Public Sector Case Notes
| Publication year | 2021 |
| Author | By J. Scott Tiedemann and Kaylee E. Feick |
By J. Scott Tiedemann and Kaylee E. Feick1
Scott Tiedemann is the Managing Partner of Liebert Cassidy Whitmore, California's largest public sector labor, employment and education law firm. He is the author of the CPER Pocket Guide to the Firefighters Procedural Bill of Rights, as well as a chapter on that topic in California Public Sector Employment Law. Kaylee Feick is an Associate in Liebert Cassidy Whitmore's Los Angeles office, where she provides representation and counsel to clients in all matters pertaining to labor, employment, and education law. She provides support in litigation claims for discrimination, harassment, retaliation, wage and hour disputes, and other employment matters. The authors can be reached at (310) 981-2000 and stiedemann@lcwlegal.com or kfeick@lcwlegal.com.
Wilmot v. Contra Costa Cty. Employees' Ret. Ass'n, 60 Cal. App. 5th 631 (2021)
In December 2012, Jon Wilmot, an employee with the Contra Costa County Fire Protection District, submitted his application for retirement to the County's retirement authority, the Contra Costa County Employees' Retirement Association (CCERA), established in accordance with the County Employees Retirement Law of 1937 (CERL). On January 1, 2013, the California Public Employees' Pension Reform Act of 2013 (PEPRA) took effect, which included a provision mandating 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."
In February 2013, Wilmot was indicted for stealing County property. In April 2013, CCERA approved Wilmot's retirement application, fixing his actual retirement on the day he submitted his application in December 2012. In April 2013, Wilmot began receiving monthly pension checks. In December 2015, Wilmot pled guilty to embezzling County property over a thirteen-year period ending in December 2012. Thereafter, the CCERA reduced Wilmot's monthly check in accordance with PEPRA's forfeiture provision.
Wilmot petitioned for a writ of traditional mandate and declaratory relief. He argued that the CCERA's application of the PEPRA's felony forfeiture provision was improper because the statute does not apply retroactively to persons who retired prior to PEPRA's effective date. However, the trial court held that the CCERA properly applied the forfeiture provision to Wilmot's pension. Wilmot appealed.
On appeal, Wilmot first argued that when PEPRA took effect in January 2013, he was no longer a "public employee" because he worked his final day and submitted his retirement paperwork in December 2012. The Court of Appeal disagreed, stating that an employee's retirement application is pending until approved by a retirement board under the CERL. When PEPRA took effect, Wilmot's application was submitted, but CCERA did not approve his application until April 2013. Thus, he was subject to PEPRA's forfeiture provision.
Second, Wilmot argued he was improperly being "divested" of his vested pension benefits. Again, the Court of Appeal disagreed. Instead, the court confirmed that anticipated pension benefits are subject to reasonable modifications and changes before the pension becomes payable, and that an employee does not have a right to any fixed or definite benefits until that time.
Third, Wilmot argued that applying the forfeiture provision "impaired the obligation" of his employment contract with Contra Costa County, which is prohibited by the California Constitution's contract clause. The court acknowledged that to be constitutional under the contract clause, modification of public pension plans must relate to the operation of the plan and intend to improve its function or adjust to changing conditions. However, the court...
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