FROM: Colin Bishop, Chief of Member Services
SUBJECT: Returning Retiree Certification: Charles Abney
RECOMMENDATION:
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Approve the request to extend employment of Charles Abney from May 4, 2024 to November 1, 2025 because an extreme necessity exists to continue the retiree’s employment beyond the 18-month limit, and thus the standards of SBCERA Board Benefits Policy No. 032 “Retirees Returning to Work,” have been met.
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BACKGROUND:
The California Public Employees’ Pension Reform Act of 2013 (“PEPRA”) provides specific employment restrictions for retirees who return to work with an employer in the same public retirement system from which they receive a benefit. The SBCERA Board of Retirement (“the Board”) policy on “Retirees Returning to Work” outlines the operating criteria under which SBCERA retirees can return to work with SBCERA-participating employers, while remaining in compliance with the restrictions set forth in PEPRA. Most notably, when an employer intends to employ an SBCERA retiree beyond 18 consecutive months from the commencement of his or her re-employment, the request must be approved by the Board.
Charles Abney retired on June 30, 2005 and was initially re-employed on July 16, 2011, in the Sheriff’s Aviation Unit, prior to the implementation of PEPRA. The Board first implemented its policy on “Retirees Returning to Work” in 2015, and in the years since then the Sherriff’s Department has requested and received various extensions for Mr. Abney’s employment in accordance with SBCERA Board Policy, most recently when the Board approved his return to work from November 1, 2022, to October 31, 2023.
The Sheriff’s Department is currently requesting an extension for Mr. Abney to continue working until November 1, 2025. More details on that current request are provided below. However, Mr. Abney continued to work after the end of his most recently approved reemployment date of October 31, 2023, with his last day working being April 1, 2024. (Although he worked beyond the authorized certification date, the employer indicated that Mr. Abney only worked a total of 88.5 hours between November 1, 2023 and April 1, 2024, for an average of just under 18 hours per month over that period.) Regardless, for an SBCERA retiree’s re-employment to extend greater than 18 consecutive months requires the approval of the Board. Because Mr. Abney did not receive Board approval to work beyond October 31, 2023, he was in violation of SBCERA Board Policy. Violations of this policy provision and others are subject to determination by the Chief Executive Officer (“the CEO”), based on SBCERA Board Policy, which stipulates that the CEO shall determine (II.D.2.a.):
i. whether to suspend the re-employed retiree's retirement allowance and restore the member to active membership,
ii. the effective date of such action,
iii. the recovery of any improperly paid benefits,
iv. the collection of any contributions (employer and employee) that may be owed, and
v. any other appropriate action.
In this case, the CEO determined that Mr. Abney was required to stop working with San Bernardino County as a returning retiree, and could not return to work for any SBCERA-participating employer while receiving his SBCERA retirement benefit, unless such action was approved by the Board. After SBCERA shared this information with Mr. Abney and the Sheriff’s department, Mr. Abney ceased working and has not worked since.
For this current request, the employer has again indicated that Mr. Abney had special skill and knowledge to fly Sheriff’s Department helicopters and fixed-wing aircraft, provide support for search and rescue, and provide transportation to County personnel for investigations, extraditions, inspections, and meetings. The Sheriff’s Department memo (attached as Exhibit C) also details the difficulty in recruiting for this position, and the importance of the position with regards to the department’s public safety obligation. Additionally, the County has indicated that Mr. Abney has worked in a vital but limited role, logging approximately 25 hours per month of service during the current fiscal year. The Sheriff’s Department therefore contends there is an extreme necessity to continue the retiree’s employment beyond the 18-month limit.
Pursuant to Board policy and applicable law, upon receiving and reviewing the justification to extend the retiree’s employment beyond the 18 consecutive month limit for presumed compliance with the statutory “limited duration” standard, the Board must determine whether the following are true:
1. Re-employment is necessary to enable the employer to continue effective operations in light of genuinely extreme necessity that is unavoidable or could not have been anticipated. The retiree's retirement shall not, in and of itself, be considered to have given rise to the extreme necessity to which this paragraph refers; and
2. Re-employment is limited to the completion of a discrete quantity of genuinely limited work that one would expect to be completed at a foreseeable time, or through the completion of a special project.
Based on the Board’s determination above, the Board:
1. Approves the request for extension of employment of the retiree beyond the 18 consecutive month limit, following the recommendation above.
2. Denies the request of extension of employment of retiree beyond the 18 consecutive month limit. In a case of any violation of the law as implemented through Policy No. 032, including continued employment beyond the 18 consecutive month limit or without prior approval, the Board directs staff to suspend the retiree’s retirement benefit and reinstate the retiree to active service. Additionally, staff is directed to commence collection of any retirement benefits received during any unlawful re-employment, as well as contributions from employer and employee.
As noted above, staff recommends that the Board approve this request for the extension of employment of Mr. Abney.
BUDGET IMPACT:
None.
STRATEGIC PLANNING GOAL/OBJECTIVE:
Operational Excellence & Efficiency
STAFF CONTACT:
Colin Bishop
Kathleen Crook
ATTACHMENTS:
Exhibit A: Board Summary Worksheet
Exhibit B: Certification Form
Exhibit C: Department Memo
Exhibit D: Prior Certification Forms