Should a retired CHP officer convicted of sex crimes keep his $99,000 pension?

The California Public Employees’ Retirement System could soon restore an $8,000-per-month pension for a retired California Highway Patrol officer convicted of felony sex offenses against his two young daughters nine years ago.

Johnnie Swaim, 56, of Imperial, was charged in 2011 based on accusations that he placed his penis into each of his daughters’ mouths when they were under 10 years old, according to a Fourth Appellate District Court of Appeal opinion.

Swaim, who stopped working for the CHP in December 2011, was convicted of four felonies by a jury in Imperial County Superior Court in 2013, according to the opinion. He said during the trial that he was innocent, and the appellate opinion says he called the trial’s outcome a “miscarriage of justice.”

The Fourth Appellate District Court reversed two convictions for oral copulation with a minor, determining the other two convictions — for lewd acts on a minor — incorporated the copulation charges. But the appellate court rejected most of Swaim’s arguments and did not reduce his prison sentence. The state Supreme Court declined to hear his case.

He was sentenced to 10 years in prison and was taken into state corrections department custody in July 2013. He was paroled in 2020.

Swaim did not respond to a voicemail or a text left with a woman who identified herself as his wife. His attorney did not respond to phone messages or an email.

After his appeals failed, Swaim filed for retirement benefits and started receiving a pension in 2016 based on his 2011 end date at CHP, according to a CalPERS summary of his case. An agency spokesperson said Tuesday that a retiree can start receiving a pension while in prison.

Last year, the retirement system reduced his pension due to the felonies. Swaim appealed the reduction, and last month he received a favorable decision from an administrative law judge.

On Wednesday, the CalPERS Board of Administration is scheduled to vote on whether to accept the judge’s recommendation and restore Swaim’s retirement benefits.

Felony pension rules

Swaim filed for retirement with CalPERS in December 2015, based on employment from 1988 through 2011, according to the summary prepared by CalPERS employees for the retirement system’s board.

Public employees’ pensions are calculated primarily on length of service, their highest salaries and age at retirement. Swaim started receiving $7,775 per month in April 2016, and was receiving $8,251 by early 2021 after cost-of-living adjustments, according to CalPERS spokeswoman Amy Morgan.

At some point — the date is not specified in documents provided to the board — CalPERS received an ethics complaint over Swaim’s pension and launched an investigation.

California public employees who commit a felony in the course of their work may not continue to earn a pension after the date of the felony. Swaim was convicted of committing his first felony while off-duty between January 1997 and January 1999, according to the CalPERS summary.

His daughter reported to law enforcement that when she was about 5 or 6 years old, Swaim asked her to come into his room while her mother was at work, and to place his penis into her mouth, according to a summary of events in the appellate opinion.

She told two friends about it when she was 10, and her mother learned about the allegations then, according to the opinion. The two parents confronted her, and the daughter “took back what she had said,” according to the opinion. Later, she told at least three other people and her younger sister about it, the opinion said.

The younger sister told a social worker that something similar had happened to her, but she later recanted. During the trial, she testified that her older sister had made the claims and asked her to “go along with it,” according to the appellate opinion.

At trial, two women related to Swaim — his niece and cousin — testified he had molested them when they were four and seven to nine, respectively, according to the appellate opinion.

Swaim was 15 or 16 in the case of his niece and 18 to 20 in the case of his cousin, according to the opinion. He was charged with those offenses in 1995 but acquitted in a jury trial, according to the opinion.

Swaim denied his daughters’ allegations at trial.

In April 2021, CalPERS reduced Swaim’s monthly check to $1,179, according to Morgan. The retirement system used a date of Jan. 29, 1997, for the commission of his first felony, wiping out 14.5 years of service credit. The system notified Swaim he would have to repay about $413,000 due to the change, according to a CalPERS summary.

Swaim appealed the reduction to California’s Office of Administrative Hearings, arguing the convictions shouldn’t affect his pension since they weren’t related to his work.

CalPERS argued that while Swaim wasn’t convicted of an on-the-job felony, police officers are “held to a heightened standard of conduct, even when off-duty.”

“Felonious and immoral misconduct by police officers cannot be rewarded with a public pension,” the retirement system argued, according to the CalPERS summary.

Administrative Law Judge Eric Sawyer ruled in Swaim’s favor on May 2.

“While respondent’s crimes against his children are despicable, no evidence indicates they have any bearing on how he fulfilled his duties as a CHP officer or obtained his pension,” Sawyer wrote.

CalPERS’ attorneys recommended the board adopt Sawyer’s ruling, according to material posted online ahead of Wednesday’s meeting. Doing so would restore Swaim’s pension along with the cost-of-living increases. The board is scheduled to take a vote on Swaim’s pension and that of others who have filed appeals.

California’s pension forfeiture law is similar to laws in many other states that require retirees to give up their pensions when the felony is work-related, according to a National Association of State Retirement Administrators summary. Some state laws don’t require surrendering a pension at all.

This story was originally published June 15, 2022 at 5:00 AM.