Filed 8/14/26 Szewczyk v. Orange County Employees Retirement System CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

ROBERT SZEWCZYK et al.,

Plaintiffs and Respondents, G065386

v. (Super. Ct. No. 30-2022-
01268984)
ORANGE COUNTY EMPLOYEES
RETIREMENT SYSTEM et al., OPINION

Defendants and Appellants.

Appeal from a judgment of the Superior Court of Orange County,
Sandy N. Leal, Judge. Affirmed.
Reed Smith, Maytak Chin and Mariah K. Fairley for Defendants
and Appellants.
Rains Lucia Stern St. Phalle & Silver and Jacob A. Kalinski for
Plaintiffs and Respondents.
Pursuant to the County Employees Retirement Law of 1937 (Gov.
Code, § 31450 et seq.) (CERL), a County of Orange (County) employee
receives a pension amount based in part on the employee’s “‘[c]ompensation
earnable’” (§ 31461, subd. (a).).1 “‘Compensation earnable’” is defined as “the
average compensation . . . for the period under consideration upon the basis
of the average number of days ordinarily worked by persons in the same
grade or class of positions during the period, and at the same rate of pay.”
(Ibid.)
Following a reorganization of the Orange County Sheriff’s
Department in 2008, those classified in the position of deputy sheriff II were
assigned to work patrol while those classified as a deputy sheriff I worked in
jail operations. Deputy sheriff II’s Robert Szewczyk and Rodney Morikawa,
along with other deputy sheriff II’s who had been working in jail operations
at the time of the reorganization, accepted the option to remain working in
jail operations. All deputy sheriffs working in jail operations, exclusively,
were required to work a so-called “platoon schedule” by which they worked a
regular, mandatory schedule of 80.5 hours every two weeks; a half-hour of
overtime coded as “6FE” overtime was built into this regular work schedule.2
After they retired in 2018, Szewczyk and Morikawa petitioned
the trial court for a writ of administrative mandamus and a writ of
traditional mandamus compelling the Orange County Employees Retirement
System (OCERS) and the OCERS Board of Retirement (the Board)
(collectively, the OCERS parties) to include 6FE overtime pay as

1 All further statutory references are to the Government Code

unless otherwise specified.

2 The “6” in 6FE overtime represents planned overtime, the “F”

character represents overtime in the “‘other’” category because this type of
overtime does not fall into any other category, and the final character “E”
represents the deputy sheriff classification code of the employee working the
overtime.

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“‘compensation earnable’” in determining their final compensation and
pension benefit. The court granted the petitions and the OCERS parties
appealed.
We affirm. For the reasons we explain, 6FE overtime pay
constituted compensation earned by persons in Szewczyk and Morikawa’s
same grade or class of positions during the relevant time period, and at the
same rate of pay, and therefore must be included in their compensation
earnable calculation under section 31461, subdivision (a).
FACTS AND PROCEDURAL HISTORY
I.
SZEWCZYK AND MORIKAWA APPLY FOR SERVICE RETIREMENT AND REQUEST
6FE OVERTIME PAY BE INCLUDED IN COMPENSATION EARNABLE
In February 2018, Szewczyk and Morikawa each filed an
application for service retirement with OCERS. In March 2018, they each
requested OCERS approve and include in their compensation earnable, inter
alia, the “[half-hour of] overtime (code 6FE) deputies [were] paid each and
every pay period” as “[t]his overtime applie[d] to all deputies in corrections
assigned the 12-hour work schedule.”3
In June 2019, OCERS denied Szewczyk’s and Morikawa’s
requests. OCERS Director of Member Services, Heidi Halbur, sent
substantively identical letters dated June 11, 2019, to Szewczyk and
Morikawa, explaining the basis for the denial as follows: “[T]he 6FE overtime
you received while working at correctional facilities assigned to the 12-hour
work schedule is not compensation earnable and was properly excluded from

3 For ease of reading, in this opinion, we have omitted some

formatting (such as capitalization and underscoring) from quoted material
found in the briefs, trial court record, and administrative record.

