Opinion

American Federation of State etc. Employees v. City of L.A.

Court
California Court of Appeal
Filed
Mar 27, 2025
Status
Published
Cited by
0 cases
Authority
More cited than 34.6%

The opinion

Filed 3/27/25 (unmodified opn. attached)

CERTIFIED FOR PARTIAL PUBLICATION *

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

AMERICAN FEDERATION OF B322224

STATE, COUNTY AND

MUNICIPAL EMPLOYEES et al., (Los Angeles County

Super. Ct. No. BS166535)

Plaintiffs and Appellants,

v. ORDER MODIFYING

OPINION AND DENYING

CITY OF LOS ANGELES, PETITIONS FOR

REHEARING; THERE IS A

Defendant and Respondent; CHANGE IN APPELLATE

JUDGMENT

INTERNATIONAL

BROTHERHOOD OF ELECTRICAL

WORKERS, LOCAL 18,

Intervener and Respondent.

* Pursuant to California Rules of Court, rules 8.1105(b) and

8.1110, this opinion is certified for publication with the exception

of part B of the Discussion.

THE COURT:

It is ordered that the opinion filed herein on February 27,

2025 be modified as follows:

On page 28, under the DISPOSITION, the word

“Employees” is deleted so that the sentence now read “The City

and Local 18 are entitled to recover their costs on appeal.”

On page 23, footnote 9, delete the following fragment from

the last sentence: “to treat DWP and the City as a ‘single

employer,’ much less” so that the last sentence now reads “The

fact that these separate retirement systems are both under the

umbrella of the City of Los Angeles does not provide a basis to

conclude either LACERS or WPERP members have a vested right

to transfer between DWP and the City without any effect on their

pension.”

There is a change in the appellate judgment.

The respective petitions for rehearing filed by respondent

City of Los Angeles and respondent International Brotherhood of

Electrical Workers, Local 18, are denied.

MARTINEZ, P. J. SEGAL, J. STONE, J.

2

Filed 2/27/25 (unmodified opinion)

CERTIFIED FOR PARTIAL PUBLICATION *

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

AMERICAN FEDERATION OF B322224

STATE, COUNTY AND

MUNICIPAL EMPLOYEES et al., (Los Angeles County

Super. Ct. No. BS166535)

Plaintiffs and Appellants,

v.

CITY OF LOS ANGELES,

Defendant and Respondent;

INTERNATIONAL

BROTHERHOOD OF ELECTRICAL

WORKERS, LOCAL 18,

Intervener and Respondent.

APPEAL from a judgment of the Superior Court of Los

Angeles County, Mary H. Strobel, Judge. Affirmed.

Rothner, Segall & Greenstone, Hannah Weinstein and

Julia Harumi Mass for Plaintiffs and Appellants.

* Pursuant to California Rules of Court, rules 8.1105(b) and

8.1110, this opinion is certified for publication with the exception

of part B of the Discussion.

Kronick, Moskovitz, Tiedmann & Girard, David W. Tyra

and Alec D. Tyra for Defendant and Respondent.

Schwartz, Steinsapir, Dohrmann & Sommers, D. William

Heine, Daniel E. Curry and Alejandro Delgado for Intervener and

Respondent.

___________________

This appeal arises from the cessation of a Reciprocal

Retirement Benefits Arrangement (Reciprocal Arrangement) for

the transfer of employee pension contributions when public

employees move from job positions with the Los Angeles

Department of Water and Power (DWP) to the City of Los

Angeles (City), or vice versa. The Reciprocal Arrangement was in

effect from 1980 to 2013, but in 2013 DWP withdrew from it. The

City (one of the respondents) followed suit by adopting Ordinance

No. 182824 (the 2013 Ordinance), which suspended the

Reciprocal Arrangement. City employees and their unions 1 (the

petitioners, collectively City Employees) brought an action

against the City, asserting the 2013 Ordinance impairs and

1 This case was brought by the Coalition of City of Los

Angeles Unions, which represents current and former City

employees whose retirement benefits are administered by the Los

Angeles City Employees’ Retirement System—American

Federation of State, County, and Municipal Employees and its

Local Unions 741, 901, 2006, 2626, 3090, and 3672; International

Union of Operating Engineers, Local 501; Laborers International

Union of North America, Local 777; Los Angeles and Orange

County Building & Construction Trades Council; Service

Employees International Union, Local 721; and Teamsters Union

Local 911—as well as three individual City employees—Veronica

Salumbides, Albert Scott, and Charley Mims.

2

diminishes employees’ vested retirement benefits in violation of

the contract clause of the California Constitution. The City

Employees also argue the 2013 Ordinance violates other

provisions of the Los Angeles Administrative Code 2 by forcing

some employees to forfeit health benefits. In the published

portion of the opinion, we conclude the suspended terms of the

Reciprocal Arrangement were not vested rights and thus find no

constitutional violation by the City. In the unpublished portion,

we determine the City Employees have shown no violation with

respect to employee health benefits. We thus affirm the superior

court’s denial of the petition for writ of mandate.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Different Los Angeles City Retirement Plans

The City provides retirement benefits to its employees

through different retirement systems. One is the Los Angeles

City Employees’ Retirement System (LACERS), for City officers

and employees not included in any other retirement system. (Los

Angeles City Charter, §§ 1102, subd. (a), 1150.) 3 The Los Angeles

City Council (City Council) has exclusive authority, authorized by

the Charter, to establish or modify LACERS benefits through

ordinances. (Charter, § 1168.) LACERS benefits are codified in

sections 4.1000 et seq. of the Administrative Code. (Charter,

§ 1150.) The LACERS Board of Administration administers

these benefits. (Charter, §§ 1104, subd. (b), 1106.)

