Crawford v. City of San Jose Police & Fire Retirement Bd.

Filed 10/29/07 Crawford v. City of San Jose Police & Fire Retirement Bd. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Appellant Philip Crawford, a self-represented litigant, petitioned the superior court for a writ of mandate to compel respondents the Police and Fire Retirement Board (Retirement Board) and the City of San Jose (the City) to accept his request to redeposit withdrawn contributions into the Police and Fire Department Retirement Plan (the retirement fund). The trial court found that appellant was not entitled to the relief he sought. Appellant argues in this court that the Retirement Board was required to accept his request for redeposit as he is a member of a reciprocal system, the State Teachers Retirement System (STRS). We disagree with appellant, and find that the retirement fund does not have reciprocity with STRS. The City is a charter city and the retirement fund was established under its charter. The City entered into a contract of reciprocity with the state Public Employees Retirement System (PERS) as provided by Government Code section 20351.[1] PERS has reciprocity with STRS pursuant to statute, Education Code section 22115.2. However, no statute provides for reciprocity between a retirement fund established under a charter citys charter and STRS, and the Citys reciprocity agreement with PERS does not provide for such reciprocity. Therefore, the trial court correctly denied appellants petition for writ of mandate and accompanying request for attorneys fees.

BACKGROUND

From October 1967 to December 1976, appellant was employed by the City as a police officer and sergeant, and was a member of the retirement fund. He was on leave of absence from September 1974 to May 1976 in order to work as a supervisor in the Criminal Justice Training Center (the police academy). Immediately upon resigning from the Citys police department in December 1976, appellant became employed as an instructional supervisor at the police academy and a member of STRS, and he has remained a member of STRS at all times relevant to this appeal. Appellant was required to withdraw his contributions from the retirement fund upon resigning in December 1976, as he had not been employed for the minimum vesting period of 10 years.

Effective September 30, 1994, PERS and the City agreed to extend reciprocal benefits to each other.

In 2002, the Legislature enacted section 45310.6 as part of the State Pension Act ( 45300 et seq.) to ensure that those who do serve or have served as local public safety officers shall have the ability to receive pension benefits for past service in other jurisdictions within the state. ( 45310.6, subd. (h).) The section allows an active member of PERS or a reciprocal retirement system to redeposit withdrawn contributions into a city retirement system if the city has established a reciprocal retirement system under this chapter. ( 45310.6.)

On October 3, 2003, and again on January 5, 2005, appellant requested that he be allowed to redeposit his withdrawn contributions with interest into the retirement fund. He claimed that, as a member of STRS, he was a member of a reciprocal system. Respondents denied the requests, claiming that STRS and the retirement fund are not reciprocal systems.

On May 3, 2006, appellant filed a petition for writ of mandate and request for attorneys fees, seeking to compel respondents to accept his request to redeposit the withdrawn contributions with interest. In the petition he contended that the retirement fund is a reciprocal system with STRS pursuant to sections 31830 and 31840.8. The City . . . having adopted reciprocity with [PERS] is legally obligated to extend reciprocity to both teachers and judges respective retirement systems. Appellant further contended that he had a right to redeposit his withdrawn contributions pursuant to section 45310.6. [Section] 45310.6 . . . specifically enables peace officers and firefighters who had previously been locked out of redeposit rights . . . the opportunity to redeposit so long as they are members of a reciprocal system at the time of redeposit. Accordingly, appellant argued that respondents failure to accept his request to redeposit funds was an abuse of discretion. Appellant requested attorneys fees under Code of Civil Procedure section 1021.5, contending that he was seeking to enforce an important right affecting the public interest.[2]

Respondents filed an answer to the petition on June 7, 2006, and an opposition on June 23, 2006. Respondents contended that there is no reciprocity between the retirement fund and STRS. Respondents admitted that the City entered into an agreement for reciprocity with PERS, but denied that it was obligated to extend reciprocity to members of STRS under the general laws of the state. Respondents also contended that, even if the City and STRS had reciprocity, because appellant moved from the retirement fund to STRS in 1976, prior to the effective date of the reciprocity agreement, reciprocity would not apply. Lastly, respondents contended that appellant was not entitled to an award of attorneys fees.