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your final average salary because it is not overtime required to be worked
that is ordinarily worked by others in your same grade/class/rate of pay.” She
further explained: “Your job class at the time of your retirement was deputy
sheriff II. The vast majority of deputy sheriff II’s work in assignments other
than corrections and therefore are not required to work this additional [half-
hour] of 6FE overtime. [¶] This situation is governed by the case Stevenson [v.
Board of Retirement of Orange County Employees Retirement System] (2010)
186 Cal.App.4th 498, where the court rejected the argument that [the
plaintiff], an [Orange County Sheriff’s Department] investigator, should be
classified as a ‘narcotics investigator’ because his assignment necessitated
more overtime than investigators with other assignments. Rather, the Court
of Appeal[] looked to the County’s official job description and class
characteristics of Investigator to conclude that narcotics investigators did not
constitute their own grade or class within the meaning of the CERL. Instead,
there were only five ‘classes’ of positions [deputy sheriff I, deputy sheriff II,
deputy sheriff trainee, investigator, and investigator-polygraph operator].
The court specifically concluded that the law does not require looking for the
smallest unit of workers who have the most in common as to duties,
responsibilities or schedules.”
Halbur further stated: “In reaching my conclusion, I have
followed the direction set out by the court in Stevenson to look to the official
actions of the County defining the various classes characteristics[4].

4 Halbert’s letter contained the following footnote: “For deputy

[sheriff] II, the job duties are, ‘to patrol an assigned area and enforce law and
order; to perform the more difficult and responsible work in guarding and
directing prisoners in a county jail; to act as training or range officer; to
transport and guard prisoners; to perform traffic law enforcement and
accident investigation functions; and to do other work as required.’ The class

4
Corrections duties are just one of a wide range of roles to which a Deputy
Sheriff II can be assigned. As such, the 6FE overtime is not ‘ordinarily
worked by persons in the same grade or class’ as you. Rather, it is limited
only to those in the deputy sheriff II grade assigned to . . . County corrections
facilities that utilize the 12-hour work schedule requiring the [half-hour] of
overtime in each pay period.”
She concluded her letter by advising: “If you disagree with the
above determination, you have the right to petition for review by requesting
an administrative hearing.”
II.
FOLLOWING AN ADMINISTRATIVE HEARING, THE BOARD REJECTS THE HEARING
OFFICER’S PROPOSED FINDINGS AND CONCLUSION 6FE OVERTIME
COMPENSATION SHOULD BE INCLUDED IN COMPENSATION EARNABLE
Szewczyk and Morikawa each timely filed a request for an
administrative hearing. During the three-day administrative hearing held in
April 2021, the hearing officer was presented with the administrative record,
additional documentary evidence proffered by the parties, and live witness
testimony.
On November 9, 2021, the hearing officer issued his proposed
findings of fact, conclusions of law, and recommendation that Szewczyk’s and
Morikawa’s appeals be granted, the 6FE overtime compensation at issue be
regarded as compensation earnable for purposes of calculating their

characteristics distinguishing deputy sheriff II from deputy sheriff I are the
assignment of more difficult, responsible and varied duties which require law
enforcement knowledge and experience and greater exercise of independent
judgement and initiative.” Contrary to the statement in Halbert’s footnote,
the record shows that following the 2008 reorganization of the Orange
County Sheriff’s Department, the roles of deputy sheriff I and deputy sheriff
II in jail operations were indistinguishable from each other.