2 Undesignated section references are to the Los Angeles

Administrative Code.

3 Charter references are to the Los Angeles City Charter.

3

DWP provides retirement benefits through the Water and

Power Employees’ Retirement Plan (WPERP). (Charter, § 1180.)

DWP, along with the Departments of Airports and Harbor, is a

“Proprietary Department” within the City. (Charter, § 600,

subd. (a).) It operates autonomously and has independent

funding and a separate budget from the City. (Charter, § 603,

subd. (a).) The DWP Board of Administration governs its funding

and budget. (Charter, §§ 600, subd. (b), 603, subd. (b).) As the

City has regarding LACERS, DWP has the authority to modify

WPERP benefits, and the WPERP Board manages and

administers WPERP and its funds. (Charter, §§ 1104, subd. (c),

1106, 1186.)

B. The Development of the Reciprocal Arrangement Between

LACERS and WPERP

In 1975, the City Council acknowledged employees who

moved between the City and DWP could “suffer a decrease in

benefits” because an employee’s transfer of retirement system

membership triggered a new contribution rate based on the

employee’s age of entry into the second retirement system. That

amount could be “substantially greater than the original

contribution rate” under the previous retirement system.

To counteract the adverse effects, the City Administrative

Officer (CAO) recommended to the City Council’s Personnel and

Labor Relations Committee (Personnel Committee) a “reciprocal

benefits arrangement between the retirement systems.” The

CAO proposed an arrangement in which each retirement system

would be responsible for paying retirement benefits based upon

the “period of service for which retirement credit was earned with

each respective system,” using the employee’s highest

4

compensation earned and the combined years of service at the

City and DWP.

The CAO and the City Attorney determined the Charter

had to be amended before reciprocity could be implemented. In

1977, voters approved the Charter amendment, which allowed

WPERP to enter into a reciprocal agreement with LACERS

“relative to the benefits and contributions of employees who

transfer between the two systems.” The Charter amendment was

enabling only—the City Council, the WPERP Board, and the

DWP Board still had to approve any reciprocal agreement.

Throughout 1977 and 1978, the CAO, LACERS, and

WPERP worked out the details of a reciprocity agreement. In

early 1979, DWP presented an “alternative proposal for

reciprocity” providing the contributions and service credit of a

transferring employee would be transferred from one system to

the other. Every year, each system would determine “the amount

of member contributions which should have been deposited by

each transferring member. The system which receives less than

the required amount of contributions from transferring

employees would be made whole by the system the transferring

employees left.”

C. The Reciprocal Arrangement Between LACERS and

WPERP from 1980 to 2013

The Personnel Committee recommended the City Council

adopt DWP’s counterproposal “[i]n order to proceed toward the

goal of providing reciprocal retirement benefits between

[LACERS] and WPERP by providing at this time only certain

limited portability provisions.” In December 1979, the City

Council adopted Ordinance No. 153,294, codified as former

5

section 4.1060 of the Administrative Code. The preamble stated

the purpose of the ordinance was “to aid in the implementation of

a reciprocal retirement benefit arrangement between [LACERS]

and [WPERP] and to provide benefits for members of [LACERS]

transferring from [LACERS] to [WPERP] and vice versa.”

(Former § 4.1060.) The section became effective in February

1980. In 2013, it was renumbered as section 4.1095.

Section 4.1095, subdivision (b), states that, upon

transferring from DWP to a City department, an employee

immediately becomes eligible for membership in LACERS.

“Membership shall entitle the system member to all benefits for

retirement, disability and death for which he or she would qualify

based upon his or her total service in both the LACERS and the

WPERP.” Subdivision (d) provides that an employee may opt out

of the Reciprocal Arrangement. (§ 4.1095, subd. (d).) Unless the

transferring employee opts out, WPERP must transfer service

credits, along with the employee’s accumulated retirement

contributions, to LACERS. (§ 4.1095, subd. (e).)

Section 4.1095, subdivision (k), provides: “Reciprocity of

Benefit Provisions and Conditions Affecting this Section.

It is the intent and purpose of this section to provide, or help to

provide, portability between the LACERS and the WPERP. The

achievement of complete portability of benefits is dependent upon

appropriate action by the governing body of the WPERP. Should

the implementation of any provisions of this section be possible

only if some specific action is taken by the WPERP, then, and as

to such provisions only, the effect of this section shall be

suspended until appropriate action has been taken by the

WPERP.”

6

Under the Reciprocal Arrangement, employees who moved

between the City and DWP (in either direction) could transfer

employee pension contributions and interest (but not the

employer’s contributions) to their new pension plan. (§ 4.1095,

subd. (e).) The new pension plan had to recognize all service

credit earned by the employee under the former system and

assume any associated pension liability. Employees contributed

at the same retirement contribution rate before and after their

transfers. When employees retired, their most recent pension

plan paid all their benefits, which were calculated based on the

employees’ total years of service in both LACERS and WPERP

and the last highest 12 months of salary.