The trial court conducted a hearing on the petition on July 10, 2006, and filed its statement of decision on July 13, 2006. The court found that, since the City established the retirement fund under the authority of its charter and not pursuant to the State Pension Act, the provisions of that act, and particularly section 45310.6, did not control. The court further found that the limited contract establishing reciprocity between the retirement fund and PERS did not make the City subject to the Public Employees Retirement Law ( 20000 et seq.). Therefore, the court denied appellants petition and accompanying request for an award of attorneys fees, and entered judgment in favor of respondents. Appellant filed a timely appeal from the judgment.

DISCUSSION

Standard of Review

Appellants petition sought a traditional writ of mandate under Code of Civil Procedure section 1085. Mandate will lie to compel performance of a clear, present, and usually ministerial duty in cases where a petitioner has a clear, present and beneficial right to performance of that duty. [Citation.] (County of Del Norte v. City of Crescent City (1999) 71 Cal.App.4th 965, 972.) In reviewing the trial courts ruling on a writ of mandate (Code Civ. Proc., 1085), the appellate court is ordinarily confined to an inquiry as to whether the findings and judgment of the trial court are supported by substantial evidence. [Citation.] However, the appellate court may make its own determination when the case involves resolution of questions of law where the facts are undisputed. [Citation.] [Citation.] (Coloca v. County of San Diego (1999) 72 Cal.App.4th 1209, 1217; see also Dolan-King v. Rancho Santa Fe Assn. (2000) 81 Cal.App.4th 965, 974.)

[W]e independently determine the proper interpretation of [a] statute. As the matter is a question of law, we are not bound by evidence on the question presented below or by the lower courts interpretation. [Citations.] [] The rules governing statutory construction are well settled. We begin with the fundamental premise that the objective of the statutory interpretation is to ascertain and effectuate legislative intent. [Citations.] In determining intent, we look first to the language of the statute, giving effect to its plain meaning. [Citations.] Although we may properly rely on extrinsic aids, we should first turn to the words of the statute to determine the intent of the Legislature. [Citation.] Where the words of the statute are clear, we may not add or alter them to accomplish a purpose that does not appear on the face of the statute or from its legislative history. [Citation.] (Burden v. Snowden (1992) 2 Cal.4th 556, 562.)

The Retirement Fund

The City is a charter city (see Cal. Const., art. XI, 3), and the provisions of its charter have the force and effect of legislative enactments. (Ibid.) Charter cities are empowered to enact and enforce ordinances in respect to municipal affairs, subject only to restrictions and limitations provided in their several charters and in respect to other matters they shall be subject to general laws. (Id., 5, subd. (a); see City of San Jose v. Lynch (1936) 4 Cal.2d 760; Domar Electric, Inc. v. City of Los Angeles (1994) 9 Cal.4th 161, 170.)

The City established the retirement fund pursuant to its city charter, and the current version of the retirement fund, codified at sections 3.36.500 et seq. of the San Jose Municipal Code (the municipal code), is the continuation of a plan that has been in effect since at least 1915. (See San Jose Charter (1965 as amended through 2004), 1503; San Jose Charter (1915) 78; see also Grimm v. City of San Diego (1979) 94 Cal.App.3d 33, 37 [provisions for pensions relate to employee compensation and are municipal affairs].)

