49 Pa. Commw. 364 | Pa. Commw. Ct. | 1980
Lead Opinion
Opinion by
The question in this case is whether a statute violates constitutional prohibitions against impairment of obligation of contract or bills of attainder where it provides retroactively that pension benefits being received by a retired Commonwealth employee shall be forfeited if the employee is convicted or pleads no defense to a crime related to public office or public employment.
This question has been raised by petition for review on behalf of petitioner (now deceased) from an action of the State Employes’ Retirement Board (board) discontinuing the pension benefits which petitioner had been receiving in retirement.
The wholly documentary record certified to us by the board reveals that petitioner, as a retired Commonwealth employee, had qualified for, and was re
On July 8, 1978 the Public Employee Pension Forfeiture Act
Section 3. Disqualification and forfeiture of benefits.
(a) Notwithstanding any other provision of law, no public official or public employee nor any beneficiary designated by such public official or public employee shall be entitled to receive any retirement or other benefit or payment of any kind except a return of the contribution paid into any pension fund without interest, if such public official or public employee is convicted or pleads guilty or no defense to any crime related to public office or public employment.
(b) . . . Such conviction or plea shall be deemed to be a breach of a public officer’s or public employee’s contract with his employer.
(c) Each time a public officer or public employee is elected, appointed, promoted, or otherwise changes a job classification, there is a termination and renewal of the contract for purposes of this act.
Section 7. Retroactively [sic]
The provisions of this act shall be retroactive to December 1,1972.
*367 Section 8. Effective date.
This act shall take effect immediately.
The act was approved July 8,1978.
On September 6, 1978 the board, by letter, informed petitioner that it had been provided with a certified copy of the action taken in the United States District Court for the Western District of Pennsylvania and that:
Accordingly, pursuant to Act No. 140, effective July 8, 1978, known as the Public Employee Pension Forfeiture Act, upon advice of Counsel, the Board is discontinuing pension benefit payments to you, effective immediately.
This proceeding attacks that action and the law on which it is based.
Before we reach the merits, we have the Commonwealth’s claim that the petition should be dismissed because it seeks review of ministerial action rather than an adjudication and therefore involves a matter not suitable for an appeal but which should be presented to us in the form of an original jurisdiction action in mandamus.
The Commonwealth cites Fricchione v. Department of Education, 4 Pa. Commonwealth Ct. 288, 287 A.2d 442 (1972), but that case involved a proceeding to seek issuance of a teaching certificate pursuant to the terms of an uncontested statute, so that we held mandamus to be appropriate, while the present proceeding does not seek to enforce public agency action in accordance with statute but instead attacks the validity of a law, for which mandamus is never appropriate. Unger v. Hampton Township, 437 Pa. 399, 263 A.2d 385 (1970).
The Commonwealth also argues that an original proceeding is necessary here to create a record of facts against which the administrative action can be
Certainly, within the terms of 2 Pa. C.S. §101, the order of the board here was an adjudication in that it was a “final order ... by an agency affecting personal or property rights . . . duties, liabilities or obligations” of the parties, so that an appeal is available under 2 Pa. C.S. §702. The Commonwealth does not claim that there is any further administrative remedy which petitioner has not exhausted.
The Commonwealth also argues that an appeal is not appropriate because 2 Pa. C.S. §504 provides that no agency adjudication shall be valid unless the party ‘ ‘ shall have been afforded reasonable notice of a hearing and an opportunity to be heard.” However, because petitioner was plainly willing to forego the hearing opportunity which the Commonwealth heretofore has failed to provide, it ill behooves the Commonwealth now to insist upon it.
We therefore decline to dismiss the appeal.
We turn to the constitutional merits. In support of the constitutional attack under Pennsylvania Constitution art. 1, §17 and Unitéd States Constitution art. 1, §9, cl. 3, both forbidding laws impairing the obligation of contracts and the latter also forbidding bills of attainder, petitioner cites Harvey v. Allegheny County Retirement Board, 392 Pa. 421, 141 A.2d 197 (1958) in which the Pennsylvania Supreme Court, as to the rights of a public employee in a retirement system, stated:
An employe who has complied with all conditions necessary to receive a retirement allow*369 anee cannot be affected adversely by subsequent legislation which changes the terms of the retirement contract.
392 Pa. at 431, 141 A.2d at 203.
The court also pointed out that an employee who has not attained eligibility to receive a retirement allowance is subject to subsequent legislation changing the terms of the retirement contract only if the change reasonably enhances the actuarial soundness of the retirement fund, a qualification not applicable here because it is undisputed that petitioner had attained eligibility to receive a retirement allowance.