When the City and DWP devised the Reciprocal

Arrangement, they anticipated that the number of employees

transferring from the City to DWP and from DWP to the City

would be roughly the same. Between 1980 and 1991, the

Reciprocal Arrangement required LACERS and WPERP to

calculate every year whether transfers into their plans were over-

or under-funded and to bill the other plan accordingly. (Former

§ 4.1060, subd. (13).) This “annual adjustment” was included to

protect the plans from “massive differences in employee

contribution rates.” In 1991, however, LACERS determined that

the cost of performing the calculations outweighed the benefits of

recouping the small amounts actually billed, mostly because of

the near parity of employees transferring in either direction. In

1993, the City removed the annual adjustment provision from the

Administrative Code, thus eliminating the mechanism for

correcting funding imbalances between LACERS and WPERP.

7

D. WPERP’s Suspension of Reciprocity and the Romero

Litigation

In approximately 2009, amid the “Great Recession,” the

City began encouraging employees to transfer to DWP and other

Proprietary Departments as a way to address a budgetary crisis

and avoid City layoffs. In 2010, in response to a concern that

more employees were transferring from the City to DWP than in

the other direction, the WPERP Board commissioned a study to

determine the financial impact of the Reciprocal Arrangement.

The study found that, between April 2004 and March 2010, 1,623

employees transferred from the City to DWP, but only 270

employees transferred from DWP to the City. As a result,

WPERP’s unfunded liability had increased by approximately

$183 million, while LACERS experienced a comparable decrease.

In May 2010, the WPERP Board voted to suspend the

Reciprocal Arrangement for all employees transferring from the

City to DWP while it examined the situation further. In October

2010, the City Council voted to veto the WPERP Board’s

suspension.

In November 2010, WPERP filed suit in Los Angeles

Superior Court to enjoin the City Council from refusing to

recognize the WPERP Board’s suspension of the Reciprocal

Arrangement. (See Romero, et al. v. City Council of the City of

Los Angeles, et al. (2013, No. BC449834) (Romero).) The City

Employees and LACERS were not parties to the Romero lawsuit

and did not seek to intervene.

The City demurred on the grounds that WPERP lacked

standing and the Reciprocal Arrangement between LACERS and

WPERP was a retirement benefit that only the City, through

legislative action, could implement or remove. In December

8

2012, the trial court overruled the City’s demurrer. The City

filed a petition for writ of mandate asking this court to overturn

the trial court’s decision.

We denied the City’s writ petition. (City of Los Angeles v.

Superior Court of Los Angeles County et al. (Nov. 19, 2013,

B246933) [nonpub. opn.].) In doing so, we rejected the City’s

assertion that “reciprocity in this case is the kind of retirement

benefit with respect to which only the City, and not WPERP (or

LACERS), can take action.” Rather, we determined the City

failed to demonstrate reciprocity was a “benefit” to which

members of WPERP or LACERS were entitled. We determined

the applicable Administrative Code provision (then section

4.1060, later renumbered as section 4.1095) “indicates that

reciprocity is not a retirement benefit granted by the City, but

rather it is an agreement between the City and WPERP

authorizing portability of retirement benefits.” We also noted

that “[r]eciprocity was not established solely by the City Council

as the City’s legislative body, but rather it required the approval

of WPERP.” 4

The City and WPERP subsequently settled the Romero

litigation, and the City agreed to suspend the Reciprocal

Arrangement between LACERS and WPERP. Respondent

4 No doubt recognizing the City Employees were not a party

to or in privity with any party to the Romero litigation,

respondents do not argue any of our holdings in Romero should

be given collateral estoppel effect here. (See DKN Holdings LLC

v. Faerber (2015) 61 Cal.4th 813, 824 [collateral estoppel applies

“against one who was a party in the first suit or one in privity

with that party”]; accord, Cruz v. City of Merced (2023)

95 Cal.App.5th 453, 471.)

9

International Brotherhood of Electrical Workers, Local 18 (Local

18), the exclusive bargaining representative of about 9,500 DWP

employees and interveners in this case, was a party to the

settlement.

One of the settlement terms was that “[f]or each member

who moves from a position covered by WPERP to a position

covered by LACERS or from a position covered by LACERS to a

position covered by WPERP after the effective date of the

amendment to suspend [the Reciprocal Arrangement], each

retirement plan (WPERP and LACERS) will be fiscally

responsible only for the years of service and final average salary

the member earned while a member of that retirement plan.”

The settlement also provided employees would be able to

purchase time served with the other system at “full actuarial

value.”

E. The 2013 Ordinance’s Suspension of Reciprocity

In December 2013, the City adopted the 2013 Ordinance “to

suspend reciprocity between [LACERS] and [WPERP], and to

make related changes.” Among other changes, the 2013

Ordinance (effective January 1, 2014) enacted new subdivision (l)

to existing section 4.1095, which provides: “Suspension of the

Reciprocal Retirement Arrangement. Employees who

change employment from the DWP to other positions with the

City that make them eligible for membership in LACERS on or

after January 1, 2014, shall not be eligible to participate in the

reciprocal retirement arrangement established in this section.

Reciprocity on the terms and conditions set forth in this section

shall only be provided to those employees who changed

employment from the DWP to other positions with the City that

10

made them eligible for membership in LACERS prior to

January 1, 2014.”

As a result of the 2013 Ordinance, employees who transfer

from WPERP to LACERS after January 1, 2014 are ineligible for

a transfer of benefits under the Reciprocal Arrangement.

