Orange County Superior Court Judge Geoffrey Glass Wednesday upheld a decision by the county’s retirement board to reduce the pension of Orange County Public Works executive Carlos Bustamante, following Bustamante’s criminal convictions for sexually assaulting women who worked for him at the county.
In December 2015, Bustamante, a former Santa Ana City Council member and rising star in the local Republican Party, pleaded guilty to felony counts of stalking, attempted sexual battery by restraint and grand theft by false pretense, as well as misdemeanor counts of false imprisonment, assault and attempted sexual battery.
In October 2016, the retirement board, known as the Orange County Employees Retirement System, or OCERS, voted unanimously to cut two and a half years of service credits from Bustamante’s pension, bringing his monthly payment from $4,687.40 to $3,096.86. Soon after, Bustamante filed a lawsuit challenging the constitutionality of their decision.
“While a promise of a pension was part of the bargain for petitioner’s [Bustamante’s] public employment, it is not unconditional,” Glass wrote in his ruling Wednesday. “The promise is that pensions are for those who faithfully give service to the public.”
Faithful service to the public and a felony conviction related to that service, Glass wrote, “are incompatible.”
In OCERS’ response to Bustamante’s lawsuit, the agency evoked the #MeToo movement, a social media campaign for survivors of sexual harassment, assault and rape.
“#MeToo,” the brief begins. “That would be the call of the five women who Petitioner Carlos Bustamante admitted to sexually harassing, assaulting, and forcibly restraining during his multi-year spree of abuse and power.”
In cutting Bustamante’s pension, the retirement board relied on the state Public Employees’ Pension Reform Act, known as PEPRA, which went into effect in 2013 and requires “current or future” public officials convicted of a felony while carrying out their official duties to forfeit pension benefits earned from the date of the commission of the felony.
Bustamante’s attorney, Edwin Brown, argued that the law does not apply to Bustamante because he resigned in October 2011, before PEPRA went into effect.
“It remains our position that it’s an unconstitutional statute as it relates to Mr. Bustamante, because it’s a right that was vested long before the statute became effective,” Brown told Voice of OC Thursday. “We’re arguing that once you’ve resigned, been terminated or retired, you aren’t a current employee.”
OCERS argued it’s the date of his criminal conviction, in December 2015, that matters.
“Petitioner’s proposed construction of the statue would open up a loophole in the provision that every criminal defendant could step right through, because defendants could simply resign office before a judgment of conviction is entered, avoiding the felony forfeiture statute,” attorneys for OCERS wrote in a court filing.
Glass sided with OCERS, saying that while the law does make a distinction between employees hired before and after 2013, the section on felony forfeiture clearly was intended to cover all public employees past and present.
Brown’s attorney also objected to the application of the felony forfeiture law given that the three felony charges against Bustamante were originally misdemeanors, but were changed when the statute of limitations on the misdemeanor charges ran out. Brown said Bustamante agreed to the plea deal with the promise that after three years, his felonies would be reduced to misdemeanors, and never would have signed the plea deal knowing that his pension was in jeopardy.
Glass also rejected that argument, writing that “The petitioner plead guilty to a felony and thus convicted of a felony.”
Bustamante has not decided yet whether he will appeal the judge’s decision.
“We think it’s appealable, but he just hasn’t made a decision,” Brown said.
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