Boxx v. Board of Administration

• Decision Date: 29 December 1980
• Citation: 170 Cal.Rptr. 538,114 Cal.App.3d 79
• Parties: Otis BOXX, Jr., Petitioner and Respondent, v. BOARD OF ADMINISTRATION, PUBLIC EMPLOYEES' RETIREMENT SYSTEM, State of California, and Housing Authority of the City of Los Angeles, a Public Corporation, Respondents and Appellants. Civ. 56166.
• Court: California Court of Appeals Court of Appeals

Page 538

170 Cal.Rptr. 538

114 Cal.App.3d 79

Otis BOXX, Jr., Petitioner and Respondent, v. BOARD OF ADMINISTRATION, PUBLIC EMPLOYEES' RETIREMENT SYSTEM, State of California, and Housing Authority of the City of Los Angeles, a Public Corporation, Respondents and Appellants.

Civ. 56166.

Court of Appeal, Second District, Division 5, California.

Dec. 29, 1980.

Hearing Denied March 11, 1981.

George Deukmejian, Atty. Gen., and David W. Halpin, Deputy Atty. Gen., for respondent and appellant Public Employees' Retirement System.

Telanoff, Wallin, Kress & Dilkes, Robert L. Kress, Peter L. Wallin and Cary S. Reisman, Santa Monica, for respondent and appellant Housing Authority of the City of Los Angeles.

Samuel J. Wells, Jr., Los Angeles, for petitioner and respondent Otis Boxx.

STEPHENS, Associate Justice.

The Housing Authority of the City of Los Angeles (hereinafter referred to as HACLA) and the Public Employees' Retirement System (hereinafter referred to as PERS) appeal from a judgment ordering the issuance of a writ of mandamus. The writ compelled them to grant respondent a "local safety member" classification, to amend the original contract between PERS and HACLA to provide classification for respondent as a "local safety member," and to grant respondent a disability retirement.

We conclude that the trial court's judgment should be affirmed because: (1) HACLA, under contract with PERS, intended to cover all of its employees and PERS also so intended, but by mutual error one group of employees was misclassified; (2) respondent was engaged in active law enforcement which should have qualified him under Government Code section 20020 for classification under PERS as a "local safety member"; and (3) Government Code sections 20180 and 20165 provide for the correction of respondent's mistaken classification in PERS.

The facts are as follows: On or about December 15, 1964, HACLA contracted with PERS to provide retirement benefits for HACLA employees. ¹ The contract specifically provided coverage for all "local miscellaneous members" of HACLA and specifically excluded from coverage "local safety members."

Respondent was hired by HACLA as a patrolman on July 6, 1971, a position he held until July 25, 1975. ² By a declaration filed and considered by the Board, Boxx stated:

"When I began my employment with the Housing Authority, as noted above, I was advised that I was a member of the Public Employees' Retirement System and that I would have benefits available to me through that system if I were injured on the job. At no time during my employment was I ever advised that I was not a member of the Public Employees' Retirement System, nor was I ever informed that if injured on the job I would not receive disability benefits under that system. Given these facts, I always believed that I would receive whatever disability benefits were due to 'policemen' or 'safety employees' under the Public Employees' Retirement System. (P) The first time that I found out that I was not a 'safety member' of the Public Employees' Retirement System was after I was hurt, when I checked with the Public Employees' Retirement System regarding a disability retirement."

Respondent, pursuant to the aforementioned contract, was, at all times, classified as a "miscellaneous member" of PERS.

Respondent was injured in the scope of his employment in a vehicular accident on June 24, 1974. Application was made for disability retirement as a "miscellaneous member" but was denied because respondent had not worked the minimum five years required to receive its benefits, he being terminated some months short of the five-year employment minimum required by Government Code section 21021: "Any member incapacitated for the performance of duty shall be retired for disability pursuant to this chapter if he is credited with five years of state service, regardless of age."

Respondent sought coverage as a "local safety member" which was denied by the executive officer of PERS because he was not convinced that respondent satisfied the qualifications for "local safety member."