Depending on the LACERS tier into which they fall, transferring

City employees may not receive credit from LACERS for their

prior WPERP service. (See §§ 4.1080.5, subd. (c), 4.1080.6,

subd. (c), 4.1080.7, subd. (b), 4.1080.8, subd. (k).)

F. Trial Court Proceedings

In December 2016, the City Employees filed a verified

petition for writ of mandate, 5 with causes of action against the

City and LACERS, among others not relevant to this appeal, for

(1) the unconstitutional impairment of vested contractual rights

in violation of the California Constitution, and (2) the violation of

sections 4.1102 and 4.1111 by “Respondents’ use of vested retiree

health Employee Contributions to pay for retirement, disability

retirement and/or survivorship benefits by transferring

employees.” The City Employees alleged “LACERS members

have vested contractual rights to receive, and LACERS has a

ministerial duty to pay, full career City service retirement

benefits calculated at the employees’ final compensation and

retiree health benefits from LACERS for the employees’

aggregate City service with both the DWP and in LACERS-

5 A petition for writ of mandate under Code of Civil

Procedure section 1085 “is proper where . . . the claim is that an

agency has failed to act as required by law.” (California Assn. for

Health Services at Home v. State Dept. of Health Services (2007)

148 Cal.App.4th 696, 705.)

11

covered positions.” The City Employees did not challenge

WPERP’s authority to suspend reciprocity or make any claim

against WPERP or DWP. No evidence was submitted that

employees were induced into working for the City or DWP based

on the promise of reciprocity or portability of their pension

benefits.

In September 2021, the trial court granted Local 18’s

motion to intervene. Local 18 requested the court deny the

petition, arguing that the opportunity to transfer between the

WPERP and LACERS retirement systems was not a “vested”

right protected by the constitutional contract clause, and even if

it were, the City’s elimination of that benefit was not an

unconstitutional impairment of employees’ vested pension rights.

In May 2022, the court denied the petition. Relevant here,

the court found that the City Employees had failed to establish

that they had a vested contractual right to the Reciprocal

Arrangement that was protected by the California Constitution.

The court also found there was no evidence to support the City

Employees’ claim that their 4 percent contributions toward

retiree health benefits were being improperly applied to pension

benefits in violation of sections 4.11021 and 4.1111.

In July 2022, the trial court entered judgment in favor of

the City, LACERS, and Local 18. The City Employees’ appeal

was dismissed with prejudice as to LACERS under a stipulation

between the City Employees and LACERS, leaving only the City

Employees’ claims against the City to be addressed on appeal.

The City Employees timely appealed. Respondents are the

City and Local 18.

12

DISCUSSION

A. The City Employees Do Not Have Vested Rights to the

Terms of the Reciprocal Arrangement

The City Employees assert that for those employees who

initiated employment with DWP during the period that the

Reciprocal Arrangement was in effect, from 1980 to 2013, an

implied contract was formed guaranteeing that the pensions

owed would not lose value as a result of their transferring from

DWP to the City. The City Employees contend they had

constitutionally protected, vested rights to these terms of the

Reciprocal Agreement. However, the diminished rights about

which they complain are not their rights to the pension benefits,

but rather to the terms of the Reciprocal Arrangement, which

were not constitutionally guaranteed.

1. The scope and effect of the 2013 Ordinance

The 2013 Ordinance, which suspended the Reciprocal

Arrangement when it took effect on January 1, 2014, was not

retroactive. Retirees or current employees who transferred

between DWP and the City prior to January 1, 2014 (but not

after), or continued working in the same position with no such

transfers, would not experience any change in pension benefits as

a result of the 2013 Ordinance. The suspension of reciprocity

under the 2013 Ordinance would impact only the pensions of

those employees who transfer between DWP and the City, or vice

versa, after January 1, 2014.

The suspension of reciprocity could affect such employees in

several important ways. For instance, because total years of

service credit is a multiplier in the benefits calculation, years

spent at one department would have previously combined with

13

years at the other to create a larger multiplier. However,

following the suspension of the Reciprocal Arrangement, WPERP

service cannot be used for calculating an employee’s LACERS

benefit allowance unless the member purchases WPERP credit.

(§ 4.1007, subd. (d).) As a result, employees who transferred after

January 1, 2014, and halfway through their career, could

experience a more than $1,000 per month reduction in a WPERP-

LACERS combined retirement allowance because of the 2013

Ordinance. The City Employees submitted evidence that one of

the individual plaintiffs will receive $29,000 less per year in

retirement benefits as a result of the suspension of the Reciprocal

Arrangement. In addition, although employees transferring to

LACERS from DWP after January 1, 2014 may purchase credits

for their prior WPERP service, as a result of the 2013 Ordinance,

employees would have to pay for both the employee and employer

contributions. (§ 4.1020.1, subds. (a)-(c).) The 2013 Ordinance

estimates that two years of WPERP credit would cost $60,000 for

an employee earning $100,000 annually. (§ 4.1020.1, subd. (c).)

2. Applicable law and standards of review

The City Employees’ claim is founded on the concept of

vested rights. “The vested rights doctrine . . . is grounded in the

constitutional contract clause.” (Cal Fire Local 2881 v. California

Public Employees’ Retirement System (2019) 6 Cal.5th 965, 976-

977 (Cal Fire).) The California Constitution, which provides that

a “law impairing the obligation of contracts may not be passed”

(Cal. Const., art. I, § 9), “prohibit[s] the enactment of laws

effecting a ‘substantial impairment’ of contracts, including

contracts of employment.” (Cal Fire, at p. 977; see Fry v. City of

Los Angeles (2016) 245 Cal.App.4th 539, 548 (Fry) [“The contracts

clause limits the power of public entities to, by enacting a law,

14

unilaterally modify their own contracts with other parties.”].)