5
retirement benefits, and their final calculation allowances be adjusted
retroactively to their respective retirement dates.
OCERS filed objections to the hearing officer’s proposed findings
of fact, conclusions of law, and recommendation. The Board approved the
OCERS’s staff recommendation to exercise its authority pursuant to section
31534, subdivision (d) and (1) set the matter for hearing, (2) accept the record
before the hearing officer plus any additional evidence and briefing offered by
the parties, and (3) after consideration of testimony, evidence, briefing, and
argument at a future meeting of the Board, decide the matter itself as if it
had not been referred to the hearing officer.
In April 2022, the Board held a hearing pursuant to section
31534, after which it declined to adopt the hearing officer’s proposed
recommendation and instead affirmed OCERS’s staff calculations excluding
6FE overtime pay from Szewczyk’s and Morikawa’s compensation earnable.
The Board explained the 6FE overtime pay was properly excluded for the
following reasons: “(1) The law excludes from compensation earnable pay for
services rendered outside normal working hours; [¶] (2) The services
rendered by [Szewczyk and Morikawa] during the half hour in question were
not rendered during normal working hours because the half hour was not
ordinarily worked by all persons in the deputy sheriff II grade/class/rate of
pay during the period in question; and [¶] (3) [Szewczyk and Morikawa’s]
grade/class/rate of pay is that of deputy sheriff II, not a hybrid of two
different County classifications.”

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 III.
THE TRIAL COURT GRANTS SZEWCZYK AND MORIKAWA’S VERIFIED PETITION
FOR WRIT OF ADMINISTRATIVE MANDAMUS AND PETITION FOR TRADITIONAL
MANDAMUS
Szewczyk and Morikawa filed a verified petition for writ of
administrative mandamus pursuant to Code of Civil Procedure section 1094.5
and a petition for traditional mandamus pursuant to Code of Civil Procedure
section 1085. They requested the trial court issue (1) a peremptory writ of
mandate to set aside and vacate the Board’s decision and to order the OCERS
parties to issue a new decision holding 6FE overtime pay must be included in
Szewczyk’s and Morikawa’s compensation earnable and to provide them with
all attendant back pay; and (2) a peremptory writ of mandate commanding
the OCERS parties “to refrain from applying OCERS’ new definition of
‘normal working hours’ after [Szewczyk’s and Morikawa’s] retirement in
violation of article I, section 9 of the California Constitution.”
The trial court granted the petitions, concluding: “Following [the
Orange County Sheriff’s Department]’s restructuring of the deputy [sheriff] II
classification as it related to jail deputies in 2008, [Szewczyk and Morikawa]
were treated as a separate grade or class from other deput[y] [sheriff] II[’s]
for purposes of the platoon schedule and 6FE overtime. The 6FE overtime
was ordinarily included in the normal working hours for all deputies assigned
to the jail. Therefore, [Szewczyk’s and Morikawa’s] compensation earnable
must include the 6FE overtime under . . . section 31461 and the California
Supreme Court’s decision in Alameda [County Deputy Sheriff’s Assn. v.
Alameda County Employees’ Retirement Assn. (2020) 9 Cal.5th 1032].”
The OCERS parties filed a motion for reconsideration of the trial
court’s October 14, 2024 order, which the court denied.

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 Judgment was entered in which the trial court ordered the
issuance of a writ directing the OCERS parties to (1) include 6FE overtime,
“which was earned by [Szewczyk and Morikawa] every two weeks during
their final compensation period, in [Szewczyk’s and Morikawa’s]
‘compensation earnable’ within the meaning of . . . section 31461”; (2) “to
adjust [Szewczyk’s and Morikawa’s] retirement allowances such that they are
calculated based on the inclusion of [Szewczyk’s and Morikawa’s] 6FE
compensation in their compensation earnable both prospectively . . . and
retroactively to the dates of [Szewczyk’s and Morikawa’s] respective
retirements with interest thereon”; and (3) “to set aside any previous
administrative decisions inconsistent therewith.”
The OCERS parties appealed.
DISCUSSION
I.
OVERVIEW OF APPLICABLE CERL PROVISIONS
“CERL governs the pension systems maintained by many of the
state’s counties. Each county system is administered by its own retirement
board, which is tasked with implementing CERL’s provisions. Under CERL,
the amount of an employee’s pension benefit is determined as a percentage of
the ‘compensation earnable’ received by the employee during a representative
year of county employment.” (Alameda County Deputy Sheriff’s Assn. v.
Alameda County Employees Retirement Assn., supra, 9 Cal.5th at p. 1052
(Alameda).)
CERL defines the term “compensation” at section 31460 as
“remuneration paid in cash . . . but does not include the monetary value of
board, lodging, fuel, laundry, or other advantages furnished to a member.”

