Glaeser v. City of Berkeley

• Decision Date: 21 February 1957
• Docket Number: Nos. 16927-16929,s. 16927-16929
• Citation: 148 Cal.App.2d 614,307 P.2d 61
• Court: California Court of Appeals Court of Appeals
• Parties: Frank J. GLAESER, Colin F. Grant, E. O. Gray, Albert F. Hafey, Herbert C. Hansen, Emmett L. Lampson, Grover C. Rosentreter, Clayton H. Swanson, Harold W. Wold, and Charles Y. Woods, Plaintiffs and Appellants, v. CITY OF BERKELEY, a municipal corporation, Fire Pension Board, Laurence L. Cross, John D. Phillips, Fred A. Bird, James Howard Le Strange, John Holstrom, Mrs. Lee Breckinridge Thomas, and Weldon L. Richards, Defendants and Respondents. Joseph R. MANSFIELD, Eugene W. Roark, and William Truelsen, Plaintiffs and Appellants, v. CITY OF BERKELEY, a municipal corporation, Fire Pension Board, Laurence L. Cross, John D. Phillips, Fred A. Bird, James Howard Le Strange, John Holstrom, Mrs. Lee Breckinridge Thomas, and Weldon L. Richards, Defendants and Respondents. Britton SICKLER, Plaintiff and Appellant, v. CITY OF BERKELEY, a municipal corporation, Police Pension Board, Laurence L. Cross, John D. Phillips, Fred A. Bird, James Howard Le Strange, John Holstrom, Mrs. Lee Breckinridge Thomas, and Weldon L. Richards, Defendants and Respondents.

Page 61

307 P.2d 61

148 Cal.App.2d 614

Frank J. GLAESER, Colin F. Grant, E. O. Gray, Albert F. Hafey, Herbert C. Hansen, Emmett L. Lampson, Grover C. Rosentreter, Clayton H. Swanson, Harold W. Wold, and Charles Y. Woods, Plaintiffs and Appellants, v. CITY OF BERKELEY, a municipal corporation, Fire Pension Board, Laurence L. Cross, John D. Phillips, Fred A. Bird, James Howard Le Strange, John Holstrom, Mrs. Lee Breckinridge Thomas, and Weldon L. Richards, Defendants and Respondents.

Joseph R. MANSFIELD, Eugene W. Roark, and William Truelsen, Plaintiffs and Appellants, v. CITY OF BERKELEY, a municipal corporation, Fire Pension Board, Laurence L. Cross, John D. Phillips, Fred A. Bird, James Howard Le Strange, John Holstrom, Mrs. Lee Breckinridge Thomas, and Weldon L. Richards, Defendants and Respondents.

Britton SICKLER, Plaintiff and Appellant, v. CITY OF BERKELEY, a municipal corporation, Police Pension Board, Laurence L. Cross, John D. Phillips, Fred A. Bird, James Howard Le Strange, John Holstrom, Mrs. Lee Breckinridge Thomas, and Weldon L. Richards, Defendants and Respondents.

Nos. 16927-16929.

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

Feb. 21, 1957.

Cornish & Cornish, Francis T. Cornish, Howard W. Wayne, Berkeley, for appellants.

Fred C. Hutchinson, City Atty., Robert T. Anderson, Asst. City Atty., Berkeley, for respondents.

FRED B. WOOD, Justice.

These three cases (consolidated for trial and appeal) involve the effect upon the plaintiffs of certain amendments to the Berkeley fire and police pension ordinances. Plaintiffs (13 firemen and one policeman) were in the employ of the city at the time of these amendments, June 16, 1944. They have since retired.

These amendments changed the rate of retirement pay from one that was geared to the going rate of pay for active members of the force (fluctuating upward with increases in salary rates but not downward with decreases in those rates) ¹ to a fixed retirement pay rate geared to the average salary received by the retired employee during the three years immediately preceding the date of his retirement. ²

These amendments could not and did not affect persons who had retired prior to their effective date. Terry v. City of Berkeley, 41 Cal.2d 698, 263 P.2d 833, as to policemen; Eichelberger v. City of Berkeley, 46 Cal.2d 182, 293 P.2d 1, as to firemen.

Did these amendments affect policemen and firemen who were then members of the force and not yet retired?

The answer is furnished by a decision of our Supreme Court rendered in September, 1955, upwards of ten months after the rendition of judgment in the instant cases. It held that a similar amendment of the charter of the City of Long Beach could and did operate only prospectively, not retrospectively, as to certain firemen and policemen who were in the employ of the city at the time of the amendment. Allen v. City of Long Beach, 45 Cal.2d 128, 287 P.2d 765. These were city employees who, according to the charter prior to the amendment, would be entitled upon retirement to receive a fluctuating allowance equal to one-half of the going rate of pay attached to the position held prior to retirement. The amendment, if operative as to them, would change the retirement allowance to a fixed rate one-half the average salary earned by the employee during the five years preceding his retirement.

This, the Supreme Court observed, would if effective operate as a subtantial decrease without offering any commensurate advantages 45 Cal.2d at pages 131 and 132, 287 P.2d 765. That, coupled with the absence of any claim that the amendment was necessary to preserve or protect the pension program applicable to the employees who would be adversely affected, and the lack of any indication that the city would have difficulty in meeting its obligations without making the amendment applicable to them, 45 Cal.2d at page 133, 287 P.2d 765, would result in an unreasonable and, therefore, ineffective modification, as to such employees.

The court expressed the governing principles in these words: 'An employee's vested contractual pension rights may be modified prior to retirement for the purpose of keeping a pension system flexible to permit adjustments in accord with changing conditions and at the same time maintain the integrity of the system. [Citations.] Such modifications must be reasonable, and it is for the courts to determine upon the facts of each case what constitutes a permissible change. To be sustained as reasonable, alterations of employees' pension rights must bear some material relation to the theory of a pension system and its successful operation, and changes in a pension plan which result in disadvantage to employees should be accompanied by comparable new advantages.' 45 Cal.2d at page 131, 287 P.2d at page 767.

We see no basis for distinguishing the instant case from the Allen case. The disadvantages of the proposed change are potentially greater here than there. Here, prior to the challenged amendment, the retirement allowance would go up but not down with changes in the salary rate, whereas in Long Beach they followed salary changes down as well as up. Indeed, in the Allen case the Supreme Court referred to the Terry case as one that involved an amendment (the Berkeley 1944 amendment here involved) similar to the Long Beach amendment and as holding that 'the change from a fluctuating to a fixed pension was detrimental to pensioners.' at page 132 of 45 Cal.2d, at page 768 of 287 P.2d.

Also, we observe no indication in the pleadings or in the findings that the 1944 amendments were necessary to preserve or protect the pension program applicable to persons in office at the time and no indication that Berkeley would have difficulty in meeting its obligations to firemen and policemen in its employ at the time of the amendments.

The defendants seek to distinguish the Allen case upon a number of grounds, none of which seems logically sound to us.

The fact that the Long Beach pension amendment included two features (an increase in the rate of employee contribution and a requirement that the employee contribute for the period of any military leave) in addition to the change in the retirement allowance rate, does not distinguish the Allen case from the instant case, as we read the Supreme Court's opinion. The court viewed each of those three changes separately from the other two and treated each as an unreasonable modification. ³

Nor do we find a significant distinguishing feature in the fact that in 1938 a retired Berkeley fireman enjoyed a fixed allowance which in 1939 was changed to a fluctuating allowance so that the 1944 amendment was merely a return to the 1938 status. As we read the Supreme Court's decision the reasonableness of a modifying amendment is to be tested by its effect upon the existing law, not by comparing the amendment with the law as it...