But “not every legislative impairment of contractual relations

triggers the contract clause.” (Alameda County Deputy Sheriff’s

Assn. v. Alameda County Employees’ Retirement Assn. (2020)

9 Cal.5th 1032, 1075 (Alameda County).)

Unlike private employment, the terms and conditions of

public employment are generally established by statute rather

than by contract. (Cal Fire, supra, 6 Cal.5th at p. 977.)

Consequently, most terms and conditions of public employment,

including compensation and benefits, are not protected by the

contract clause and may be “ ‘modified or reduced by the proper

statutory authority.’ ” (Ibid.; see Hinchliffe v. City of San Diego

(1985) 165 Cal.App.3d 722, 725 [“Public employment, by and

large, is not held by contract, but by statute,” and thus the public

employee “can have no vested contractual right in the terms of his

or her employment, such terms being subject to change by the

proper statutory authority.”].) “Contract clause protection of the

terms and conditions of public employment historically has been

the exception, rather than the rule.” (Cal Fire, at p. 977.) In this

context, “vested rights” are those terms and conditions of public

employment that are protected from impairment by the contract

clause. (Ibid.)

Public employees’ pension rights are considered vested

rights. (Cal Fire, supra, 6 Cal.5th at pp. 979, 983; accord,

Alameda County, supra, 9 Cal.5th at p. 1074 [“The terms of

public employee pensions are protected by the constitutional

contract clause.”].) “[T]hrough his or her service, a public

employee acquires a constitutionally protected implied

contractual right to receive statutory pension benefits upon

15

retirement.” (Cal Fire, at p. 983.) 6 “Upon accepting public

employment, one acquires a vested right to a pension based on

the system then in effect, and to additional pension benefits

conferred during his or her subsequent employment.” (Protect

Our Benefits v. City and County of San Francisco (2015)

235 Cal.App.4th 619, 628; accord, Fry, supra, 245 Cal.App.4th at

p. 550.)

The rationale for the constitutional protection of pension

benefits, despite their statutory foundation, is that they are a

form of deferred compensation. (Cal Fire, supra, 6 Cal.5th at

pp. 983-985.) A public employee “ ‘is not fully compensated upon

receiving his salary payments because, in addition, he has then

earned certain pension benefits, the payment of which is to be

made at a future date.’ ” (Id. at pp. 984-985; accord, Kern v. City

of Long Beach (1947) 29 Cal.2d 848, 855 (Kern).) The objective of

offering a pension—“to induce competent persons to enter and

remain in public employment”—“would be thwarted if a public

employee could be deprived of pension benefits, and the promise

of a pension annuity would either become ineffective as an

inducement to public employees or it would become merely a

6 There are two ways vested rights are created: (1) “when the

statute or ordinance establishing the benefit and the

circumstances of its enactment clearly evince a legislative intent

to create contractual rights,” and (2) when courts have

determined certain benefits (primarily pension rights) are vested

rights “by implication, even in the absence of a clear

manifestation of legislative intent.” (Cal Fire, supra, 6 Cal.5th at

pp. 978-979.) The City Employees rely on the second way and

eschew any reliance on the first means of establishing that a

vested right is at issue here.

16

snare and a delusion to the unwary.” (Kern, at p. 856.)

“ ‘While payment of these [pension] benefits is deferred,

and is subject to the condition that the employee continue to

serve for the period required by the statute, the mere fact that

performance is in whole or in part dependent upon certain

contingencies does not prevent a contract from arising, and the

employing governmental body may not deny or impair the

contingent liability any more than it can refuse to make the

salary payments which are immediately due.’ ” (Cal Fire, supra,

6 Cal.5th at p. 986.) “ ‘Such a pension right may not be

destroyed, once vested, without impairing a contractual

obligation of the employing public entity.’ ” (Id. at p. 983; see,

e.g., Kern, supra, 29 Cal.2d at pp. 852-853, 855-856 [firefighter

had a vested right to his pension earned through work already

performed, and city could not, shortly before the firefighter was

going to retire, eliminate pensions]; United Firefighters of Los

Angeles City v. City of Los Angeles (1989) 210 Cal.App.3d 1095,

1101 [charter amendment imposing cap on cost of living

adjustments for pension benefits impaired pension right];

California Teachers Assn. v. Cory (1984) 155 Cal.App.3d 494, 506

[state may violate the contract clause by failing to fulfill its

statutory obligation to make continuing contributions to its

employees’ retirement fund so as to preserve the actuarial

soundness of the fund].)

Whether an employee benefit related to a pension “is a

benefit of employment protected by the constitutional contract

clause—that is, whether it is a vested right—is a question of law

subject to our independent review.” (Cal Fire, supra, 6 Cal.5th at

p. 976; accord, Board of Administration v. Wilson (1997)

52 Cal.App.4th 1109, 1129.) The interpretation of a municipal

17

ordinance or charter is also a legal issue subject to de novo

review. (Fry, supra, 245 Cal.App.4th at p. 549; see Zubarau v.

