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Cases To Be Discussed At State Bar 2017 Labor And Employment Public Sector Conference, Friday, April 21, 2017, 10:25-11:40 am, Claremont Resort, 44 Tunnel Road, Berkeley.

On April 12, 2017, the California Supreme Court accepted review of Cal Fire Local 2881 et al. v. California Public Employees’ Retirement System, et al, 7 Cal.App.5th 115 (2016).

This is the second case the Court has accepted for review that involves California’s “vested rights” doctrine. Last year, the Court accepted review of Marin Association of Public Employees v. Marin County Employees’ Retirement Association, 2 Cal.App.5th 674 (2016). Historically, some courts have invoked the vested rights doctrine to limit the ability of public employers to alter pension benefits for public employees, even when the benefits became financially unsustainable.

In the Marin case, the Court of Appeal, First Appellate District, Division Two, held that the decision by the Marin County Employees’ Retirement Association (MCERA) to prospectively eliminate pension benefits attributable to “stand by” and other time was “reasonable.” Contrary to plaintiffs’ contentions, the Court found that MCERA was not required to offer a “comparable” new benefit to employees.

In December 2016, in Cal Fire Local 2881, Division Three of the First Appellate District joined Division Two, and held, as an alternative holding, that the state had the power to eliminate the purchase of “air time” because the modification was “reasonable” and did not require the offer of a “comparable” benefit to employees.

The California Supreme Court may hear the Cal Fire case first, because the Court is holding the Marin case until the Court of Appeal decides a trio of other cases involving AB 197, the statute at issue in the Marin case.

These cases will be the topic of a panel discussion at the State Bar 2017 Labor and Employment Public Sector Conference, Friday, April 21, 2017, 1:25-11:40 am, Claremont Resort, 44 Tunnel Road, Berkeley.

Background – Purchase of “Air Time.”

Under Government Code section 20909, enacted in 2003, eligible public employees had the option to purchase at cost up to five years of service credit. Purchase of this service credit, called “air time,” enabled employees to increase their pensions.

As of 2013, the state legislature eliminated the option to purchase “air time” as part of the Public Employees’ Pension Reform Act of 2013 (PEPRA), designed to strengthen the state’s public pension system by eliminating pension “spiking.”

A number of unions sued, claiming that the elimination of the option to purchase “air time” violated their vested rights under the contracts clause of the California constitution. (Cal. Const., art. 1, section 9.)

The Court found no “clear” intention to create a vested right to “air time.”

 In Cal Fire Local 288, the Court of Appeal first applied the standards enunciated in Retired Employees Assn. of Orange County, Inc. v. County of Orange, 52 Cal.4th 1171, 1186, 1189, which held that plaintiffs carry the “heavy burden” of “clearly” proving that the legislature intended to grant a vested right.

 The Court of Appeal found that there was “nothing in either the text of the statute … or its legislative history” that unambiguously stated an intent to create a vested benefit. Rather the Court held that Section 20909, “does no more than permit an eligible member” to “elect” to make the additional contributions to purchase airtime. (Cal Fire at 126.) The Court declined “to add to this straightforward reading of this statutory phrase any promise by the Legislature not to modify or eliminate the option to purchase service credit” and stated that the legislature would have “used much clearer language if it had in fact harbored such intent.” (Id. at 127.)

The Court found a “reasonable” modification, with no requirement to provide a “comparable” new advantage.

 The Court of Appeal also held that, under Supreme Court standards, a public employer had the right to make “reasonable” modifications to an employee’s pension rights. Quoting Betts v. Board of Administration, 21 Cal.3d 859, 864 (1978), the Court stated that: “To be sustained as reasonable, alternations of employees’ pension rights must bear some material relation to the theory of a pension system and its successful operation, and changes in a pension plan which result in disadvantage to employees should be accompanied by comparable new advantages.”

Importantly, the Court agreed with Division Two of the First Appellate Division in rejecting the contention that the state was required to prove a “comparable advantage” to offset the loss of the benefit: “We agree with this conclusion reached by our colleagues, and as such, reject plaintiffs’ claim that, absent proof that CalPERS members were granted a comparable advantage, the Legislature’s elimination of the airtime service credit must be deemed constitutionally barred.” (Cal. Fire at 131)

The Court concluded with the affirmation that public employees are entitled “only to a ‘reasonable’ pension, not one providing fixed or definite benefits immune from modification or elimination by the governing body.” (Id. at 132.)

For more information, please contact Linda Ross (, 510-995-5807) or Jon Holtzman (, 415-678-3807).