SF Deputy Sheriif’s Pension improperly forfeited where felony criminal conduct did not arise out of performance of official duties

APRIL D. MYRES, Plaintiff and Appellant, v. BOARD OF ADMINISTRATION FOR PUBLIC EMPLOYEES’ RETIREMENT SYSTEM, Defendant and Respondent. (Cal. Ct. App., Dec. 26, 2025, No. A170516) 2025 WL 3731539, at *1

Summary: The Public Employees Pension Reform Act (PEPRA; Gov. Code, § 7522 et seq.; Stats. 2012, ch. 296, § 15), enacted section 7522.72, under which a public employee forfeits part of their pension upon conviction of a felony “for conduct arising out of or in the performance of [their] official duties.” (§ 7522.72(b)(1)).) The Public Employees Retirement System (CalPERS) decided that it covered the conduct for which a federal jury found former San Francisco Deputy Sheriff April Myres guilty of mail and wire fraud (18 U.S.C. §§ 1341, 1343). The trial court denied Myres’s petition for a writ of administrative mandate. The Court of Appeal held that while her criminal conduct related in some ways to her position, it did not “aris[e] out of or in the performance of … her official duties” (§ 7522.72(b)(1)). More than conduct that is only  “job related” is required.  That view ignores the statute’s text and has no support in precedent. The Court reversed.

Background of Deputy Myles Legal Problems

Myres served for nearly 20 years as a deputy in the San Francisco Sheriff’s Office (SFSO).

Myres, in knowing violation of SFSO policy, began having—and concealing—a romantic relationship with Antoine Fowler, an inmate at the jail. In August 2015, the SFSO told Myres it was investigating her and transferred her to a post outside the jail.

In January 2017, federal prosecutors filed a criminal complaint jointly charging Myres and Fowler with committing and conspiring to commit mail and wire fraud (for the insurance claim), to which the government  added a charge that Myres gave a felon a firearm.

Federal agents arrested Myres, who retired from the SFSO. In April 2017, a federal grand jury indicted her for mail and wire fraud, based on having mailed and faxed material to Farmers about her claim, and, in lieu of the former charge of giving a felon a firearm, a count for misprision of a felony. The felony the indictment charged Myres with misprising was Fowler’s unlawful possession of a firearm as a felon.

At Myres’s trial, prosecutors proved unable to substantiate their theory that she had staged a fake burglary with Fow. The jury acquitted Myres of misprision but found her guilty of mail and wire fraud.

After Myres’s convictions were affirmed, CalPERS concluded that they “ar[ose] out of … the performance of [her] official duties,” triggering section 7522.72. CalPERS informed her that she had thereby forfeited that part of her pension attributable to her last nine and a half months of service—from the day she sent Farmers her false claim through the day she retired. Myres requested a hearing before an administrative law judge (ALJ).

After an evidentiary hearing, an ALJ issued a proposed decision that upheld CalPERS’s decision. Noting that an element of Myres’s crimes was forming a scheme to defraud her victim, the ALJ reasoned that her “scheme to defraud her insurer” included her “concealment of her relationship with Fowler and the fact that he was the obvious suspect in the burglary” and her claim for “the SFSO–issued Service Firearm and radio, which she knew were not her property.” The ALJ quoted the judge’s comment that “ ‘[o]ne cannot separate her job in law enforcement from her conduct.’ ” CalPERS’s Board of Administration adopted the proposed decision.

Myres petitioned the trial court for a writ of administrative mandamus, directing CalPERS to set aside its decision. The court denied her petition,

Nature and Standards of Review

The administrative mandamus statute authorizes judicial review of administrative decisions. (Code Civ. Proc., § 1094.5) A court may reverse a decision that entails a “prejudicial abuse of discretion.” (Code Civ. Proc., § 1094.5, subd. (b).) An agency abuses its discretion if, among other things, its decision “is not supported by the findings, or the findings are not supported by the evidence.”

Deciding whether section 7522.72 applies to a given criminal conviction is not a task in which CalPERS has greater institutional expertise than a court.

It is settled that we may “ ‘disregard the superior court’s conclusions when the probative facts are undisputed and clearly require different conclusions. “ ‘Appellate review in such a case is based not upon the substantial evidence rule, but upon the independent judgment rule.’ ” ’ ” (Land v. California Unemployment Ins. Appeals Bd. (2020) 54 Cal.App.5th 127, 138–140,

 

CalPERS does not identify any specific “official duties” out of which, or in the performance of which, Myres’s criminal conduct “ar[ose].” Instead, it urges us to replace the statutory language with a judge-made rule that a public employee’s criminal conduct need only be “job-related.”

The statute requires some causal nexus between an employee’s official duties and the conduct for which they were convicted. (1) we must construe “ambiguous or uncertain” laws governing public employee pensions “liberally in favor of the pensioner” (Hale v. Public Employees’ Retirement System (2022) 82 Cal.App.5th 764, 772 (Hale)); and (2) we must construe ambiguous statutes so as to avoid raising constitutional questions (People v. Buza (2018) 4 Cal.5th 658, 682 (Buza)). A broad reading of section 7522.72(b)(1) could raise the constitutionality of section 7522.72 under the contracts and ex post facto clauses of our state constitution.

The Court concluded that, while the facts of this case present a close call, they fall outside the statute’s scope.

Myres’s Criminal Conduct Did Not Arise Out of Or In the Performance of Her Official Duties.

All ambiguous statutes governing public pensions must be construed in favor of pensioners (Hale, supra, 82 Cal.App.5th at p. 772) and must narrowly construe section 7522.72(b)(1)  to avoid raising constitutional questions (Buza, supra, 4 Cal.5th at p. 682). CalPERS offers no reason to apply a law governing conduct “arising out of or in the performance of … official duties” to conduct entailing a single off-duty use of official resources unrelated to such duties. Absent clearer direction from the Legislature or our Supreme Court, the Ciurt cannot so construe section 7522.72.

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