City of Palmdale (2011) 192 Cal.App.4th 289, 305 [“ ‘Statutory

construction is a question of law for the courts and the rules of

statutory construction applicable to statutes are also applicable

to local ordinances.’ ”].)

If a legislative action is deemed to modify vested pension

rights, courts then employ the “California Rule” to determine if

the modification nevertheless survives contract clause scrutiny.

Under the California Rule, “ ‘[a]n employee’s vested contractual

pension rights may be modified prior to retirement for the

purpose of keeping a pension system flexible to permit

adjustments in accord with changing conditions and at the same

time maintain the integrity of the system. [Citations.] Such

modifications must be reasonable. . . . To be sustained as

reasonable, alterations 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.” (Alameda County, supra, 9 Cal.5th

at pp. 1076-1077.)

3. The portability terms under the Reciprocal

Arrangement were not protected as deferred

compensation or because they affected pension benefits

The City Employees contend “the City’s requirement [under

the Reciprocal Arrangement] that LACERS credit its members

for service performed at DWP conferred upon such employees

increased deferred compensation” that is entitled to

constitutional protection. (See Cal Fire, supra, 6 Cal.5th at

p. 985 [pension benefits are protected by the contract clause

18

“[g]iven their character as deferred compensation”]; Alameda

County, supra, 9 Cal.5th at p. 1077 [“It is the nature of pension

rights as deferred compensation that caused Kern to hold them

protected under the contract clause.”].) Cal Fire is instructive in

evaluating whether we should treat the terms under the

Reciprocal Arrangement as “deferred compensation” such that

the City Employees had a vested right to them.

In Cal Fire, the plaintiffs argued a statute allowing state

employees to buy up to five years of additional retirement service

credit (and thus boost their pension benefits) created a vested

right to purchase the credit. (Cal Fire, supra, 6 Cal.5th at

pp. 969-971.) The Supreme Court first clarified that the rights of

employees who had already purchased the service credit were not

at issue because those employees “remain[ed] in precisely the

same position as they were prior to [the statute’s enactment].”

(Id. at p. 981.) Instead, the court framed the asserted vested

right as the opportunity to purchase the service credit. (Ibid.)

The court rejected the theory that the opportunity to

purchase service credit was a form of deferred compensation akin

to the pension benefits themselves. (Cal Fire, supra, 6 Cal.5th at

pp. 986-987.) The court emphasized that “pension benefits, the

classic example of deferred compensation, flow directly from a

public employee’s service, and their magnitude is roughly

proportional to the time of that service. . . . [P]ension benefits

are, literally, earned by an employee’s work.” (Id. at p. 986.) In

contrast, the opportunity to purchase service credit was available

to every employee who had worked for at least five years and, if

not taken advantage of, expired upon an employee’s retirement or

termination. (Id. at pp. 986-987.) Further, “the amount of an

eligible employee’s service was entirely irrelevant to his or her

19

exercise of the opportunity,” as a lengthier period of service did

not increase the amount of service credit an employee could

purchase. (Id. at p. 987.) The opportunity to purchase service

credits was “not different in form from a variety of other optional

benefits offered to public employees in connection with their

work”—including the opportunity to purchase health, life, or

long-term disability insurance or create a flexible spending

account—that were not protected under the contract clause.

(Ibid.)

Similarly, the Reciprocal Arrangement did not grant the

City Employees the rights to a form of deferred compensation

akin to pension benefits. Unlike pension benefits, for which “a

critical determinant is an employee’s term of public employment”

(Cal Fire, supra, 6 Cal.5th at p. 987), here “the amount of an

eligible employee’s service was entirely irrelevant to his or her

exercise of the opportunity” to avail herself of the perks under the

Reciprocal Arrangement (ibid.). The opportunity to transfer

between DWP and the City and to take advantage of reciprocity

between their pension systems was available to employees

regardless of years of service. Thus, unlike pension benefits, the

opportunity to avail oneself of the terms of the Reciprocal

Arrangement is not proportional to years of service, a hallmark of

deferred compensation. (Cf. id. at p. 985 [“the receipt of pension

benefits is granted constitutional protection because the benefits

constitute a portion of the compensation awarded by the

government to its employees, paid not at the time the services are

performed but at a later time”]; City of San Jose v. Howard

Jarvis Taxpayers Assn. (2024) 101 Cal.App.5th 777, 797 [“the city

has an obligation to pay future pension benefits to its current and

former employees, who have already earned them”], review

20

granted Aug. 14, 2024, No. S285426.)

The City Employees suggest that the revocation of the

Reciprocal Arrangement “undermine[d] the retirement value of

work already performed by City employees,” which distinguishes

this case from Cal Fire where the benefits at issue, the

opportunity to purchase service credits, “had not been earned as

a component of the employees’ compensation.” They assert that if

employees transfer from DWP to the City after January 1, 2014,

their pension benefits earned at DWP prior to 2014 will be

“devalued” as a result of the 2013 Ordinance. The fallacy of the

City Employees’ argument is that the 2013 Ordinance does not

affect an employee’s pension benefits in any way unless the

employee chooses to transfer after January 1, 2014. 7 The City

Employees receive the same retirement credits at DWP for their

past work there as before the 2013 Ordinance—they just cannot

transfer them, unless they purchase the requisite employer and

employee contributions. While the City Employees assert that

advancing along certain career paths sometimes requires moving

between DWP and other City departments, they concede

employees do not have a constitutionally protected right to

transfer between DWP and the City. And even assuming the

City Employees are correct that employees could face a choice of

either being laid off or involuntarily transferred, 8 a public

7 Of course, an employee’s ability to transfer is not

guaranteed, and depends on various factors such as department

needs and the employee’s qualifications.