In Retirement Board of Allegheny County v. McGovern, 316 Pa. 161, 174 A. 400 (1934), the Pennsylvania Supreme Court held that, when the conditions of retirement eligibility have been satisfied, retirement pay has ripened into a full contractual obligation and become a vested right. McBride v. Allegheny Retirement Board, 330 Pa. 402, 199 A. 130 (1938) also held that such a vested right cannot be disturbed by subsequent legislation.
Baker v. Retirement Board of Allegheny County, 374 Pa. 165, 97 A.2d 231 (1953) held that where actuarial soundness was not involved, even a pension fund member not yet eligible for retirement was in a position such that:
The legislature could not thereafter constitutionally alter the provisions of his already existing contract of membership. His rights in the fund could only be changed by mutual consent.
374 Pa. at 169, 97 A.2d at 233. See also Wright v. Allegheny County Retirement Board, 390 Pa. 75, 134 A.2d 231 (1957); Jameson v. Pittsburgh, 381 Pa. 366, 113 A.2d 452 (1955); Mauch v. Allegheny County Retirement Board, 381 Pa. 492, 113 A.2d 230 (1955); and
Recognizing the rule thus reiterated, the Commonwealth contends that the avoidance of crime related to public employment is an implicit provision of the employment contract of any public servant, and thus that the retroactive act represents only a confirmation of that implicit contractual condition, citing Ballurio v. Castellini, 29 N.J. Superior Ct. 383, 102 A.2d 662 (1954), substantially to that effect. However, in that case and also in Plunkett v. Board of Pension Commissioners of Hoboken, 113 N.J.L. 230, 173 A. 923 (1934) and Eberle v. LaGuardia, 285 N.Y. 247, 33 N.E.2d 692 (1941), cited by the Commonwealth for the same proposition, we find that neither the New Jersey court nor the New York court considered any constitutional questions because none were raised; all three cases were confined to issues of statutory construction. Moreover, those New Jersey opinions identified New Jersey as a jurisdiction which considers a public pension to be a “bounty” rather than a vested right, therefore not adhering to the Pennsylvania premise that pension eligibility involves a contractual entitlement.
In our view, the statute in question does effect an unconstitutional impairment of the obligation of contract, at least in this worst-case situation, where, after the employee’s eligibility has accrued and his drawing of retirement benefits has commenced, a law thereafter adopted purports to cut off the pension entitlement because of a criminal conviction or plea which also came about after the accrual of the pension entitlement and benefits.
Moreover, even if every public employment contract be deemed to include an implicit term that the performance of the public service shall be free from
Retroactive punishment of former employees for their past misdoings has no reasonable bearing upon the regulation of the conduct of those presently employed.
Hiss, supra, 338 F. Supp. at 1148.
However greatly we might feel outrage that a government official would use public employment for criminal purposes, we cannot uphold a punishment devised after the fact. Satisfaction of that outrage is not worth the loss we would suffer as a community by weakening the wise constitutional safeguards against laws which impose sanctions by hindsight.
We need not consider further whether the act constitutes a bill of attainder or bill of pains and penalties under the doctrines of Cummings v. Missouri,
We will reverse the order of the State Employes’ Retirement Board and remand with a direction that the discontinued pension benefits be reinstated from the time of their discontinuance, with such effect as the pension laws confer.
Order
And Now, this 20th day of February, 1980, the order of the State Employes ’ Retirement Board dated September 6, 1978 is hereby reversed and this matter is remanded with a direction that all pension benefits • thereby discontinued be restored as of, and after, September 6, 1978. with such effect as the pension laws confer.
Act of July 8, 1978, P.L. 752, 43 P.S. §1311 et seq.
Dissenting Opinion
Dissenting Opinion by
I respectfully dissent.
Petitioner pleaded nolo contendere to four counts of extortion on July 12, 1978, four days after the effective date of the Public Employee Pension Forfeiture Act (Act), Act of July 8, 1978, P.L. 752, 43 P.S. §1311 et seq. I am of the opinion that the forfeiture provisions of the Act are triggered not by the misconduct of the employee, but by the date of his plea or conviction. Therefore, I believe the issue is not whether the Act is unconstitutional as it is applied retroactively, but rather whether it is unconstitutional as it is applied prospectively.
I am persuaded that implied in every contract of public employment is an obligation to perform one’s job without using it for the commission of crimes.
In Hiss v. Hampton, 338 F. Supp. 1141 (D.D.C. 1972), also cited by the majority, the Court held a somewhat similar federal statute
Finally, I am not certain if the majority has decided that the entire statute is unconstitutional or whether it has decided only that the application of the statute to this “worst-case” situation is unconstitutional.
In any event, I would hold that the Act may be applied prospectively and since I believe that is what was done in the instant case, I would affirm the order of the State Employes ’ Retirement Board.
In addition, I would add the following case: Baltimore County Board of Trustees v. Comes, 247 Md. 182, 230 A.2d, 458 (1967).
The Government Organization and Employees Act, 5 U.S.O. §8313.