BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  SB 39
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          SENATE THIRD READING
          SB 39 (De León)
          As Amended  September 10, 2013
          2/3 vote.  Urgency 

           SENATE VOTE  :Vote not relevant  
           
           JUDICIARY           10-0                                        
           
           -------------------------------------- 
          |Ayes:|Wieckowski, Wagner,       |     |
          |     |Alejo, Chau, Dickinson,   |     |
          |     |Garcia, Gorell,           |     |
          |     |Maienschein, Muratsuchi,  |     |
          |     |Stone                     |     |
          |     |                          |     |
           -------------------------------------- 
           SUMMARY  :  Requires an elected or appointed local public officer,  
          as defined, to forfeit any contract or similar claim for  
          retirement or pension benefits, other than those accrued  
          benefits which he or she may be entitled to under the applicable  
          public retirement system, if he or she has been convicted of  
          specified felonies under state or federal law.  Specifically,  
           this bill  :    

          1)Provides that a local public officer, as defined, who is  
            convicted by a state or federal trial court of any felony  
            under state or federal law for conduct arising out of or in  
            the performance of his or her official duties shall forfeit  
            any contract right or other common law, statutory or  
            constitutional claim against a local public agency employer to  
            retirement or pension rights or benefits, however those  
            benefits may be characterized, including lost compensation,  
            other than the accrued rights and benefits to which he or she  
            may be entitled under any public retirement system in which he  
            or she is a member.

          2)Specifies that the forfeiture provided by this act shall be in  
            addition to and independent of any forfeiture of public  
            retirement system rights and benefits pursuant to Government  
            Code Sections 7522.70, 7522.72 or 7522.74.

          3)Defines "local public officer" to mean a person, either  
            elected or appointed, who exercised discretionary, executive  








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            authority in his or her employment.

          4)Requires the prosecuting agency and the local public officer,  
            upon conviction, to notify the public employer who employed  
            the local public officer at the time of the commission of the  
            felony within 60 days of the felony conviction regarding the  
            fact of conviction.  Provides that the operation of this  
            section is not dependent upon the performance of the  
            notification obligations specified in this subdivision.

          5)Finds and declares that local public agencies need protection  
            from disgraced and avaricious public officials who, following  
            conviction for crimes arising out of the performance of their  
            official duties, continue to seek unfair benefits at public  
            expense by asserting a claim that their former employers owe  
            them the value of pension benefits, including benefits that  
            the public retirement systems charged with administration of  
            those benefits have rightfully disallowed.




           EXISTING LAW  :  

          1)Provides that if an elected public officer after January 1,  
            2006, is convicted during or after holding office of any  
            felony involving accepting or giving, or offering to give, any  
            bribe, the embezzlement of public money, extortion or theft of  
            public money, perjury, or conspiracy to commit any of those  
            crimes arising directly out of his or her official duties as  
            an elected public officer, he or she shall forfeit all rights  
            and benefits under, and membership in, any public retirement  
            system in which he or she is a member, effective on the date  
            of final conviction.  

          2)Provides that if a public employee or a person elected or  
            appointed to public office is convicted by a state or federal  
            trial court of any felony under state or federal law for  
            conduct arising out of or in the performance of his or her  
            official duties, in pursuit of the office or appointment, or  
            in connection with obtaining salary, disability retirement,  
            service retirement, or other benefits, then the following  
            apply:









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             a)   He or she shall not accrue further benefits in any  
               public retirement system in which he or she is a member,  
               effective on the date of the conviction. 

             b)   He or she shall forfeit all rights and benefits earned  
               or accrued from the earliest date of the commission of the  
               felony to the date of conviction, inclusive.  Further  
               requires the retirement benefits to remain forfeited  
               notwithstanding any reduction in sentence or expungement of  
               the conviction following the date of conviction, but those  
               retirement benefits attributable to service performed prior  
               to the date of the first commission of the felony for which  
               he or she was convicted shall not be forfeited.  

           FISCAL EFFECT  :  None

           COMMENTS  :  According to the author, this bill is needed to  
          ensure that local public officers who are convicted of a felony  
          in the course of performing their official duties - such as  
          theft, fraud and misappropriation of public funds - bear  
          appropriate additional consequences for that illegal conduct by  
          forfeiting any contract right or similar claim for retirement or  
          pension benefits against the public employer, other than those  
          accrued benefits that they may be entitled to under the  
          applicable public retirement system.  Among other examples, the  
          bill is particularly needed, the author contends, in light of  
          several widely reported cases, including the Southern California  
          Cities of Vernon and Bell, where local public officers allegedly  
          took actions to boost their compensation and retirement or  
          pension benefits and otherwise misused their office for personal  
          benefit, among other wrongdoing.  

          Some of these officials, such as Bruce Malkenhorst, the former  
          city manager of Vernon, and five former members of the Bell City  
          Council, were actually convicted of misappropriation and  
          corruption charges.  In the wake of these events, CalPERS  
          administrators conducted investigations in which they determined  
          that these officials were not entitled to the hefty pension  
          amounts they claimed.  

          This bill provides that a local public officer, as defined, who  
          is convicted by a state or federal trial court of any felony  
          under state or federal law for conduct arising out of or in the  
          performance of his or her official duties shall suffer the loss  








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          of any alleged contract right or similar claim against a local  
          public agency employer to retirement or pension rights or  
          benefits, other than the accrued rights and benefits to which he  
          or she may be entitled under any public retirement system in  
          which he or she is a member.  In other words, this bill  
          establishes an additional consequence for local public officials  
          who have been convicted of wrongdoing in the course of their  
          official duties.  As a result, they shall forfeit any contract  
          or similar claim for retirement or pension benefits against the  
          public employer, however those benefits may be characterized,  
          including, but not limited to, lost compensation. 

          The loss of an asserted contract right to retirement benefits as  
          a penalty for conviction of a felony committed in the course of  
          a public officer's duties is consistent with existing law.   
          Public employees and public officials who are convicted of  
          specified felonies currently suffer loss of CalPERS and  
          analogous benefits that might otherwise be due under a public  
          retirement system.  This bill would modestly expand that rule to  
          the loss of correlative contract and related claims that do not  
          relate to the public officer's membership in a public retirement  
          system.  The forfeiture of such rights as a consequence for  
          wrongdoing in office is also consistent with contract principles  
          that provide for the loss of contract benefits when one is in  
          breach of contract, such as would unquestionably be true of a  
          public officer who commits a felony on the job.

          Importantly, this bill does not attempt to strip or deny all  
          pension benefits to the public officer.  The bill allows the  
          public officer to retain the accrued rights and benefits to  
          which he or she may be lawfully entitled to under the applicable  
          public retirement system, but requires the civil forfeiture of  
          any contract right or other claim to additional retirement or  
          pension rights or benefits outside of or beyond that amount to  
          which the officer may be entitled under that system.  

          The forfeiture provisions of this bill apply only to "local  
          public officers," which is defined as only those persons, either  
          elected or appointed, who exercised discretionary, executive  
          authority in their employment.  Accordingly, the bill does not  
          apply to most public employees, few of whom in any event are  
          convicted of felonies arising out of the performance of their  
          official duties.  In addition, the bill applies to any claim  
          filed prior to the effective date of the act, and still pending  








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          on that date, and any claim commenced after that date.  The bill  
          is an urgency measure to take effect immediately.
           
           
           Analysis Prepared by  :   Anthony Lew and Kevin Baker/ JUD. /  
          (916) 319-2334 


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