8 As the superior court noted, the argument employees may

be involuntarily transferred lacks support. On appeal, the City

Employees cite two pieces of evidence. First, they point to the

21

employee “ha[s] no constitutionally protected right to continue in

his position . . . in order to receive a larger retirement allowance.”

(Miller v. State of California (1977) 18 Cal.3d 808, 817 (Miller);

see Summers v. City of Cathedral City (1990) 225 Cal.App.3d

1047, 1065 [“there is no contractual right to the continuation of

public employment”]; see also Kern, supra, 29 Cal.2d at p. 853 [no

“right to tenure” in the absence of special provision].) Thus, if

employees choose to transfer, we cannot say any vested right has

been impaired. 9

declaration of an employee who notes that career promotions may

involve transfers between the City and DWP. But the employee

also states there is a pathway for his career that does not require

such a transfer. Second, the City Employees refer to provisions of

the Charter that allow for temporary appointments in

emergencies and provide for “bumping” employees with less

seniority to avoid layoffs, “which can have a cascading effect of

employees changing positions and departments.” (Charter,

§§ 1013, 1015.) However, there is no evidence that these

provisions have ever resulted in transfers between the City and

DWP or that such transfers have had any lasting impact on

pension benefits.

9 The City Employees suggest that we should treat the terms

of the Reciprocal Arrangement as vested rights because DWP is a

department that is part of the City of Los Angeles, and thus the

transfers at issue involve “multiple retirement systems for a

single employer.” They provide no authority to support their

argument, which in any event is not well-taken. DWP is a

“Proprietary Department” of the City that is funded

independently and operates autonomously and separately from

other City departments. (Charter, §§ 600, subd. (a), 602, 603.)

Each of the respective boards for LACERS and WPERP has the

“sole and exclusive responsibility to administer its system . . . to

22

Miller is particularly instructive here. In Miller, a state

employee plaintiff challenged a statute that reduced the

mandatory retirement age for his employment category from 70

to 67. (Miller, supra, 18 Cal.3d at p. 811.) Because the plaintiff

had to retire at 67, he lost the opportunity to work several more

years and thus achieve the maximum pension benefit that he

previously would have been able to obtain. (Id. at p. 812.) The

Supreme Court examined whether “the reduction in the

mandatory age of retirement impair[ed] a vested right of plaintiff

to qualify for a larger monthly pension based on service until the

age of 70.” (Id. at p. 811.)

The Supreme Court concluded the reduction in the

mandatory age of retirement did not “work an impairment of any

vested right.” (Miller, supra, 18 Cal.3d at pp. 815, 817.)

“Although his right to a pension based on this system was

vested,” his right to receive such benefits was subject to the

condition that he remain in state employment until age 70. (Id.

at p. 817) “Plaintiff failed to satisfy that condition since he was

lawfully placed on retirement at age 67. Thus, his right to a

maximum pension based on retirement at age 70 never matured.”

(Ibid.) Plaintiff did not have a vested right to the maximum

pension benefit because he “had no vested contractual right to

continue working for any specified period of time.” (Ibid.) His

provide benefits to system participants.” (Charter, § 1106,

subd. (a)(1).) The fact that these separate retirement systems are

both under the umbrella of the City of Los Angeles does not

provide a basis to treat DWP and the City as a “single employer,”

much less to conclude either LACERS or WPERP members have

a vested right to transfer between DWP and the City without any

effect on their pension.

23

“loss of pension benefits resulted not from an impairment of his

vested rights, but from the occurrence of a condition subsequent

to the accrual of those rights,” i.e., the Legislature’s reduction of

the age of retirement that “defeated [plaintiff’s] expectation of . . .

a larger retirement allowance.” (Id. at pp. 816-817; see also Kern,

supra, 29 Cal.2d at p. 853 [“The fact that a pension right is vested

will not, of course, prevent its loss upon the occurrence of a

condition subsequent such as lawful termination of employment

before completion of the period of service designated in the

pension plan.”].)

Miller aptly demonstrates that a legislative change that

has the effect of lowering expected pension benefits does not

necessarily amount to an impairment of vested rights. In Cal

Fire, the Supreme Court relied on Miller in holding that a “term

and condition of public employment that is otherwise not entitled

to protection under the contract clause does not become entitled

to such protection merely because it affects the amount of an

employee’s pension benefit.” (Cal Fire, supra, 6 Cal.5th at p. 992;

see id. at p. 990 [“We have never held . . . that a particular term

or condition of public employment is constitutionally protected

solely because it affects in some manner the amount of a

pensioner’s benefit.”].) That the cessation of the Reciprocal

Arrangement could affect pension benefits that accrued for pre-

2014 service is thus not sufficient to find the employees had a

vested right to the terms of the Reciprocal Arrangement.