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Section 31461, subdivision (a)(1) defines “‘compensation earnable’” as the
employee’s “average compensation . . . for the period under consideration
upon the basis of the average number of days ordinarily worked by persons in
the same grade or class of positions during the period, and at the same rate of
pay.” Since 2000, CERL has excluded from compensation earnable “overtime
premium pay other than premium pay for hours worked within the normally
scheduled or regular working hours that are in excess of the statutory
maximum workweek or work period applicable to the employee under Section
201 and following of Title 29 of the United States Code.” (§ 31461.6, subd. (a),
italics added; see Alameda, supra, 9 Cal.5th at pp. 1058, 1097, fn. 32 [“In
other words, overtime pay is not excluded if it is earned by an employee as
part of his or her ‘normally scheduled or regular working hours’” and “[o]nly
payment for excess hours, as compared to the employee’s peers, is excluded”].)
Through Assembly Bill No. 340 (2011–2012 Reg. Sess.), which
enacted the California Public Employees’ Pension Reform Act of 2013 (Gov.
Code, § 7522 et seq.), the Legislature amended section 31461 by adding
subdivision (b) to expressly exclude from compensation earnable “any
compensation determined by the local retirement board to have been paid to
enhance a member’s retirement benefit [citation] and any compensation for
services rendered outside normal working hours.” (Alameda, supra, 9 Cal.5th
at p. 1060.) Such amendments also effected a limitation on the amount of
vacation and sick leave and payments made at the termination of
employment that can be included in compensation earnable. (Ibid., citing
section 31461, subd. (b)(2) & (4).) In making such amendments to section
31461, the Legislature sought to limit “pension spiking,” that is “the
manipulation of an employee’s pattern of work and pay to produce inflated
compensation earnable during the final compensation period.” (Alameda,

9
supra, 9 Cal.5th at p. 1061; see Ventura County Employees’ Retirement Assn.
v. Criminal Justice Attorneys Assn. of Ventura County (July 27, 2026,
S2839277) __ Cal.5th __ [2026 Cal. Lexis 3954].)
II.
THE TRIAL COURT DID NOT ERR BY CONCLUDING DEPUTY SHERIFF II’S
WORKING IN JAIL OPERATIONS WERE NOT IN THE SAME “GRADE OR CLASS OF
POSITION” AS DEPUTY SHERIFF II’S WORKING PATROL
In granting the petitions for writs of mandate, the trial court
found that, following the Orange County Sheriff Department’s 2008
reorganization effecting a restructure of the deputy sheriff II classification,
deputy sheriff II’s like Szewczyk and Morikawa who worked in jail operations
did not belong to the “same grade or class of position” within the meaning of
section 31461, subdivision (a) as other deputy sheriff II’s who worked patrol.
The OCERS parties challenge that finding.
Neither section 31461 nor any other CERL provision defines the
term “grade or class of positions” for the purpose of determining
compensation earnable. (Stevenson v. Board of Retirement of Orange County
Employees Retirement System, supra, 186 Cal.App.4th at p. 509 (Stevenson).)
Indeed, the California Supreme Court in Alameda observed: “CERL’s
definition of compensation earnable is both very general and somewhat
inscrutable.” (Alameda, supra, 9 Cal.5th at p. 1058.)
In Alameda, the Supreme Court concluded: “[T]o calculate
compensation earnable, section 31461 uses a retiring employee’s personal
daily rate of pay, while it looks to the number of days ‘ordinarily’ worked by
comparable employees—that is, ‘persons in the same grade or class of
positions during the period, and at the same [base] rate of pay’ [citation] to
determine the number of workdays over which that rate of pay is applied. As

