Constitutions.2
On June 27, 2017, the federal district court granted CCCERA's motion to dismiss the complaint with leave to amend. ( Nowicki v. Contra Costa County Employees’ Retirement Assn. , 2017 WL 2775040(N.D.Cal., June 27, 2017, No. 17-cv-00629 ) [nonpub. opn.].) Then, on July 17, 2017, after Nowicki failed to file an amended complaint, the federal district court entered judgment in favor of, inter alia, CCCERA. The federal district court dismissed all federal causes of action with prejudice and dismissed all state claims without prejudice to any right Nowicki had to timely assert them in state court.
On July 10, 2017, Nowicki filed a first amended petition for writ of administrative mandate and complaint in state court, which included a cause of action against CCCERA for administrative mandate pursuant to Code of Civil Procedure section 1094.5, as well as causes of action alleging due process and equal protection violations under the California Constitution, breach of contract, breach of the duty of good faith and fair dealing, promissory estoppel, and also requesting declaratory relief.
On November 3, 2017, the trial court overruled CCCERA's demurrer as to Nowicki's administrative mandate cause of action in the first amended complaint, sustained the demurrer with leave to amend as to the fourth cause of action for denial of equal protection under the California Constitution, and sustained the demurrer without leave to amend as to the remaining causes of action, including the due process claim under the California Constitution.
On November 15, 2017, Nowicki filed a second amended petition for writ of administrative mandate and complaint, which included causes of action for administrative mandate pursuant to Code of Civil Procedure section 1094.5 and for denial of equal protection under the California Constitution.
On February 13, 2018, the trial court sustained CCCERA's demurrer to the second amended complaint without leave to amend as to the equal protection cause of action and with leave to amend the administrative mandate claim to "seek review pursuant to ordinary mandamus" under Code of Civil Procedure section 1085.3
After Nowicki filed a third amended petition for writ of administrative mandate, the parties met and conferred regarding objections to the petition raised by CCCERA, and submitted a stipulation to the court on March 12, 2018, under which CCCERA would not object to the filing of a fourth amended complaint for writ of ordinary mandate pursuant to Code of Civil Procedure section 1085.
On March 20, 2018, Nowicki filed his fourth amended writ petition against CCCERA, which included a single cause of action for writ of mandate under Code of Civil Procedure section 1085, alleging that the Board had abused its discretion when it found that he had violated Government Code section 31539. This petition is the operative pleading underlying Nowicki's current appeal.
In a February 19, 2020 order, following briefing and argument, the trial court denied Nowicki's petition, finding that he had not met his burden of...
To continue reading
Request your trial