In 1994, the City adopted Ordinance No. 24681, which added sections 3.36.3000 to 3.36.3070 to the municipal code. The stated purpose of the ordinance was to extend to the members of other public agency retirement systems which adopt similar reciprocal provisions into their retirement ordinances or plans pursuant to Sections 20042, 20043, 31840.2, or 45310.5 of the California Government Code or pursuant to the charter of a city or city and county or pursuant to the authority vested in any other public agency of the state of California (hereafter reciprocal systems), and which have entered into an agreement to establish a reciprocal retirement system with [PERS], the rights in this retirement plan . . . . (San Jose Mun. Code, 3.36.3000.) Pursuant to the ordinance, the City and PERS agreed to extend each to the other reciprocal benefits as provided by Sections 20042, 20043, 31840.2, and 45310.5 . . . . effective September 30, 1994. Employees eligible for reciprocal benefits are those members of the retirement fund whose termination and entry into employment resulting in a change in membership from the retirement fund to a reciprocal system, or from a reciprocal system into the retirement fund, occurred after the effective date of September 30, 1994. (San Jose Mun. Code, 3.36.3010, subd. B.)

The City and STRS do not have a similar agreement.

Reciprocity between the Retirement Fund and STRS

Appellant contends that section 45310.5[3] provides the exclusive means for a

chartered city such as the City to obtain reciprocity with other public employee retirement systems, and that the City cited section 45310.5 in ordinance No. 24681 as the legal basis for its reciprocity agreement with PERS. Appellant further contends that, having established a reciprocal system with PERS under the authority of section 45310.5, the retirement fund has reciprocity with all other reciprocal systems. He argues that STRS is a reciprocal system with PERS and that he is an active member of STRS. Therefore, he can elect to redeposit contributions in the retirement fund as an active member of a reciprocal system or [PERS] at the time of redeposit. ( 45310.6, subd. (a).)[4]

Sections 45310.5 and 45310.6 are provisions within the State Pension Act ( 45300 et seq.), which authorize cities to adopt retirement systems under its provisions. (See 45300.) The State Pension Act also states that its provisions are an alternative procedure for the establishment of retirement systems in cities. ( 45316.) Therefore, the State Pension Act was not intended to pre-empt the field of pensions for municipal employees and the act did not preclude the City, as a charter city, from adopting its own pension system independent of the act. (Bellus v. City of Eureka (1968) 69 Cal.2d 336, 346; see also 57 Ops.Atty.Gen. 7 (1974).) The City established the retirement fund under its city charter, and not under the State Pension Act. In addition, the City did not contract with PERS for reciprocity under the authority of section 45310.5, which is part of the State Pension Act.[5] Rather, the City contracted with PERS for reciprocity pursuant to section 20351,[6] which authorizes PERS to enter into reciprocity agreements with charter cities, and Ordinance No. 24681.

Ordinance No. 24681 provides for reciprocity with other public agency retirement systems that have (1) adopted similar reciprocal provisions into their retirement plans pursuant to specified state statutes or city charter or the public agencys vested authority, and (2) entered into an agreement to establish a reciprocal retirement system with PERS. (San Jose Mun. Code, 3.36.3000.) The specified state statutes in the ordinance refer to the reciprocity provisions for PERS (formerly 20042 & 20043, now 20351 & 20353, respectively), the County Employees Retirement Law of 1937 (CERL),  31840.2), and the State Pension Act ( 45310.5). The ordinance did not specifically mention the statutory reciprocity provisions for STRS.

Appellant conceded below that STRS has no ability to enter an agreement with [the City]. Theyre a statewide agency. Any agreement they may make [has] to be by legislative act, yet the Legislature has not provided for such an agreement in the statutory provisions governing STRS. (See Ed. Code, 22000 et seq.) The Legislature has provided for reciprocity for STRS members with specific enumerated public retirement systems (specifically, PERS, the Legislators Retirement System, the University of California Retirement System, county retirement systems established under the CERL, and the San Francisco City and County Retirement System), but not with any other retirement system that may be established by a city pursuant to its city charter. (Ed. Code, 22115.2.) Thus, ordinance No. 24681 did not provide for reciprocity between the retirement fund and STRS.

