Pomona Police Officers' Association v. City of Pomona

In Pomona Police Officers' Association v. City of Pomona (1997) 58 Cal.App.4th 578, the court refused to order PERS to validate a retirement conversion option contained in the collective bargaining agreement between the association and the city which permitted an eligible employee to convert the employer-paid salary-addition employee contribution to salary for retirement purposes. The collective bargaining agreement was entered into in 1993 and provided that effective September 1, 1991, certain senior police officers had the option "to convert their 9-percent City-paid PERS member contribution to 9-percent salary for retirement purposes." ( Id. at p. 582.) The higher salary only applied to service retirements, not disability or industrial disability retirements. The conversion was a "one-time option and cannot be revoked . . . without specific written approval by the City Administrator." ( Id. at p. 583.) The resulting higher salary could not be applied to vacation, compensatory, or sick leave payoff, sick leave buy-back or the sick leave conversion plan. (Ibid.) The association conceded that an employer-paid salary-addition employee contribution could not be reported to PERS as compensation under the PERL. But it contended that the exercise of the conversion option transformed the contribution into an employer-paid salary-deduction employee contribution and was therefore includable in compensation. It argued when the option was exercised, "an employee prospectively relinquishes a salary addition in exchange for a salary increase and corresponding salary deduction, and therefore legitimately increases his or her compensation for retirement purposes." ( Id. at pp. 585-586.) The court found the conversion was "simply an attempt to convert excluded compensation into included compensation for retirement purposes at no substantial cost." ( Id. at p. 587.) It illustrated its reasoning as follows: An employee earning $ 50,000 per year would be required to make a $ 4500 yearly contribution to PERS. If the employer "picks up" the employee's contribution and, in the year prior to retirement, the employee elects to convert the "pick up" to salary, the yearly salary increases to $ 54,500. "If the conversion is effective for retirement purposes, the employee's retirement allowance will be based on $ 54,500. However, it is only following exercise of the retirement conversion option that contributions to the pension plan will be based on the increased salary ($ 54,500). For all prior years, the contributions are based on the lower salary ($ 50,000). Thus, the employee's retirement benefit will have been underfunded. The net effect is that the employer is able to provide its employees with an increased retirement benefit without bearing the cost of the increase." ( Id. at pp. 586-587.) The court characterized the device as "blatant pension abuse at the expense of PERS and its other participants." ( Id. at p. 587.)