10
a practical matter, a retiring employee’s final compensation is the annual
compensation the employee would have received had he or she worked the
average number of days ordinarily worked by his or her peers during the final
compensation period. To find final compensation, a county retirement board
is presumably required to determine the employee’s compensation during the
final compensation period, divide that figure by the days worked by the
employee in that time to determine his or her average daily rate of pay, and
then multiply that rate by ‘the average [annual] number of days ordinarily
worked’ [citation] by the employee’s peers during the final compensation
period.” (Alameda, supra, 9 Cal.5th at p. 1058, italics added.)
Here, in its order granting the writ petitions, the trial court noted
the following undisputed facts: (1) at all relevant times, both Szewczyk and
Morikawa “were in the civil service classification of deputy sheriff II,
assigned to the Theo Lacy Correctional Facility”; and (2) as of 2019, only 30 of
the 630 employees classified as deputy sheriff II worked in jail operations and
worked the platoon schedule with 6FE overtime.
In addition, following the 2008 reorganization of the Orange
County Sheriff’s Department, only deputy sheriff II’s then working in jail
operations were given the choice of working patrol or continuing to work in
the jail. Deputy sheriff II’s who wished to move from working in the jail to
patrol were not automatically guaranteed that opportunity; rather they first
had to pass training and meet other requirements before entering patrol, and
if any such deputy sheriff II failed to pass such standards, they would be
required to return to jail operations as a deputy sheriff I. Deputy sheriff I’s
who were promoted to the deputy sheriff II classification were required to
leave jail operations and work patrol following the promotion. All deputies
working jail operations, whether deputy sheriff I’s or deputy sheriff II’s

11
performed the same functions with the same level of responsibility and all
deputies worked the same platoon schedule and concomitant 6FE overtime.
Needless to say, deputy sheriff II’s working in jail operations and
deputy sheriff II’s working patrol had very different job duties, unit
recruitment requirements, work locations, and schedules (deputy sheriff II’s
working patrol did not work the platoon schedule or 6FE overtime).
Consequently, the record supports the trial court’s finding in that it shows
deputy sheriff II’s in jail operations, such as Szewczyk and Morikawa, were
not “comparable” to deputy sheriff II’s working patrol. (Alameda, supra, 9
Cal.5th at p. 1058.) As such, deputy sheriff II’s as a general group did not
consist of “persons in the same grade or class of positions” within the
meaning of section 31461, subdivision (a)(1).
The trial court’s finding is consistent with an amendment to
section 31461 that was not effective until after the order granting the writ
petitions. Specifically, the Legislature amended section 31461 to add the
following as new subdivision (a)(2)(A): “To the extent a retirement system has
not defined ‘grade,’ it may define ‘grade,’ [for purposes of determining
compensation earnable in subdivision (a)(1) of section 31461], to mean a
number of employees considered together because they share similarities in
job duties, schedules, unit recruitment requirements, work location, collective
bargaining unit, or other logical work-related group or class. A single
employee shall not constitute a group or class.”5 In its order dated October 14,
2024, granting the writ petitions, the court acknowledged that at that time,

5 Subdivision (a)(2)(B) of section 31461 was also added to

indicate in part: “Subparagraph [(a)(2)](A) shall not be operative in any
county until the board of supervisors of that county, by resolution adopted by
majority vote, makes that subparagraph applicable in the county.”

