Wednesday, August 4, 2010
Appeals Court Rejects Judge’s Bid to Boost His Pension Benefits
Judicial Retirement System, Los Angeles City System Lack Reciprocity, Panel Rules
By STEVEN M. ELLIS, Staff Writer
Judges who retire under both the Judicial Retirement System and the Los Angeles City Employees’ Retirement System are not entitled to have their city benefits calculated using their highest salary earned under either one, this district’s Court of Appeal held yesterday.
Div. One ruled 2-1 that the systems do not have reciprocity provisions that would allow Los Angeles Superior Court Judge Abraham Khan, who worked in the Los Angeles City Attorney’s Office before joining the bench, to retire from the city benefit system at his higher judicial salary.
Khan, who left the office in 1988 when he was appointed to the now-defunct Citrus Municipal Court, in 2007 requested a writ compelling LACERS to approve his request for concurrent deferred retirement benefits with the judges’ system after the city system told him he was ineligible.
State law allows public employees who retire and accept a position with another public employer to defer retirement benefits from the first employer until retiring from the second employer, and to then collect benefits from both based on the highest salary earned so long as the two systems have a reciprocity agreement in place.
Seeking to make the city system, upon his retirement, pay him benefits based upon the highest salary he earned as a judge, Khan argued that LACERS established reciprocity with the state’s Public Employees Retirement System when it opted in, and therefore had reciprocity with all other systems having reciprocity with CalPERS pursuant to statutes governing it and county and city retirement systems. He also claimed that Assembly Bill 1099, which amended Government Code Sec. 20639 in 2001 and mandated that JRS and other systems be included in CalPERS, specifically extended reciprocity from JRS to LACERS retroactively.
The City of Los Angeles countered that reciprocity under LACERS was extended only to retirement systems which agreed to provide reciprocal benefits, and that reciprocity did not exist because JRS did not grant reciprocal benefits to PERS members.
Orange Superior Court Judge Geoffrey T. Glass granted Khan’s petition. Glass—who was assigned to hear the case by the chief justice after then-Los Angeles Superior Court Presiding Judge J. Stephen Czuleger in April 2008 issued an order recusing all Los Angeles Superior Court judges—found that LACERS had reciprocity with PERS.
However, Justice Jeffrey W. Johnson wrote for the Court of Appeal yesterday that Glass’ reasoning “contained a logical flaw,” explaining:
“[U]nder the statutory scheme as currently constructed, to obtain full reciprocity with PERS, [JRS] must comply with section 20351 and enter into an agreement with PERS that provides PERS members with the same rights and benefits from [JRS] that PERS gives members of those systems. If the legislature intended to create true reciprocity between [JRS] and PERS by statute without the necessity of an agreement bringing them within sections 20351 and 20353, it presumably would have amended [the Public Employees Retirement Law] to explicitly grant such reciprocity.”
Justice Frances Rothschild joined Johnson in his opinion, but Presiding Justice Robert M. Mallano dissented. Employing a syllogism to demonstrate his view that “judges who retire under both JRS and LACERS are entitled to have their LACERS retirement benefits calculated at their highest salary under the systems,” he wrote:
“JRS earnings are treated as PERS earnings (§ 20639).
“Retirees from both PERS and LACERS are entitled to have their retirement benefits calculated at their highest salary earned under the systems (per agreement between PERS and LACERS).
“Ergo, judges who retire under both JRS and LACERS are entitled to have their LACERS retirement benefits calculated using their highest salary under the systems.” (italics in original.)
Khan’s counsel, Saskia Tsushima Asamura of Richards Watson & Gershonin Los Angeles, could not be reached for comment. A spokesperson for the Los Angeles City Attorney’s Office said the office agreed with the court’s decision and was “pleased with the result,” but he declined further comment.
The case is Khan v. Los Angeles City Employees Retirement System, 10 S.O.S. 4484.
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