Nolan v. City of Anaheim

KENNARD, J., Dissenting.

California’s Public Employees’ Retirement System (PERS) manages the pension benefits provided to more than 1.2 million public employees, retirees, and their families under the Public Employee Retirement Law (PERL). (Gov. Code, § 20000 et seq.)1 Steven W. Nolan, a police officer for the City of Anaheim, whose employees are members of PERS, applied for a disability retirement based on a mental disability—his depression and anxiety stemming from fear that he would be killed or injured for lack of backup by fellow officers were he to return to duty in the Anaheim Police Department. The majority holds that to qualify for disability retirement Nolan must show not only that he is incapacitated to perform his usual duties for the Anaheim Police Department, but also that his incapacity precludes him “from performing the usual duties of a patrol officer for other California law enforcement agencies.” (Maj. opn., ante, at p. 344.) That holding subverts the clear intent of the Legislature, overrules some 30 years of PERS administrative practice and precedent, as well as court decisional law, and sketches a new and unworkable test of disability. Therefore, I cannot and do not join the majority.

I.

After Steven Nolan graduated from the sheriff’s academy at the top of his class, the City of Anaheim hired him in 1984. In 1991, he joined the gang investigative unit, but after observing instances of what he believed to be excessive force by fellow officers, in 1992 he sought and received a transfer back to patrol duty. When a department investigation failed to substantiate his allegations of misconduct by the gang unit officers, Nolan himself was charged with and found to have violated certain department rules, leading to his dismissal in 1993.

*348In August 1994, an arbitrator reversed the dismissal and ordered Nolan’s reinstatement. Soon Nolan began receiving anonymous calls threatening his life; and the President of the Anaheim Police Association warned him in the association’s newsletter, “If you want your job back ... it is still here but I won’t work with you.” Nolan’s work-related depression led him to apply for disability retirement in September 1994.

An administrative law judge took evidence, and in October 1999 he denied Nolan’s application, finding Nolan had failed to establish “his substantial inability to perform his usual duties” and therefore was not mentally incapacitated. The City of Anaheim adopted that decision.

Nolan petitioned the superior court for a writ of mandate. The court reviewed the administrative record, which included reports from three mental health professionals who had interviewed Nolan. Dr. William Winter, the only one to have seen Nolan repeatedly, concluded after the last interview that Nolan was suffering from anxiety disorder and could not return as a police officer with the City of Anaheim, or “with any other municipality in Southern California,” but might be able to be a police officer in a distant state such as Illinois where “his problems with the City of Anaheim” were unlikely to catch up with him. Dr. Samuel Dey was of the view that Nolan was suffering from depression and as a result “his ability to function in the work setting would be significantly impaired.” In the opinion of Dr. Melvin Schwartz, Nolan did “not have a psychiatric injury,” although his fear of personal harm were he to return to work was “a realistic concern.” The superior court found that Nolan’s fears “make it emotionally and mentally, although not physically, impossible” for him “to return to law enforcement,” and concluded that Nolan suffered a “permanent psychological disability.” Accordingly, in October 2000 the court issued a writ directing the city to find Nolan “permanently incapacitated from working for the City of Anaheim,” and thus entitled to disability retirement. The city appealed.

The Court of Appeal reversed, holding that the test was not whether Nolan could perform the duties of a police officer in Anaheim (the test used by the superior court), but whether he was incapacitated “to work in a similar position elsewhere in the state.” It derived that test from language in section 21156 requiring physical or mental incapacity to perform “duties in the state service.” We granted Nolan’s petition for review to resolve the meaning of this statutory language.

II.

The paramount goal in construing statutes is to ascertain the Legislature’s intent. (Palmer v. G.T.E California, Inc. (2003) 30 Cal.4th 1265, 1271 [135 *349Cal.Rptr.2d 654, 70 P.3d 1067].) Because the words of the statute are the most reliable indication of that intent, the statutory language is the starting point. (In re J.W. (2002) 29 Cal.4th 200, 209 [126 Cal.Rptr.2d 897, 57 P.3d 363]; People v. Gardeley (1996) 14 Cal.4th 605, 621 [59 Cal.Rptr.2d 356, 927 P.2d 713].) If that language is clear and unambiguous, no further inquiry is called for. (Ibid.)