We conclude any rights employees had under the

Reciprocal Arrangement were not vested rights, and the City

Council could modify those terms as it did in adopting the 2013

24

Ordinance. 10 (See Piombo v. Board of Retirement (1989)

214 Cal.App.3d 329, 339 [“to the extent respondent had a ‘right’

to redeposit and thereby reinstate his pension rights, that right

was statutory in nature and . . . [was] subject to modification by

the Legislature or proper statutory authority. . . . The fact that

[the Legislature’s exercise of its power] defeated his expectation

of having an option to reinstate pension rights . . . did not result

in any impairment of his vested rights”].) Because the City

Employees have not established a vested contractual right, the

question whether the 2013 Ordinance and suspension of the

Reciprocal Arrangement worked an unconstitutional impairment

of such rights “does not arise,” and we need not reach whether

the 2013 Ordinance would pass muster under the California

Rule. (Cal Fire, supra, 6 Cal.5th at p. 995; see Miller, supra,

18 Cal.3d at p. 818 [where court concluded plaintiff suffered no

impairment of vested rights, court “need not undertake the

analysis” whether changes in the state’s pension system were

reasonable].)

B. The 2013 Ordinance Does Not Violate Sections 4.1102 and

4.1111

In addition to retirement benefits, LACERS provides

healthcare benefits to retired employees with at least 10 years of

City service. (§§ 4.1080.7, subd. (a), 4.1111 subds. (d), (e).) The

City Employees assert that the 2013 Ordinance, specifically

section 4.1020.1, “requires employees to forfeit retiree healthcare

10 We need not reach respondents’ alternative argument that

the terms of the Reciprocal Arrangement were not vested rights

because they were contingent on DWP’s continued participation

in the arrangement.

25

benefits rights when employees use their 4% of vested employee

retiree health contribution funds to purchase WPERP service

credit,” purportedly in violation of sections 4.1102 and 4.1111.

We now lay out the highly technical provisions relied on by

the City Employees to make their argument, but note the City

Employees have forfeited their claim by failing to provide a

cogent argument regarding how the interplay between these

provisions led to violations of some employees’ rights. 11 (County

of Sacramento v. Singh (2021) 65 Cal.App.5th 858, 861 [“we may

treat a point that is not supported by cogent legal argument as

forfeited”]; accord, Cahill v. San Diego Gas & Electric Co. (2011)

194 Cal.App.4th 939, 956.) Moreover, from what we can glean of

their argument, its premise is incorrect, because there is no

showing employees were required to use their healthcare

contribution funds for an improper purpose.

Section 4.1020.1 permits LACERS members to purchase

credit for periods of service with DWP. If a member has

contributions on deposit with WPERP, the member must

authorize a transfer of those contributions to LACERS to be

credited towards payment of the service credit. (§ 4.1020.1,

subds. (a), (d)(1).) Section 4.1020.1, subdivision (b), provides,

“Service purchased under this section shall not count as service

or service credit for the purpose of qualifying for any benefits

11 In their reply brief, the City Employees concede “the

discussion of this issue in their Opening Brief included errors.”

They state they “attempt[ed] to more clearly set forth [their]

position” on reply, but it does not appear they were successful,

because they cite incorrect code sections and still do not set forth

a comprehensible argument.

26

provided in [section 4.111],” i.e., a healthcare benefit. (See

§ 4.111.)

Section 4.1003, subdivision (c)(2), requires certain members

to “contribute by salary deduction to the Retirement Fund an

additional four percent (4%) of the member’s compensation

earnable retroactive to July 1, 2011.” In return, they “shall

receive the [healthcare] benefit set forth in Section 4.111(c).”

(§ 4.1003, subd. (c).)

Within the LACERS fund is a separate health benefits

account that “shall only be used for” healthcare and medical

benefits, and its assets “may not be used for retirement . . .

benefits.” (§ 4.1102, subds. (a), (d), (e).)

The City Employees’ argument appears to rest on the

assumption that under section 4.1003, subdivision (c), a member

must contribute 4 percent of transferred WPERP credits toward

healthcare benefits (i.e., benefits under § 4.1111, subd. (c)), while

the 2013 Ordinance (§ 4.1020.1, subd. (b)) simultaneously

prevents those credits from going toward healthcare benefits.

The City Employees also argue the 2013 Ordinance requirement

that an employee contribute 4 percent of transferred WPERP

credits towards healthcare benefits violates the requirement of

section 4.1102 that contributions towards retiree healthcare

benefits shall only be used for the payment of healthcare benefits

and not for retirement benefits.

However, section 4.1003, subdivision (c), requires

employees to contribute 4 percent “of the member’s compensation

earnable” “by salary deduction.” (§ 4.1003, subd. (c)(2), italics

added.) The statute defines “compensation earnable” as “[t]he

full salary, wage or compensation established for any position or

office in the City service for the particular period involved in any

27

calculation required.” (§ 4.1001, subd. (a).) The neighboring

subsections repeatedly reference salary deductions when

discussing compensation contributions. (See § 4.1003, subd. (c).)

Therefore, section 4.1003, subdivision (c), requires an

employee to contribute 4 percent of the employee’s salary by

deduction, not 4 percent of purchased retirement credits. Nor do

the City Employees cite any evidence to support their claim that

employees must forfeit their contributions toward healthcare

benefits to purchase WPERP credit. The City Employees failed

to show that members’ contributions toward retiree health

benefits were being improperly applied to pension benefits in

violation of the Administrative Code.

DISPOSITION

The judgment is affirmed. The City Employees and Local

18 are entitled to recover their costs on appeal.

STONE, J.

We concur:

MARTINEZ, P. J.

SEGAL, J.

28

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.