Appellant contends that he has redeposit rights pursuant to the reciprocity provisions that govern PERS, sections 20752, 20351, and 20353. Subdivision (a) of section 20752 provides for reciprocity between PERS and STRS, and allows members of STRS who have withdrawn contributions from PERS to redeposit them in PERS. Subdivision (b) of the same section provides for similar redeposit rights for members of (1) any retirement system established under the State Pension Act that has a reciprocity agreement with PERS, (2) any retirement system established pursuant to a city charter that has a reciprocity agreement with PERS, and (3) any retirement system established by a public agency that has a reciprocity agreement with PERS.[7] Thus, section 20752 provides for redeposit rights between STRS and PERS members and between PERS and the retirement fund members, but it does not provide for reciprocity between STRS and the retirement fund members.

Section 20351 authorizes PERS to contract for reciprocity with other retirement systems, including those established pursuant to a city charter. Section 20353[8] provides for reciprocity between all retirement systems that have contracted for reciprocity with PERS under section 20351. STRS has reciprocity with PERS pursuant to Education Code section 22115.2, and not pursuant to a contract authorized by section 20351. Therefore, section 20353 does not give STRS reciprocity with all other retirement systems that have contracted for reciprocity with PERS.

Appellant also contends that he has redeposit rights pursuant to the reciprocity provisions in the CERL, specifically sections 31830,[9] 31840.2[10] and 31840.8.[11] These sections establish reciprocity between two county retirement systems established under CERL, between a county retirement system and PERS, between a county retirement system and STRS, between a county retirement system and a public agency retirement system that has a reciprocity agreement with PERS, and between a county retirement system and the Judges Retirement Systems. It does not establish reciprocity between the retirement fund, which was established under its city charter, and STRS.

As appellant has not shown that the retirement fund is a reciprocal retirement system with STRS, of which he is an active member, he has not shown that respondents abused their discretion in denying his request to redeposit withdrawn contributions into the retirement fund with interest. Accordingly, based on our review of the statutes, the trial court properly denied appellants petition for writ of mandate.

Attorneys Fees

Appellant seeks an award of attorneys fees under Code of Civil Procedure section 1021.5 in the underlying litigation and this appeal. He contends that such an award is appropriate in this case because it establishes important retirement recovery rights for all those existing public employees who have prior service in the [section] 45310.6 designated public safety occupations. Respondents contend that appellant failed to show that the litigation served to vindicate an important public right or that it conferred a significant benefit on a large class of persons.

Under Code of Civil Procedure section 1021.5, a court may award attorneys fees to a successful party against one or more opposing parties (ibid.) if the litigation: (1) served to vindicate an important public right; (2) conferred a significant benefit on the general public or a large class of persons; and (3) imposed a financial burden on plaintiffs which was out of proportion to their individual stake in the matter. [Citation.] (Galante Vineyards v. Monterey Peninusla Water Management Dist. (1997) 60 Cal.App.4th 1109, 1125.) Because appellant is not a successful party as that term is used in Code of Civil Procedure section 1021.5, no attorneys fees may be awarded.

DISPOSITION

The judgment is affirmed.

_______________________________________________________

Bamattre-Manoukian, ACTING P.J.

WE CONCUR:

__________________________

Mcadams, J.

_________________________

duffy, J.

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[1] Further statutory references are to the Government Code unless otherwise specified.

[2] Appellant is an active member of the State Bar of California.

[3] The ordinance may provide for a modification of rights and benefits of a member because of membership in a reciprocal system similar to and under the same conditions as those provided under the County Employees Retirement Law of 1937 and the Public Employees Retirement Law because of membership in two or more retirement systems established by or pursuant to such laws. . . . [] A reciprocal system, for purposes of this section, means a retirement system established under the County Employees Retirement Law of 1937, [PERS], a retirement system of a city whose retirement ordinance contains the provisions authorized by this section, or a retirement system of a city or city and county established by its charter and providing for modifications of rights and benefits similar to and under the same conditions as those provided for under this section. [] When a city has established a reciprocal retirement system under this section and has received approval thereof from [PERS], then such system shall be automatically reciprocal with all other state, local and public agencies who are members, or contracting members of [PERS] or any retirement system established under the County Employees Retirement Law of 1937. ( 45310.5.)

