San Francisco isn’t exactly some sort of frontier justice place. Unless, of course, you’re a lucrative city employee who’s been taken to task for taking advantage of your job and using it for your own benefit and that of your cronies. In this case, the city powers that be tend to figuratively lead you to the city limits and deliver the same speech the Aintry County Sheriff gave Jon Voight at the end of Issuance: “Never do something like that again. Don’t come back here.”
Here we go. With your pension intact, of course.
The bar for a worker in San Francisco to lose his pension is high. It is not enough to be a bad worker or a bad person or even a convicted criminal. He or she must be found guilty – and sentenced – for a crime of “moral turpitude” related to his or her work. It’s an antiquated phrase implying an intentional abuse of authority or funds, but perhaps best described to your humble narrator as “one of those vague terms that lawyers use to make sure there will always be a need for lawyers.”
As such, former Building Inspection Department boss Tom Hui, who hastily resigned after the city prosecutor uncovered a trove of incriminating documents, is pocketing $16,398.61 a month. since March 12, 2020. Former PUC chief executive Harlan Kelly, who is federally charged with bribery and bank fraud, has been drawing $22,065.96 a month since December 1, 2020. The former inspector Bernie Curran, who created a cottage industry of traveling around town and approving shoddy construction projects of advantaged individuals — and is also federally and locally charged with corruption — has been earning $4,429.90 a month since on June 15, 2021. And former public works boss Mohammed Nuru, whose arrest in January 2020 started the city’s ongoing corruption domino game, earns $7,463.78 a month.
(Why so low for Nuru? The city’s pension system tells us that “at the time he left city employment, Mr. Nuru did not meet the age and service requirements to receive an allowance. However, he was eligible to receive a vested benefit – an annuity based on his [retirement system] account balance. “)
The money these men have received to date belongs to them, as does the money they will receive until their eventual sentencing. The wheels of justice, of course, turn slowly — especially when there’s every reason to gum them up and cash more checks.
Enter Supervisor Aaron Peskin, who last week presented a potential amendment to the November charter to – moving forward – lower the bar to deprive bad workers of their pensions. That’s been a long time coming for Peskin, who has publicly spoken out against city honchos who “do all the kind of stuff that makes everyone puke in their mouths about the government” just by being showed the door to a lucrative retirement.
Rather than waiting years for a conviction while an accused felon cashes government check after government check, Peskin suggests the city’s pension system can convene an “administrative hearing” to determine whether a worker has “committed a crime involving moral turpitude in connection with the member’s duties as an officer or employee of the city and county.” If “clear and convincing evidence” points to a yes, then that worker “must lose all rights to any other benefits from the pension system…”
Voters’ behavior is hard to predict, but the electorate is in a sour mood right now. Peskin’s proposal cannot deal with Nuru, Kelly et al. post facto. But, if he makes it to the November ballot, these guys will be on voters’ minds – and it’s hard to conceive of a winning argument that he should be Stronger to strip criminals of their government pensions.
But the question here may not be what the voters think – but rather what the judges think.
Reviewing what it takes, from top to bottom of the state, to revoke an employee’s pension, the San Francisco standards don’t forgive bad workers more or less, but are narrower.
State and local employees in 27 systems in 20 counties — perhaps three-quarters of all California public workers — are under the umbrella of the Civil servant pension reform law (PEPRA). And under that system, a worker convicted of a work-related crime actually has options that a San Francisco employee doesn’t.
While a sneaky San Francisco worker risks losing his entire pension, under PEPRA the math is different. Here, a pension board reviews the period of time between a worker’s first employment-related crime and the date of his conviction, and then removes that period from his pension award. A good example is the case of former Contra Costa County Fire Captain John Wilmot, who pleaded guilty to stealing a wide range of equipment from fire stations over the past 13 years. Rather than having his pension payments revoked altogetherhe instead had 13 years of service stripped from his pension, leaving him with payments based on a mere dozen years of service.
Meanwhile, in San Jose — like San Francisco, a charter city — police and fire departments are (potentially) held to a standard exceeding That of San Francisco. Cops or firefighters found guilty of a crime – any crime, not just a workplace or work-related crime — may be deprived of their entire pension.
The San Jose Police and Fire Department Pension Board is actually, currentlywondering if he should slash the pensions of two cops who were long ago convicted and sentenced for serious – but non-job-related – sex offenses, but continued to receive pension checks.
Thus, there are a variety of ways to deal with bad workers. But the common thread here is: First, there must be a criminal conviction. The Peskin Charter Amendment would eliminate that. And that makes pension experts uneasy.
“The Constitution of the United States and the Constitution of California prohibit any state from enacting any law that infringes the obligation of contracts,” notes Wyne. “There has been a body of case law in California courts, all the way to the Supreme Court, that has found that public employee retirement benefits are a contractual benefit.”
“Clear and convincing” evidence – the standard outlined in Peskin’s proposal – is not “proof beyond a reasonable doubt”. And an administrative hearing is not a criminal court. The potential San Francisco Charter amendment could run into constitutional hurdles at the state level — and, via the 5th and 14th Amendments, at the federal level as well.
“I would expect members whose benefits have been reduced by the pension system to challenge that reduction,” Wyne predicted, “probably on the concept of grandfathering and not having due process. “.
Union leaders told me they weren’t tasked with protecting workers who defrauded the public — and they wouldn’t necessarily be opposed to a stricter process. But, obviously, there are a lot of meetings and consultations to be done between the city and its unions, lawyers and union lawyers. There’s potentially some tinkering to be done before voters have a say – if, at the end, voters have their say.
The idea of holding bad actors accountable in a faster and cheaper way is simple and straightforward. A bit like border justice.
But San Francisco is neither fast, nor cheap, nor direct, nor simple. San Francisco, after all, isn’t exactly some kind of border justice place.