Bowers v. City of San Buenaventura

Citation75 Cal.App.3d 65,142 Cal.Rptr. 35
CourtCalifornia Court of Appeals
Decision Date15 November 1977
PartiesDarrell C. BOWERS, Plaintiff and Respondent, v. CITY OF SAN BUENAVENTURA, Defendant and Appellant. Civ. 49707.

Donald S. Greenberg, City Atty., Ventura, and David T. Romney, Deputy City Atty., for defendant and appellant.

Ghitterman, Schweitzer & Herreras and Allan S. Ghitterman, Ventura, for plaintiff and respondent.

ASHBY, Associate Justice.

Defendant and appellant City of San Buenaventura (hereinafter City) appeals from a judgment granting a peremptory writ of mandate to compel City to pay salary and to follow certain personnel procedures on account of temporary military leave for plaintiff and respondent Darrell Bowers, a police officer and employee of City.

Plaintiff is a member of the National Guard. He took temporary military leave of absence from his employment as a police officer in order to serve National Guard duty for 7 days in 1973, 19 days in 1974, 6 days in 1975, and 5 days in 1976.

Military and Veterans Code sections 395 1 and 395.01 2 provide that a public employee shall be entitled to temporary military leave of absence for certain National Guard duty and "shall be entitled to receive his salary or compensation as such public employee for the first 30 calendar days of any such absence."

Contending that these statutes are inapplicable to it, City follows certain personnel and salary practices with regard to temporary military leave which are not consistent with the statutes. The trial court found the statutes applicable and ordered City to revise its procedures and pay compensation to plaintiff in accordance with its interpretation.

City's practice has been that the employee should serve his military duty on his own time if his work schedule can be adjusted; that when the employee must take temporary military leave on days he would have been scheduled to work, he should not receive "double" pay, that is, both his regular pay from City and his pay from the military, and that therefore the employee must turn over to the City his military pay check in order to collect his regular salary; and, that if the employee wishes to keep both checks, he must "make up" the days lost. Plaintiff Bowers was on military leave for a total of 37 regularly scheduled work days between 1973 and 1976. He was paid his regular salary, without turning over his military pay, for 29 of these days because he made them up by working on days that otherwise would have been days off. He was not paid for the other eight days because he would not make them up or relinquish his military pay to City.

The trial court found City's practices to be inconsistent with section 395.01. It ordered City (1) to allow plaintiff to keep all military pay; (2) to refrain from shifting plaintiff's regularly scheduled working hours to reduce the time spent on temporary military leave; (3) to pay plaintiff up to 30 days' salary per year for days he is scheduled to work at the same time military duty is ordered; and (4) to pay plaintiff at overtime rates for all time worked over the regularly scheduled work days. The amount due was calculated at $3,072.52.

On appeal City's main contention is that section 395.01 does not apply to City, and that therefore City is free to follow its own policy with respect to compensation of its employees who are on temporary military leave. City is a chartered city and contends (1) that the Legislature did not intend section 395.01 to apply to chartered cities and (2) that section 395.01 cannot constitutionally be applied to chartered cities because compensation of city employees is exclusively a municipal affair within the meaning of article XI, section 5 of the California Constitution. (See Bishop v. City of San Jose, 1 Cal.3d 56, 62-63, 81 Cal.Rptr. 465, 460 P.2d 137.) These contentions are without merit.

City then argues that if section 395.01 is applicable it is unconstitutional on other grounds. This contention likewise lacks merit.

Finally City contends that assuming section 395.01 is applicable, the trial court erroneously interpreted the statute. This contention is partially correct.


City's contention that the Legislature could not constitutionally apply section 395.01 to chartered cities because it involves an exclusively municipal affair is clearly without merit. Unlike the statutes in the cases cited by City, 3 the purpose of sections 395 and 395.01 is not to regulate the compensation of municipal employees as such. Their main purpose is to provide for national defense and civil calamity (see Mil. & Vet.Code, §§ 128, 146) by encouraging public employees to join the military reserve organizations so as to be ready for call in times of emergency. (21 Assem. Interim Com. Rep. on Ways and Means (1963) No. 8, 2 Appendix to Assem. J. (1963 Reg.Sess.) p. 86.) 4

Military and Veterans Code section 395.1 provides reemployment rights to returning veterans. That section has long been held to reflect a matter of statewide concern which overrides the charters of chartered cities. (Cunningham v. Hart, 80 Cal.App.2d 902, 908-910, 183 P.2d 75; Palaske v. City of Long Beach, 93 Cal.App.2d 120, 125, 208 P.2d 764; Murdy v. City of Los Angeles, 201 Cal.App.2d 468, 471, 20 Cal.Rptr. 69.)