Here, the statutory language is clear and unambiguous. Section 20069 defines state service as “service rendered as an employee or officer ... of the state, the university, a school employer, or a contracting agency, for compensation, and only while he or she is receiving compensation from that employer . . . .” (§ 20069, subd. (a), italics added.) The majority tellingly deletes the final three words from this sentence, thus altering the statutory meaning. (Maj. opn., ante, at p. 341.) Read in its entirety, the section provides that an employee renders state service to, and is paid by, a particular employer (“that employer”), whether the employer is the State of California, the University of California, a school employer, or one of various public entities that contract with PERS for employee coverage.

Section 21156, which governs disability retirement, provides: “If the medical examination and other available information show to the satisfaction of the [PERS Board of Administration], or in [the] case of a local safety member, other than a school safety member, the governing body of the contracting agency employing the member, that the member is incapacitated physically or mentally for the performance of his or her duties in the state service and is eligible to retire for disability, the board shall immediately retire him or her for disability . . . .” (§ 21156, italics added.) In plain language, the statute speaks not of incapacity for a job in statewide public service, but more narrowly of incapacity to perform the employee’s “duties in the state service,” that is, duties the employee performs for a particular public employer. This means that state service, as applied to an employee of an agency that has contracted for PERS coverage, pertains to the service for which the employee is paid by a particular agency.

The majority, however, construes the statutory term the “state service” to mean “all forms of public agency service that render an employee eligible” for disability retirement. (Maj. opn., ante, at p. 342.) Thus, it requires Nolan to show that he is incapacitated to perform not just his usual duties as a City of Anaheim patrol officer, but also that he is incapacitated to perform the “usual duties of a patrol officer” (maj. opn., ante, at p. 344) for any other California public agency that hires patrol officers. The majority does not suggest how a city police officer such as Nolan could possibly show that he could not perform the usual duties of a patrol officer for the wide array of potential California public employers, including the California Highway *350Patrol, the University of California, numerous school employers, or an even greater number of localities and public agencies, because the usual duties of a patrol officer vary from agency to agency.

III.

Courts normally accord great weight to an administrative interpretation of a statute unless it is clearly erroneous. (City of Huntington Beach v. Board of Administration (1992) 4 Cal.4th 462, 470, fn. 7 [14 Cal.Rptr.2d 514, 841 P.2d 1034]; City of Oakland v. Public Employees’ Retirement System (2002) 95 Cal.App.4th 29, 39 [115 Cal.Rptr.2d 151]; City of Sacramento v. Public Employees Retirement System (1991) 229 Cal.App.3d 1470, 1478 [280 Cal.Rptr. 847]; see Bonnell v. Medical Bd. of California (2003) 31 Cal.4th 1255, 1265 [8 Cal.Rptr.3d 532, 82 P.3d 740].) This is especially appropriate when, as here, the agency’s interpretation is a product of its expertise and administrative experience. (Dowhal v. SmithKline Beecham Consumer Healthcare (2004) 32 Cal.4th 910, 929-930 [12 Cal.Rptr.3d 262, 88 P.3d 1]; Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 22 [78 Cal.Rptr.2d 1, 960 P.2d 1031].) Unlike the majority, I would follow PERS’s interpretation of the statutory scheme because it is consistent with the Legislature’s intent.

PERS, which has filed an amicus curiae brief, is the administrative agency charged with applying the provisions of the PERL. Under the statutory scheme, although the City of Anaheim made the determination of disability for Nolan as a local safety member (§ 21156), it is PERS that must determine disability “for most state employees and local non-safety employees” of contracting local agencies.

PERS has long read the PERL to require it to determine disability based on whether applicants are incapacitated to perform their actual usual duties. (See In The Matter of Ruth A. Keck (2000) Cal. PERS Bd. Admin., Precedential Dec. No. 00-052 [“In determining eligibility for disability retirement, the actual and usual duties of the applicant must be the criteria upon which any impairment is judged.”].)

