29 Cal. App. 5th 846
Cal. Ct. App. 5th2018Background
- Jon Wilmot, a Contra Costa County fire captain, submitted a service retirement application with CCERA on December 13, 2012 and stopped working that day.
- The California Public Employees’ Pension Reform Act (PEPRA), including Gov. Code § 7522.72 (pension forfeiture for job‑related felonies), took effect January 1, 2013.
- CCERA formally approved Wilmot’s retirement on April 10, 2013 and began paying him a pension retroactive to December 13, 2012.
- Wilmot was indicted in February 2013 and in December 2015 pled no contest to embezzling county property from 2000–2012.
- After the conviction, CCERA applied § 7522.72, expunged service credit for 2000–2012, refunded most contributions for that period, and materially reduced Wilmot’s monthly pension.
- Wilmot sought a writ and declaratory relief arguing § 7522.72 did not apply to retirees who retired before January 1, 2013 and that applying it impaired his vested contract/ex post facto rights; the trial court denied relief and the appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 7522.72 applies to Wilmot | Wilmot was retired when he filed Dec 2012 application and thus not a “public employee”/“member” on Jan 1, 2013; statute does not reach pre‑effective‑date retirees | Retirement occurs when the retirement board approves the application; Wilmot remained a member/employee on Jan 1, 2013 and so § 7522.72 applies | Held: Wilmot was not formally retired until CCERA approved the application in April 2013; § 7522.72 applies to him |
| Whether application of § 7522.72 is an unconstitutional impairment of pension contract | Wilmot: his pension had become vested/payable upon retirement effective Dec 13, 2012 and cannot be diminished by later statute | State/CCERA: statutory application is permissible because Wilmot was not yet a retired member under CERL and benefits were not yet irrevocably vested | Held: Court resolved case on statutory construction (no need to reach contract clause); statutory scheme governs and applies |
| Whether § 7522.72 violates ex post facto prohibitions | Wilmot: statute punishes crimes committed before enactment (2000–2012), so it is retroactive punishment | State: statute is civil remedial forfeiture, not criminal; Legislature intended civil scheme and it is not so punitive as to be punitive in effect | Held: No ex post facto violation — statute is civil and not punitive in purpose/effect |
| Whether application of CERL’s procedures barred forfeiture | Wilmot: CCERA’s payment and dating retirement to Dec 13, 2012 reflects that he was retired pre‑PEPRA | CCERA: dating payments retroactive for administrative/payroll purposes does not change the statutory timing of retirement; board approval is the operative event | Held: Administrative dating does not alter CERL's rule that retirement occurs upon board action; forfeiture valid |
Key Cases Cited
- MacIntyre v. Retirement Board of S.F., 42 Cal.App.2d 734 (1941) (filing a retirement application does not itself effectuate retirement; an order of retirement is required)
- Wallace v. City of Fresno, 42 Cal.2d 180 (1954) (limitations on applying forfeiture provisions to already‑retired pensioners; modifications before pension payable permissible only if reasonable)
- Miller v. State of California, 18 Cal.3d 808 (1977) (anticipated pension benefits may be reasonably modified before pension becomes payable)
- Marin Assn. of Public Employees v. Marin County Employees' Retirement Assn., 2 Cal.App.5th 674 (2016) (discussing PEPRA changes and CERL interaction)
- Flethez v. San Bernardino County Employees Retirement Assn., 2 Cal.5th 630 (2017) (retirement board’s duty to investigate and pay benefits only to eligible members)