City argues a distinction should be drawn between compelling cities to grant temporary military leave and reemployment rights, versus compelling them to grant temporary military leave with pay. City argues that even if the former is a legitimate matter of statewide concern, the latter is not. But the Legislature could reasonably conclude that unless the employee received temporary military leave with pay, the statewide purpose of encouraging public employees to participate in military training could not be achieved. (See 21 Assem. Interim Com. Rep. on Ways and Means, No. 8, supra at pp. 87-88.) We conclude that section 395.01 can constitutionally be applied to chartered cities.

Alternatively, City argues that as a matter of legislative intent section 395.01 does not apply to chartered cities. The applicability of section 395.01 is determined by Military and Veterans Code section 389, subdivisions (b) and (c), which, with the exception of state civil service employees (see Gov.Code, § 19770 et seq.), defines "Public employee" as any officer or employee of a public agency, and "public agency" as "the State, or any county, city and county, city, municipal corporation, school district, irrigation district, water district, or other district." (Emphasis added.) Obviously, City literally fits the definition, which includes cities. City cites a number of different statutes in the Government Code in which the Legislature expressly made clear whether it meant the term "city" to include both a general law city and a chartered city. Thus, in an appropriate case, it might be determined as a matter of legislative intent that the term "city" was not intended to apply to chartered cities. (Ector v. City of Torrance, 10 Cal.3d 129, 132-133, 109 Cal.Rptr. 849, 514 P.2d 433.) We do not believe this is such a case, however. Ector involved a state statute prohibiting cities from prescribing a residence requirement for city employees. It dealt, as such, with the qualifications of an employee. The court concluded that the Legislature did not intend the prohibition to apply to chartered cities. As pointed out above, however, the purpose of section 395.01 is not to regulate compensation as such. Its effect upon employee compensation is incidental to the general statewide purpose of encouraging membership in the military reserve organizations. (See Dept. of Water & Power v. Inyo Chem. Co., 16 Cal.2d 744, 753-754, 108 P.2d 410.) If the granting of military leave with pay is essential to achieve this purpose, it is not reasonable to assume that the Legislature intended to exclude from the scope of the statute the many employees of chartered cities.

City points out that the state does not compel private employers to grant military leave with pay. (Mil. & Vet.Code, § 394.5.) City's argument that this constitutes denial of equal protection of the laws is clearly without merit, since the state can reasonably treat public and private employers differently. We do not find persuasive City's argument that, since the Legislature does not compel private employers to grant leave with pay, it did not intend to compel chartered cities to do so. The fact that the Legislature dealt separately, although similarly, with state civil service employees (Gov.Code, § 19770 et seq.) is likewise unpersuasive that it intended to exclude chartered cities from regulation.

City next argues that by requiring City to pay plaintiff while he is on temporary military leave the state compels City to expend money which does not benefit City's citizens, in effect requiring City to make a "gift" of public funds for a nonmunicipal purpose. 5 This argument is not persuasive. It is not correct to say that City gains no benefit from this provision, since its existence may be helpful to recruitment and employee morale, and military training may improve plaintiff's performance on the job. (21 Assem. Interim Com. Rep., No. 8, supra at pp. 87-88.) That the state requires local public agencies to engage in programs which benefit the entire citizenry of the state, and that this incidentally requires local expenditures, does not establish that the state is thereby compelling a "gift" of local public agency funds. (See Dept. of Water & Power v. Inyo Chem. Co., supra,16 Cal.2d 744, 753-754, 108 P.2d 410.) City's argument that it would be more fair for the state to subsidize such activities directly, rather than to compel local public agencies to do so, should be addressed to the Legislature.


Having found section 395.01 to be...

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1 cases
  • Wright v. City of Santa Clara
    • United States
    • California Court of Appeals
    • August 30, 1989
    ...military pay check as a condition of receiving the pay to which he is entitled under section 395.01. (Bowers v. City of San Buenaventura (1977) 75 Cal.App.3d 65, 72, 142 Cal.Rptr. 35.) It is the policy of this state to encourage public employees to participate in military training and the L......

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