Judge Flinn Issues Tentative Decision in PEPRA Case

On December 17, 2013, Contra Costa Superior Court Judge David Flinn, who is presiding over the lawsuit known as DSA v. CCCERA, et. al., issued a tentative combined decision in the case. The lawsuit was brought by Deputy Sheriff’s Association (DSA) and other employee groups who are opposing ACERA and other county pension funds’ implementation of AB 197, a part of the Public Employees’ Pension Reform Act (PEPRA) which was passed in California in late 2012.

For Contra Costa County and Merced County, Judge Flinn concluded that it may be appropriate to prevent the retirement boards from imposing AB 197 on current active members who may be injured by the retirement boards’ implementation of AB 197, where they accrued leave time in anticipation of having it included in their Final Average Salary calculations prior to the enactment of AB 197. The judge’s description of who may be injured and how to determine if injury may occur was not clear in the tentative combined decision. For Alameda County, Judge Flinn did not point to any evidence leading to the above conclusion having been submitted by the Alameda petitioners, and is notably silent on whether the conclusion applies to ACERA members

The judge has established a schedule for the parties to comment on his tentative decision, and thereafter he will finalize the judgments to be issued for each retirement board involved in the case. We anticipate the parties will clarify whether ACERA members will be considered “injured” and exactly how the judge envisions the retirement boards will be authorized to address circumstances where members had in fact accrued leave time in anticipation of retirement prior to the enactment of AB 197.

Judge Flinn also addressed the question of whether compensation for services “outside of normal working hours” may be included in “compensation earnable,” for the purposes of calculating a member’s retirement benefits. He concluded that the retirement boards are tasked with making these determinations and are limited to using the rules provided by statute. Since the boards had not yet made determinations to be objected to, Judge Flinn concluded request for judicial intervention and relief at this stage was premature.

Judge Flinn has granted the parties (including ACERA) the opportunity to object to, seek clarification of, and otherwise remark on his tentative decision by January 27, 2014. The parties will then present their positions orally in court on February 11, 2014. ACERA staff hopes to be able to provide more information to members after this date.

See the attached file for a more technical 2-page summary of Judge Flinn’s December 17 ruling.