At a subsequent hearing, a hearing officer appointed by PERS rendered a proposed decision, in which he found that respondent's duties did qualify him as a "local safety member." The PERS Board determined that it would decide the matter itself ³ and issued its decision which inter alia found that respondent performed duties which would qualify him as a "local safety member," but that the HACLA-PERS contract excluded such classification and therefore respondent could not be a "local safety member." Respondent thus did not qualify for benefits and disability under PERS. ⁴

Respondent filed a petition for writ of mandate on October 15, 1976, and the court ordered it to issue, requiring appellants to: (1) amend the HACLA-PERS contract to provide coverage for respondent as a "local safety member," (2) reclassify respondent as a "local safety member" from the date he was first employed by HACLA, (3) make any adjustments necessary with PERS to effectuate the above status for respondent under Government Code section 20165, and (4) grant respondent's application for disability retirement as a "local safety member."

HACLA and PERS appeal this judgment.

We consider first whether the trial court and PERS properly classified respondent. Crumpler v. Board of Administration (1973) 32 Cal.App.3d 567, 576, 108 Cal.Rptr. 293, states: "Thus, whether the performance of those duties (animal control officer) 'clearly fall within the scope of active law enforcement service' within the meaning of the statute (Govt.Code, § 20020) becomes one of statutory interpretation (Merrill v. Department of Motor Vehicles, 71 Cal.2d 907, 917, 80 Cal.Rptr. 89, 458 P.2d 33) and we are not bound by either the board's or the trial court's determination which, though expressed as findings of fact, are but legal conclusions."

Government Code section 20020

At the relevant time herein, Government Code section 20019 provided: " 'Local safety member' includes all local policemen, firemen, and county peace officers employed by a contracting agency who have by contract been included within this system."

To be classified as a "local policeman" (local safety member) under Government Code section 20020, one must be an officer or employee of a police department and engaged in active law enforcement. ⁵

The PERS Board and the trial court both found that respondent's duties met the definition of "local policeman" contained in Government Code section 20020, which would have qualified him as a "local safety member" for retirement purposes under Government Code section 20019. Along with this the trial court made a finding of fact that respondent was performing duties of a police officer for HACLA.

Appellants HACLA and PERS challenge this ruling and contend that "HACLA is not an agency or district authorized by statute to maintain a police department, and HACLA patrol officers are not and never have been employees of a local police department Moreover, its patrol officers had no law enforcement powers."

Appellants assert that HACLA patrolmen are not "local policemen," because no statute authorizes the establishment of a HACLA police department. This ignores Penal Code section 830.4, which gave HACLA police officers peace officer status. ⁶ While this statute does not specifically establish a police department within HACLA, we believe it recognizes the de facto existence of one to effectuate their status.

Appellants' assertion also ignores Health and Safety Code sections 34312 and 34278. ⁷ We believe that implicit in these statutes is the authority for HACLA to provide security or police personnel, as required, to operate the housing projects, whether there was in fact a designated police department or not.

HACLA and PERS contend that HACLA's patrolmen had none of the duties and powers of "peace officers" as used in Penal Code section 830, et seq., until Penal Code section 830.4, subdivision (17)-then (18)-was added effective January 1975. We reject this assertion. ⁸ Status under Penal Code section 830.4 as "peace officers" does not deny HACLA patrolmen qualification under the retirement statute of Government Code section 20019 as "local safety members," because the purpose of Penal Code section 830, et seq., is "merely to authorize the named persons to exercise the statutory powers of a peace officer." (Dyas v. Superior Court (1974) 11 Cal.3d 628, 635-636, fn. 3, 114 Cal.Rptr. 114, 522 P.2d 674.) Obviously, police departments could exist and law enforcement powers be exercised by organizations not named in the section.

In Crumpler v. Board of Administration, supra, 32 Cal.App.3d 567, 576, 108 Cal.Rptr. 293, the court dealt with the issue of whether animal control officers for the City of San Bernardino's police department qualified as "local safety members" or "miscellaneous members" under Government Code sections 20019 and 20020. Implicit in its consideration is that labeling the individuals as members of a police department is not as important as whether they are engaged in active law enforcement. ⁹

The key issue is whether respondent's duties were within the scope of active law enforcement under Government Code section 20020. In Crumpler v. Board of Administration, supra, 32 Cal.App.3d 567, 108 Cal.Rptr. 293, the court stated with regard to defining the scope of active law enforcement: "The phrase 'active law enforcement service' appears in various sections of the Public Employees' Retirement Act In an opinion discussing the meaning of the term 'active law enforcement' for the purpose of determining eligibility as a 'safety member' under the County Employees' Retirement Law of 1937 (§§ 31469.3, 31470.3), the Attorney General observed: ' It is not possible to provide any more than a broad definition of what constitutes active law enforcement within the intendment of the County Employees' Retirement Law. We would say generally...