The majority dismisses the concerns of amicus curiae PERS, which will have to apply the majority’s test, that a statewide test applicable to all California public employees with PERS coverage is “not administrable” because of the multiplicity of such public employers throughout the state. The majority seemingly has accepted the bland assurance of counsel for the city at *351oral argument that “Everybody knows what a patrol officer does.” But as amicus curiae PERS points out, although it may be possible to presume certain duties that “other police departments require of police officers,” it cannot be presumed that “uniform circumstances of employment” exist in other cities and other public agencies statewide. PERS notes that “job classifications and descriptions from around the state for a certain position title would not describe identical duties.” Thus, under the majority’s holding PERS will be required to assume what duties are most frequently assigned to a given position in order to evaluate a particular employee’s disability application. Applying such a generalized and speculative standard will result in an administrative nightmare, and, according to PERS, will prevent it from administering its retirement system fairly.

IV.

The majority’s holding is also contrary to over 30 years of decisions by California courts. In Mansperger v. Public Employees’ Retirement System (1970) 6 Cal.App.3d 873 [86 Cal.Rptr. 450], a Court of Appeal decision, the applicant for disability retirement was a Fish and Game warden, that is, an employee of the State of California whose duties were defined in a job description applicable to all state game wardens. (Id. at pp. 874-875.) It was therefore relatively easy to determine whether the applicant’s physical limitation on lifting heavy objects made him substantially unable to perform his actual usual duties as a State of California Fish and Game warden. (Id. at p. 876.) But when, as here, the applicant works for a local agency that has contracted with PERS, the job descriptions for positions with the same title will vary from local employer to local employer.

In Hosford v. Board of Administration (1978) 77 Cal.App.3d 854, 860-861 [143 Cal.Rptr. 760], the Court of Appeal concluded that an applicant’s usual duties are not defined exclusively by a job’s formal description or its physical requirements, but are determined in light of the actual demands of the job the applicant has been performing. (See Thelander v. City of El Monte (1983) 147 Cal.App.3d 736 [195 Cal.Rptr. 318] [usual duties test applied to injured trainee who as yet had no actual usual duties].)

Unlike the actual usual duties test, the majority’s test is based on generic duties common to similarly titled jobs, and it disregards altogether the actual duties that the applicant was required to perform and for which the applicant may now be incapacitated.

V.

Here the statutory language is clear. Read together, sections 20069 and 21156 reflect the Legislature’s intent that an employee covered by PERS is *352physically or mentally disabled when the employee is substantially unable to perform the actual and usual duties of the position he or she holds for the current employer. If that employer is the State of California, or a statewide entity such as the University of California, the usual duties of the applicant may be properly determined in part by reference to a job description applicable statewide. But if, as here, the employer is a local contracting agency the usual duties of the applicant are those required by the particular employer of the applicant. In either case the applicant’s actual usual duties for the current employer are the correct standard for determining incapacity.

The majority, however, ignores the Legislature’s intent as captured in the plain language of the statutes at issue. Instead it finds ambiguity where there is none. Even if the statutory language were ambiguous, moreover, a court must resolve any ambiguity in favor of the employee seeking disability retirement. (Ventura County Deputy Sheriffs’ Assn. v. Board of Retirement (1997) 16 Cal.4th 483, 490 [66 Cal.Rptr.2d 304, 940 P.2d 891].) Here, there is no ambiguity in these statutes, apart from that the majority creates by not reading them carefully.

Today’s decision is a serious matter for any law enforcement officer working for a local public agency in this state, or anyone considering a career in local law enforcement. It means that, to obtain a disability retirement, it is not enough that an officer is no longer able, because of physical or mental injury, to perform the duties assigned by the employing agency. Rather, a city or other local agency may deny a disability retirement if the officer might be able to perform the duties of a roughly comparable position for some other public agency anywhere in this large state. This result is not compelled by the governing statute, it is contrary to the statute’s established administrative construction, and it imposes a heavy burden on injured employees. Our law enforcement officers deserve better.

I would reverse the Court of Appeal’s judgment with directions to affirm the superior court’s judgment granting petitioner the relief he seeks.

Werdegar, J., concurred.

Respondent’s petition for a rehearing was denied September 1, 2004. Kennard, J., and Werdegar, J., were of the opinion that the petition should be granted.

All statutory references, unless otherwise noted, are to the Government Code.

This opinion is available at <http://www.calpers.ca.gov/eip-docs/about/Ieg- reg-statutes/board-decisions/past/00-05-keck.pdf> (as of July 1, 2004).