Markman v. County of Los Angeles

• Decision Date: 07 November 1973
• Citation: 35 Cal.App.3d 132,110 Cal.Rptr. 610
• Court: California Court of Appeals Court of Appeals
• Parties: Marvin J. MARKMAN, Plaintiff and Appellant, v. The COUNTY OF LOS ANGELES, Defendant and Respondent. Civ. 41317.

Page 610

110 Cal.Rptr. 610

35 Cal.App.3d 132

Marvin J. MARKMAN, Plaintiff and Appellant, v. The COUNTY OF LOS ANGELES, Defendant and Respondent.

Civ. 41317.

Court of Appeal, Second District, Division 1, California.

Nov. 7, 1973.

Hearing Denied Jan. 24, 1974.

Bruce P. Wolfe, Los Angeles, for plaintiff and appellant.

John D. Maharg, Co. Counsel, and Fred W. Clough, Deputy Co. Counsel, Los Angeles, for defendant and respondent.

LILLIE, Associate Justice.

Plaintiff brought this action to recover compensation for overtime while working as a deputy sheriff for defendant county, for which he had been unable to take equivalent time off. The trial court denied recovery and entered a judgment in defendant's favor; plaintiff appeals therefrom.

The facts are established by stipulation. Plaintiff was employed as a deputy sheriff by defendant from November 29, 1957, until some time in May 1966, when he voluntarily terminated his employment. During the years 1960 through 1965, inclusive, he was required by the nature of his duties, translated into specific orders by his superiors which plaintiff had no power to refuse to obey, to work a total of 1191 hours overtime ¹ for which he was never compensated. During these years Los Angeles County Ordinance Number 6222, specifically section 130 thereof, provided that whenever any person employed by defendant county was compelled to work overtime he was entitled to equivalent time off, but most of this reciprocal time had to be taken in the same calendar year the overtime had occurred. A carry-over to a maximum of 18 days (144 hours) was permitted subject to the approval of plaintiff's superiors, but even this had to be taken as time off within the next calendar year. Any overtime not converted into commensurate time actually taken off under the foregoing formula was, in the express language of section 130 of the ordinance, 'lost.' ²

Under section 135(1) ³ monetary payment for overtime was permitted only if authorized by the county's Chief Administrative Officer prior to the time actually worked; plaintiff concedes that no such authorization had ever been given respecting any of the overtime hours at issue. Because of the press of his duties, as scheduled by his superiors, and wholly without neglect on his part plaintiff was unable to take equivalent time off for any of the 1191 overtime hours at issue pursuant to the requirements of the subject ordinance. Thus he brought the within action seeking monetary compensation for said overtime in a sum based upon his regular hourly wage prevalent at the times these overtime hours were accumulated.

Appellant convincingly argues that if he is not permitted to recover a monetary judgment against defendant he will be penalized for something beyond his control because during the working years at issue he would have taken time off equivalent to the overtime hours had he been permitted to do so by his superiors. However, under the provisions of the subject ordinance, as construed in the light of definitive statutory and case law authority, we are compelled to agree with the finding of the trial court that plaintiff is not entitled to recover in lieu of time off not taken regardless of the obvious hardship of such a result.

The terms and conditions relating to employment by a public agency are strictly controlled by statute or ordinance, rather than by ordinary contractual standards; and one who accepts such employment, thereby benefiting in ways denied an employee of a private employer, must in turn relinquish certain rights which are enjoyed by private employees (City of San Diego v. American Federation of State etc. Employees, 8 Cal.App.3d 308, 312--313, 87 Cal.Rptr. 258), one such disability being that the public employee is entitled only to such compensation as is expressly provided by statute or ordinance regardless of the extent of services actually rendered. (County of San Diego v. Milotz, 46 Cal.2d 761, 767, 300 P.2d 1; Jarvis v. Henderson, 40 Cal.2d 600, 607, 255 P.2d 426; Martin v. Henderson, 40 Cal.2d 583, 591, 255 P.2d 416; McAuliffe v. Kane, 54 Cal.App.2d 288, 296, 128 P.2d 932; Vogel v. White, 134 Cal.App. 252, 254, 25 P.2d 233.)

In Martin v. Henderson, 40 Cal.2d 583, 255 P.2d 416, plaintiffs, highway patrolmen employed by the State, similarly had accumulated overtime for which ordinarily they would be entitled to equivalent time off, but which they had been unable to take, also for reasons beyond their control; after termination of their employment they also sued for monetary compensation therefor. The trial court entered judgment in their favor (a lump sum payment upon termination of employment which was authorized by statute, and an award for overtime), but our Supreme Court modified the judgment to remove therefrom the sum awarded as compensation for overtime on the ground that there was no statutory authority for such payment. The court said at 590, 255 P.2d p. 420: '. . . When the (public)...