12
the Legislature had approved these amendments to section 31461, as
Assembly Bill No. 2284 (2023–2024 Reg. Sess.) had passed and been filed
with the Secretary of State, but such amendments would not become effective
until January 1, 2025.
In their opening brief, the OCERS parties rely on a December 20,
2022 resolution of the Orange County Board of Supervisors (Board of
Supervisors) in support of their argument “the County has made clear that it
does not consider ‘custody deputy’ as a grade” under section 31461,
subdivision (a)(1). That resolution, however, does not refer to deputy sheriff
II’s, much less purport to reject the notion deputy sheriff II’s working in jail
operations constitute their own grade or class of positions within the meaning
of section 31461, subdivision (a)(1).
What the resolution does show is that grades within the meaning
of section 31461, subdivision (a)(1), had not previously been designated in
any memorandum of understanding (MOU’s) entered between the County
and the Association of Orange County Sheriffs since at least 2013. The
resolution stated that while such MOU’s “have provided, among other things,
for specific classes of employees, their regular work periods and certain
elements of pay characterized as ‘premium pay[,]’ . . . including on-call pay
and canine handler maintenance pay,” the County and the Association of
Orange County Sheriffs “were not required to designate officially any groups
of employees, due to their different duties, responsibilities, and schedules, as
being in different grades for the purpose of calculating retirement benefits as
there was no reason to do so.” (Italics added.) In the resolution, the Board of
Supervisors expressly acknowledged the County and the Association of
Orange County Sheriffs “have long recognized, in practice, differences in
specialized units of employees in the same general class, based on differences

13
in specialized levels of responsibility, required skills and impact,” but they
“did not have business reasons to distinguish in their MOU’s such different
job responsibilities.” (Italics added.)
Citing section 31461, subdivision (a)’s provision that an
employee’s compensation earnable be based on either the same grade or class
of positions, the resolution proceeded to identify certain units of job
assignments “as employees with different and distinct duties, responsibilities
and schedules which . . . could be deemed a different ‘grade,’ even if the
formal recognition of such distinctions was not required in the past.” The
enumerated list did not include any deputy sheriffs, but the resolution did
not suggest that only the job assignments identified therein might constitute
a different grade “from other employees in the same broader classifications
that are more grounded in seniority and rank” for purposes of calculating
compensation earnable under section 31461.6 The resolution, therefore, only
provided support for the trial court’s determination the deputy sheriff II’s
working in jail operations are not part of the same grade as deputy sheriff II’s
working patrol notwithstanding the absence of any such reference in the
effective MOU’s.
III.
THE 6FE OVERTIME PAY MUST BE INCLUDED IN COMPENSATION EARNABLE
Here, there does not appear to be any dispute that the half-hour
of overtime required of deputy sheriff II’s in the custodial setting pursuant to
the platoon schedule constitutes, with respect to that specific group of deputy

6 The resolution identified the following job assignments:

homicide detail, hazard devices squad, statewide transportation, special
victims detail, special weapons and tactics team, tactical support team, major
accident reconstruction team, District Attorney special assignment unit and
homicide unit, and canine handlers.

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sheriffs, “premium pay for hours worked within the normally scheduled or
regular working hours that are in excess of the statutory maximum
workweek or work period applicable to the employee under Section 201 and
following of Title 29 of the United States Code” within the meaning of section
31461.6, subdivision (a). Given the trial court’s correct finding that deputy
sheriff II’s, like Szewczyk and Morikawa, who worked in the custodial
setting, are in a grade separate from deputy sheriff II’s who work on patrol as
discussed ante, the court properly concluded the 6FE overtime must be
included in calculating Szewczyk’s and Morikawa’s compensation earnable as
premium pay for hours worked within the normally scheduled or regular
working hours under section 31461.6.
IV.
STEVENSON IS DISTINGUISHABLE FROM THE INSTANT CASE
In their opening brief, the OCERS parties argue this court should
reverse the judgment because the trial court erroneously “reject[ed]” the
opinion issued by a panel of this court in Stevenson, supra,186 Cal.App.4th
498, which they contend “involv[ed] nearly identical arguments” as those
presented by the OCERS parties in the instant case. For the reasons we
explain, Stevenson is distinguishable.
Stevenson, supra, 186 Cal.App.4th 498 involved an Orange
County Sheriff’s Department deputy sheriff who in March 1998 was
ultimately promoted the position of investigator with “the south narcotics
bureau.” (Id. at p. 502.) As a narcotics investigator, he was required to be
“available to work overtime whenever it was necessary to complete an
ongoing investigation” beyond his regular work schedule. (Ibid.) Stevenson
testified he worked 20 hours or more of overtime each week until June 2001,
when he was seriously injured and applied for disability retirement. (Ibid.)

