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

• Decision Date: 05 February 2021
• Docket Number: A152100
• Court: California Court of Appeals Court of Appeals
• Parties: Jon WILMOT, Petitioner and Appellant, v. CONTRA COSTA COUNTY EMPLOYEES’ RETIREMENT ASSOCIATION et al., Defendants and Respondents, State of California, Intervener.

60 Cal.App.5th 631

275 Cal.Rptr.3d 52

Jon WILMOT, Petitioner and Appellant,

v. CONTRA COSTA COUNTY EMPLOYEES’ RETIREMENT ASSOCIATION et al., Defendants and Respondents,State of California, Intervener.

A152100

Court of Appeal, First District, Division 2, California.

Filed February 5, 2021

Rains Lucia Stern St. Phalle & Silver PC, Timothy K. Talbot, Zachery A. Lopes, Pleasant Hill, for Plaintiff and Appellant Jon Wilmot.

Reed Smith LLP, Harvey L. Liederman, May-tak Chin, San Francisco, for Defendant and Respondent Contra Costa County Employees’ Retirement Association.

Xavier Becerra, Attorney General of California, Thomas S. Patterson, Senior Assistant Attorney General, Benjamin M. Glickman, Supervising Deputy Attorney General, Anna T. Ferrari, Deputy Attorney General, Anthony P. O'Brien, Deputy Attorney General, for Intervener State of California.

Richman, Acting P.J.

A veteran 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 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)(l) ( section 7522.72 ).) In February 2013, the employee was indicted for stealing county property. 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 property over a 13-year period ending in December 2012. Thereafter, the county pension authority reduced the employee's monthly check in accordance with the forfeiture provision.

The question presented is whether the forfeiture provision applies to the employee. We conclude the provision does apply to the employee because, as a matter of statutory construction, the employee had merely initiated the process of retiring. We also conclude that even if the employee was retired, and the forfeiture provision was applied to him, there would be no violation of the California Constitution's provision against the undue impairment of the employee's contract with his governmental employer, nor would that application constitute an ex post facto law.

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 established 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. Subdivision (a) states that it "shall apply to a public employee first employed by a public employer ... before January 1, 2013." 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 of 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.)²

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

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 equipment 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 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 Wilmot's total "employee contributions" of $288,857.74 would be refunded; and (3) these changes to his "Final Average Compensation Adjustment" would reduce Wilmot'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, even if ... section 7522.72 was intended to apply retroactively to persons who retired prior to its effective date, the statute cannot lawfully do so because Petitioner's pension benefit became due and payable upon his retirement and the Legislature cannot lawfully alter an existing retiree's pension benefit once the benefit came due and payable. The Legislature also lacks authority to enhance the punishment for past conduct by enacting an ex post facto law. By applying ... section 7522.72 ’s forfeiture provision to Petitioner, Respondents ignored the terms of the statute itself, unlawfully impaired Petitioner's constitutionally protected pension benefits, and violated Petitioner's constitutional right to be free from an ex post facto application of the law." The State of California was allowed to intervene to defend the constitutionality of section 7522.72.

Following extensive briefing and argument, the trial court (Hon. Charles Treat) denied the petition with a thoughtful order that, with minor, nonsubstantive modifications, merits quotation at length:

"Wilmot asserts a number of interconnected arguments why the Board's determination is incorrect, and he cannot be subjected to PEPRA's forfeiture provisions. First, he argues that he is not a ‘public employee,’ or ‘member’ subject to § 7522.72. It is undisputed that § 7522.72 did not come into effect until January 1, 2013. As of that date (Wilmot argues), he was no longer a ‘public employee,’ because he had retired effective the preceding December 13. That, he reasons, made him a retiree, not a ‘public employee’ (and hence also not a ‘member.’) Accordingly, by its own textual definition of its coverage, § 7522.72 does not apply to him, and does not authorize or work any forfeiture of his pension rights.

"Wilmot's following arguments are variations on the same theme. His second argument is that if § 7522.72 could be read as applying to a person who had retired before 2013, it would be at best ambiguous in that respect. Thus, he invokes the principle of refusing to read a statute to apply retroactively-meaning, as Wilmot uses the term, as applicable to a person already retired as of the effective date of the statute. Third, he argues that if the statute did dictate a forfeiture as to pension rights that had accrued...