Under the Pension Reform Act effective Jan. 1, 2013, a public employee forfeits the employer’s contributions to the pension plan on his behalf if he is convicted of a felony for “conduct arising out of or in the performance of his or her official duties.”  (Gov. Code 7522.72(b)(1).)  Here, a fire captain submitted his resignation in December 2012 and was later convicted of a felony of theft from the fire department over the course of many of the years of his employment.  He argued that he retired in 2012 so the Pension Reform Act didn’t apply to him.  This decision rejects that contention, pointing out that for pension purposes, retirement occurs when the pension board accepts the employee’s application for retirement benefits, not when the employee stops working.  Here, the fire captain’s application was accepted by the pension board in April 2013, so the Pension Reform Act applied to him and required forfeiture of a large portion of his pension.  The forfeiture did not violate the ex post facto clause because it wasn’t a criminal penalty.

California Court of Appeal, First District, Division 2 (Richman, Acting P.J.); November 1, 2018 (published December 3, 2018); 29 Cal. App. 5th 846