15
After the Board concluded his overtime should be excluded from his
compensation earnable, he filed a petition for writ of administrative mandate.
Stevenson argued, inter alia, the Board erred by concluding it did not have
authority “to determine that narcotics investigators were properly a grade or
class of position” within the meaning of section 31461 and a consistent prior
resolution issued by the Board, “such that they would be entitled to overtime
as a part of their compensation earnable.” (Stevenson, supra, 186 Cal.App.4th
at p. 504.) The trial court denied the petition. (Id. at p. 505)
A panel of this court affirmed, holding the administrative record
contained sufficient evidence Stevenson’s grade or class within the meaning
of section 31461 was that of investigator and not narcotics investigator.
(Stevenson, supra, 186 Cal.App.4th at p. 501.) Consequently, the overtime he
worked that was unique to narcotics investigators had been properly
excluded from his compensation earnable. (Ibid.)
As pointed out by the trial court in its order, Stevenson is
factually distinguishable from the instant case because the overtime at issue
in Stevenson was not part of Stevenson’s standard, required working hours
for his position as narcotics investigator, but for hours in excess of his regular
schedule “whenever it was necessary to complete an ongoing investigation.”
(Stevenson, supra, 186 Cal.App.4th at p. 502.) In contrast, the 6FE overtime
at issue in the instant case is built into the regular work schedule of deputy
sheriff II’s working in jail operations rendering the pay received for that time
“premium pay for hours worked within the normally scheduled or regular
working hours that are in excess of the statutory maximum workweek or
work period applicable to the employee.” (§ 31461.6, subd. (a), italics added.)
In reviewing the evidence before it, the Stevenson court noted the
memoranda of understanding in effect during the relevant time period only

16
“identified five ‘classes’ of positions within the peace officer unit: (1) deputy
sheriff I; (2) deputy sheriff II; (3) deputy sheriff trainee; (4) investigator; and
(5) investigator-polygraph operator.” (Stevenson, supra, 186 Cal.App.4th at
p. 510.) The court further noted the memoranda of understanding did not
identify the narcotics investigator position as a separate class. (Ibid.) But as
explained in the Board of Supervisors’ December 20, 2022 resolution
discussed ante, which did not exist when Stevenson was decided, the County’s
MOU’s with the Association of Orange County Sheriffs did not designate
grades or classes of positions for purposes of determining compensation
earnable. Thus, that resolution confirms, the absence of such a designation in
the MOU’s is not probative of whether one exists.
In addition, in affirming the trial court’s finding narcotics
investigators did not constitute a separate grade or class of position, the
Stevenson court observed Stevenson agreed the description of the investigator
position posted on the County Web site accurately described his position of
narcotics investigator as well. (Stevenson, supra, 186 Cal.App.4th at p. 510.)
And the appellate court noted evidence of a “‘Title Schematic’” that only listed
class titles of “Investigator I” and “Investigator” and “their grades as P-06
and P-09.” (Ibid.)
Nothing in Stevenson, however, suggests the classes or groups
identified in a job description or in title schematics is dispositive with respect
to the scope of grades or classes of positions under section 31461,
subdivision (a)(1). As the Stevenson court’s holding with respect to grade or
class of positions was based entirely on the evidence before it, which in
contrast to the instant case, did not include evidence showing significant
differences between groups of employees with respect to job duties, schedules,

