Constitutional: Former county employee loses pension because he stole county funds

Where a former Halifax County employee was convicted of felony embezzlement, after it was discovered that he pocketed cash payments for pet adoptions that were supposed to be deposited into the county’s coffers, he lost his pension. Although he argued the loss of pension violated the Eighth and Fourteenth Amendments, these arguments were rejected.

Background

While working as an animal control officer for Halifax County, Sammie Todd Moser regularly pocketed cash payments for pet adoptions that were supposed to be deposited into the County’s coffers. After he retired, Moser pleaded guilty to two felony embezzlement counts and was sentenced to probation.

The Board of Supervisors for Halifax County concluded that, because Moser had been convicted of felony embezzlement arising from his work as an animal control officer, he was no longer entitled to receive state contributions to his pension under Virginia law. The circuit court affirmed the Board’s decision.

Moser then filed this federal suit against the Virginia Retirement System, VRS, arguing that the termination of his pension violated his Fourteenth Amendment right to due process and the Eighth Amendment’s prohibition of excessive fines. Moser and VRS have now filed cross motions for summary judgment.

Eighth Amendment

Excessive-fine challenges require the movant to demonstrate that (1) there is a “fine” at issue, or the government intends to “extract payments” from an individual as punishment for an offense, and (2) the fine is “grossly disproportional to the gravity of a[n] . . . offense.”

The issue of whether forfeiture of state-sponsored pension benefits, especially following a job-related felony conviction, is a fine is a matter of first impression in the Fourth Circuit. But other federal courts have uniformly held that pension forfeiture based on employee misconduct is not a “fine” in the constitutional sense, because these employees did not have a vested property interest in the first instance. The overwhelming majority of state courts to address this issue have also reached the same conclusion, particularly where, as in this case, the petitioning employee would be refunded their own contributions.

Although the Supreme Court of Virginia has not yet ruled on this exact issue, the Virginia courts’ application of Virginia contract law to similar types of government retirement benefits is determinative. Like the pension benefits at issue in those cases, Moser’s VRS benefits are quasi-contractual benefits that are “conditioned upon the happening of an event”: specifically, civil service unadulterated by the commission of a job-related felony under § 51.1-124.13. It is undisputed that Moser did not meet that threshold requirement, so VRS was not required to pay its contribution to Moser’s pension. As such, its failure to do so did not constitute a fine.

Moser argues that, insofar as his prior tenure as a local police officer and sheriff’s deputy in Halifax County was unblemished by his later embezzlement as an animal control warden, he at least had a vested property interest in the portion of his VRS pension tied to his earlier service. The court disagrees.

Moser also seizes on the fact that he had received monthly retirements benefits for about a year and half prior to the revocation proceedings to argue that he had a vested property interest, and thus, that the termination worked as a fine. But this too is foreclosed by the Virginia statute that governs these retirement benefits.

Moser did not accrue a property interest just because VRS mistakenly began paying his benefits under the belief that he had completed honorable service, only to revoke those illegitimately earned benefits under that statute when they learned otherwise. This statutory scheme is not unique; federal statutes and case law similarly provide for the revocation of government-provided benefits upon discovery of fraudulent or mistaken disbursement.

Moser finally contends that his pension forfeiture is a fine because the dictionary definition of “punishment” includes “a fine, penalty, confinement, or loss of property, right or privilege.” As it goes, he urges the court to find that § 51.1-124.13 imposes an excessive fine because the forfeiture is, abstractly, “punishment.” This argument is meritless, and in any event, would only get Moser half-way; “fines” are not prohibited by the Eighth Amendment, only “excessive” ones.

Fourteenth Amendment

Because Moser did not have a vested property interest in his pension, his due process claim fails on this ground alone. But even if Moser were to persuade the court that he “possessed a property interest in his retirement,” he received all process that was due: notice and an opportunity to be heard. Relatedly, he argues that, without a right to appeal the circuit court’s determination, § 51.1-124.13 is unconstitutional. But there is no constitutional right to appeal either a civil or criminal judgment, unless provided by statute. Until the Virginia General Assembly speaks differently or amends the Code further, the circuit courts of Virginia are the proper, final resting places for pension-forfeiture decisions.

Plaintiff’s motion for summary judgment denied. Defendant’s motion for summary judgment granted.

Moser v. The Virginia Retirement System, Case No. 4:24-cv-00010, Nov. 6, 2025. WDVA at Danville (Cullen). VLW 025-3-460. 20 pp.