[4] Appellants request that this court take judicial notice of the contents of the website for the retirement fund is denied. (See Brosterhous v. State Bar (1995) 12 Cal.4th 315, 325.)

[5] Appellant contends that the trial courts interpretation of section 45310.5 and 45310.6 creates two classes of former public safety employees, those who work for cities that have retirement systems established under their charters and those who work for cities that have retirement systems established under the State Pension Act, denying them equal protection. (See Cal. Const., art. I, 7, subd. (a).) We disagree. Because the California Constitution authorizes charter cities to create retirement systems under their city charters (Id., art. XI, 3, 5), and the Legislature has stated that the
State Pension Act is not the exclusive procedure under which cities may establish retirement systems ( 45316), the City does not deny its former public safety employees equal protection by establishing a retirement fund that is not governed by sections 45310.5 and 45310.6 of the State Pension Act.

[6] The provisions of this part extending rights to a member of this system, or subjecting him or her to any limitation by reason of his or her membership in a county retirement system, shall apply in like manner and under like conditions to a member of this system by reason of his or her membership in any retirement system established under Chapter 2 (commencing with Section 45300) of Division 5 of Title 4 with respect to which an ordinance complying with Section 45310.5 has been filed with and accepted by the board or by reason of his or her membership in a retirement system established by or pursuant to the charter of a city or city and county or by any other public agency of this state and that system, in the opinion of the board, provides a similar modification of rights and benefits because of membership in this system and with respect to which the governing body of the city, city and county or public agency and the board have entered into agreement pursuant to this section. . . . ( 20351.)

[7] Provisions of this section extending a right to redeposit accumulated contributions withdrawn from this system also apply to members of any retirement system established under Chapter 2 (commencing with Section 45300) of Division 5 of Title 4 with respect to which an ordinance complying with Section 45310.5 has been filed with, and accepted by, the board or any retirement system established by, or pursuant to, the charter of a city or city and county or by any other public agency of this state which system, in the opinion of the board, provides a similar modification of rights and benefits because of membership in this system and with respect to which the governing body of the city, city and county or public agency and the board have entered into agreement pursuant to Section 20351. ( 20752, subd. (b).)

[8] Any public agency that has pursuant to the provisions of Section 20351 entered into an agreement to establish a reciprocal retirement system with this system shall be deemed to have obtained the same rights and limitations with respect to all other public agencies who have entered into those agreements and established reciprocity as well as with respect to county retirement systems and under Chapter 2 (commencing with Section 45300) of Division 5 of Title 4 that have established reciprocity with this system pursuant to Section 20351. ( 20353.)

[9] The provisions of this article are intended to encourage career public service by granting reciprocal retirement benefits to members who are entitled to retirement rights or benefits from two or more retirement systems established under this chapter or from a retirement system established under this chapter and [PERS], [STRS], or a retirement system of any other public agency of the state that has established reciprocity with [PERS] subject to the conditions of Section 31840.2, and to delineate the financial obligations of each system and related political agency so that no system or political entity shall be liable for more than its just financial obligation. ( 31830.)

[10] The provisions of this article extending rights to a member of a county retirement system established under this chapter or subjecting him or her to any limitation by reason of his or her membership in [PERS] shall apply in like manner and under like conditions to a member by reason of his or her membership in any retirement system established under [the State Pension Act] with respect to which an ordinance complying with Section 45310.5 has been filed with and accepted by [PERS] or by reason of his or her membership in a retirement system established by or pursuant to a charter of a city or city and county or by any other public agency of this state which system, in the opinion of [PERS], provides a similar modification of rights and benefits because of membership in a system established under this chapter and with respect to which the governing body of such city, city and county or public agency and [PERS] have entered into agreement pursuant to Section 20351. . . . ( 31840.2.)

[11] The provisions of this chapter extending rights to a member of a county retirement system established under this chapter by means of his or her membership in [PERS] shall also apply to members of [STRS], the Judges Retirement System, and the Judges Retirement System II. ( 31840.8.)