Retiree Forfeited Part Of Pension Because Of Criminal Conduct

CATEGORY: Client Update for Public Agencies, Fire Watch, Law Enforcement Briefing Room
CLIENT TYPE: Public Employers, Public Safety
DATE: Mar 15, 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.  Also in April 2013, Wilmot began receiving monthly pension checks.  In December 2015, Wilmot pled guilty to embezzling County property over a 13-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.  The trial court disagreed, holding that the CCERA properly applied the forfeiture provision to Wilmot’s pension.

Wilmot appealed, and the Court of Appeal affirmed the trial court’s decision.

First, Wilmot argued 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.  Relying on the Court of Appeal’s previous decision in Marin Association of Public Employees v. Marin County Employees’ Retirement Association, the Court of Appeal 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 the application of 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 of Appeal disagreed. 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.  Relying on the Supreme Court’s decision in Alameda County Deputy Sheriff’s Association v. Alameda County Employees’ Retirement Association and the Court of Appeal’s decision in Hipsher v. Los Angeles County Employees Retirement Association, the Court of Appeal noted that one of the primary objectives in providing pensions to public employees is to induce competent persons to remain in public employment and render faithful service.  Therefore, withholding that inducement if an employee’s performance is not faithful (such as Wilmont who pled guilty to embezzling County property for 13 years) is a logical and proper response to improve the function of a public pension plan.

Fourth, Wilmot argued applying the PEPRA’s forfeiture provision was an unconstitutional ex post facto law — meaning a law that only makes an act illegal or that increases the penalties for an infraction after the act has been committed. The Court of Appeal disagreed, holding the forfeiture provision is a civil remedial measure, not a criminal penalty, and does not improperly increase the penalty for Wilmot’s misconduct.  Rather, the forfeiture provision merely takes back from Wilmot what he never rightfully earned in the first place due to his failure to faithfully perform in public service.

Accordingly, the Court of Appeal determined that the CCERA properly applied the PEPRA’s forfeiture provision to Wilmot because of his admitted criminal conduct during his employment.

Wilmot v. Contra Costa County Employees’ Retirement Association, 60 Cal.App.5th 631 (2021).


This decision relies upon a case that LCW attorneys won involving a complex retirement issue.  LCW Partner Steven Berliner and Associate Attorney Joung Yim successfully represented a defendant agency in Hipsher v. Los Angeles County Employees Retirement Association

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