17
unit recruitment requirements, and work locations, its analysis with respect
to grade or class of positions is not apt.
V.
THE TRIAL COURT DID NOT IGNORE THE “SAME RATE OF PAY” LANGUAGE OF
SECTION 31461, SUBDIVISION (a)
In their opening brief, the OCERS parties argue in determining
compensation earnable, “the comparative peer group defined as ‘persons in
the same grade or class of positions[,]’ must also receive the same average
compensation in order to satisfy . . . [section] 31461[, subdivision (a)]’s ‘same
rate of pay’ statutory language.” They argue that given evidence the pay scale
for deputy sheriff II is generally higher than and thus different from the pay
scale for a deputy sheriff I, the trial court erred because it ignored the “same
rate of pay” language of section 31461, subdivision (a) when it “creat[ed] a
‘custody deputy’ grade or class based on a hybrid subgroup encompassing
both deputy sheriff I’s and deputy sheriff II’s.”
We first observe that in light of the platoon schedule and its
concomitant 6FE overtime, deputy sheriff II’s working in jail operations are
arguably paid at a different rate of pay than deputy sheriff II’s who work on
patrol and do not work that schedule. In any event, the record does not
establish the trial court concluded that deputy sheriff I’s and deputy sheriff
II’s who work in the jails combine to form a single grade under section 31461,
subdivision (a). Instead, in its order granting the writ petitions, the court
found the OCERS parties’ “decision to solely compare [Szewczyk and
Morikawa] to others classified as deputy [sheriff] II for purposes of
calculating their compensation earnable was . . . arbitrary and unsupported
by evidence.”

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 In its order, the trial court acknowledged Szewczyk and
Morikawa’s argument “they should be considered part of a grade/class
consisting of ‘custody deputies,’ including deputies who worked in the jails
facilities and were required to work the [half-hour of] overtime,” given that
post-2008 Orange County Sheriff’s Department restructuring, the job duties
of deputy sheriff II’s in jail operations “essentially merged with those of”
deputy sheriff I’s. The court, however, did not expressly find the existence of
such a grade or class of custody deputies.
Instead, the trial court found: “Following [the Orange County
Sheriff’s Department]’s restructuring of the deputy [sheriff] II classification
as it related to jail deputies in 2008, [Szewczyk and Morikawa] were treated
as a separate grade or class from other deput[y] [sheriff II’s] for purposes of
the platoon schedule and 6FE overtime,” and “[t]he 6FE overtime was
ordinarily included in the normal working hours for all deputies assigned to
the jail.” (Italics added.) On that basis, the court concluded, “[Szewczyk’s and
Morikawa’s] compensation earnable must include the 6FE overtime
under . . . section 31461 and the California Supreme Court’s decision in
Alameda.” We discern no error in the trial court impliedly finding that, under
the circumstances presented, deputy sheriff II’s in jail operations constitute a
grade or class of positions within the meaning of section 31461, subdivision
(a)(1).
VI.
SUBSTANTIAL EVIDENCE
The OCERS parties also argue “substantial evidence requires
reversal” because the “administrative record is replete with evidence for
treating [Szewczyk’s and Morikawa’s] overtime as non-pensionable” and the
trial court’s ruling otherwise “lacks substantial evidence.” We review a court’s

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ruling on a petition for writ of administrative mandate for substantial
evidence. (Stevenson, supra, 186 Cal.App.4th at p. 508.) Whether substantial
evidence might have supported a denial of Szewczyk and Morikawa’s writ
petitions is irrelevant. For the reasons we have explained, substantial
evidence supports the trial court’s findings underlying its order granting the
writ petitions. We find no error.
DISPOSITION
The judgment is affirmed. Respondents to recover costs on
appeal.

MOTOIKE, P. J.

WE CONCUR:

MOORE, J.

SANCHEZ, J.

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