Gourley v. City of Napa

• Decision Date: 18 March 1975
• Court: California Court of Appeals Court of Appeals
• Parties: Osmer B. GOURLEY, Plaintiff and Appellant, v. CITY OF NAPA, Defendant and Respondent. Civ. 33629.

Page 290

121 Cal.Rptr. 290

48 Cal.App.3d 156

Osmer B. GOURLEY, Plaintiff and Appellant, v. CITY OF NAPA, Defendant and Respondent.

Civ. 33629.

Court of Appeal, First District, Division 2, California.

March 18, 1975.

William T. Hays by Seth J. Kelsey, Newport Beach, for plaintiff and appellant.

Frank L. Dunlap, City Atty., Napa, for defendant and respondent.

TAYLOR, Presiding Justice.

On this appeal by plaintiff, O. B. Gourley, from that portion of a judgment denying his petition for a writ of mandate, the only question prosented is whether the respondent, City of Napa, violated Government Code section 21025.5 when it refused to pay Gourley full salary pursuant to Labor Code section 4850 for the 12-month period that followed that date of his industrial injury on December 19, 1971. For the reasons set forth below, we have concluded that the full salary benefits of Labor Code section 4850 may be terminated by the employer's initiated retirement pursuant to Government Code sections 21023, subdivision (c), and 21023.5; therefore, the portion of the judgment that is the subject of this appeal must be affirmed.

The appeal is on an agreed statement that sets forth the following pertinent facts: On December 31, 1948, Gourley was hired by the city as a full-time fireman, and continued to work until December 19, 1971, when he suffered a job-related total disability.

The city contracts with the Public Employees Retirement System (PERS) to provide retirement benefits for its employees. Upon the occurrence of his disability, Gourley was placed on leave of absence without loss of salary pursuant to Labor Code section 4850. Pursuant to this statute, the temporary disability payments that would otherwise have been payable to Gourley by the city's workmen's compensation insurer were paid to the city.

On June 30, 1972, the city's workmen's compensation insurance carrier notified Gourley and the city that Gourley's condition had become permanent and stationary as of March 27, 1972. Upon receipt of this notification, the city terminated payments to Gourley under Labor Code section 4850 and applied to the PERS for disability retirement of Gourley to be effective July 1, 1972. Copies of the documents submitted to PERS as application for his retirement were furnished to him.

On July 5, 1972, the city made a payment to Gourley consisting of all salary payments, all vacation payments, holiday payments, and all other allowances due him through June 30, 1972. Gourley accepted this payment.

On July 11, 1972, Gourley's attorney wrote to PERS stating that Gourley did not consent to the retirement date sought by the city. On the same date, Gourley's attorney wrote to the city enclosing a copy of his letter to PERS and demanded that the city continue injury leave benefits pursuant to Labor Code section 4850 for a total of one full year.

On August 15, 1972, a letter was sent to Gourley by PERS stating that he would be 'retired forthwith' provided he had received all sick leave with compensation, compensating time off for overtime or other leave of absence with compensation which he was 'entitled to receive.'

On August 24, 1972, Gourley wrote to the chief of the city fire department requesting that he be put on sick leave effective July 1, 1972. As of June 30, 1972, Gourley had accumulated 60 3/4 shifts of sick leave according to the city's accumulation computation procedures. He concedes that this is the correct amount of accumulated sick leave due him as of June 30, 1972.

On August 30, 1972, Gourley requested that his case be placed on the September agenda of the city's civil service commission. On September 19, 1972, the city civil service commission met and Gourley's attorney presented the claim for compensation for accumulated sick leave. A representative of the city attorney's office was not present at that meeting, as in cases of this sort, the civil service commission is strictly an advisory body to the city council. The civil service commission made a negative recommendation.

On September 25, 1972, at the regularly scheduled meeting of the city council, Gourley's attorney again presented his request to be compensated for accumulated sick leave. The city council voted to extend Gourley's leave of absence without loss of slary pursuant to Labor Code section 4850 through August 15, 1972, on the basis of the letter of August 15, 1972, from PERS to Gourley that it interpreted to indicate that Gourley's retirement date would be August 15, 1972. The city council also voted not to pay him for accumulated sick leave, on the basis that the city's procedure upon retirement for recompensing accumulated sick leave of a retired employee is to pay an amount equal to one month's health plan premium for each day of accumulated sick leave.

On October 3, 1972, the city wrote to PERS that Gourley had been paid for all overtime and compensating time off and that sick leave reimbursement had been commenced pursuant to the applicable rules of the civil service commission.

On October 5, 1972, the city sent payment to Gourley for leave of absence with compensation pursuant to Labor Code section 4850 for the period of July 1, 1972, through August 15, 1972. Gourley refused to accept this payment on the basis that it was inadequate. The above mentioned check sent to Gourley by the city on October 5, 1972, for leave of absence without loss of salary pursuant to Labor Code section 4850 was computed on the basis of Gourley's base pay and did not include an educational and training pay incentive figure. The city has established an educational and training pay incentive program for police and fire department personnel by a resolution of the city council. The city concedes that had Gourley been a working employee, he would have been eligible to avail himself of this program, as prior to June 30, 1972, he had acquired the education necessary to qualify him for a 10 percent incentive pay increase pursuant to that program for the 1972--73 fiscal year; Gourley made application for incentive pay on April 14, 1972.

Gourley argues that his retirement has not become effective and cannot without his consent become effective prior to receipt of the year's leave of absence without loss of salary under Labor Code section 4850, and receipt of accured sick leave.

Labor Code section 4850 provides, in pertinent part: 'Whenever any . . . city fireman . . . who is a member of the Public Employees' Retirement System . . . is disabled, whether temporarily or permanently, by injury or illness arising out of and in the course of his duties, he shall become entitled, regardless of his period of service with the city . . . to leave of absence while so disabled without loss of salary, in lieu of temporary disability payments, if any, which would be payable under this chapter, for the period of such disability but not exceeding one year, Or until such earlier date as he is retired on permanent disability pension.' (Emphasis added.)

A careful reading of Labor Code section 4850 indicates that an employee does not have an absolute right to leave of absence for one year. If he 'is retired on permanent disability pension' prior to the end of the one-year period, his right to his leave of absence with full salary terminates.

Eason v. City of Riverside, 233 Cal.App.2d 190, 43 Cal.Rptr. 408, clearly so indicates. In that case, a police officer employed by the city was injured while acting within the course and scope of his employment. He was retired on permanent disability pension at the request of the chief of police. He had received his full salary from the date of his injury until the date of his retirement. Nonetheless, he sought to recover an additional 19 5/7 weeks of leave of absence salary to constitute a total of one year's leave of absence. He mistakenly believed that he had an unfettered right to a one-year leave of absence at full salary under section 4850 of the Labor Code. The court, at pages 193 and 194, 43 Cal.Rptr. at page 409, examined the language of the statute, 'not exceeding one year, or until such earlier date as he is retired on permanent disability pension,' and noted that the two phrases are joined by the conjunction 'or.' The court then explained that it was mindful of the policy to liberally construe provisions of the Labor Code, but held that '. . . to hold the word 'or' joins independent provisions of section 4850, and not alternative provisions, goes beyond a liberal construction; it would pervert the plain language of the statute.' The court continued, 'We conclude that when appellant was retired at an 'earlier date' his right to leave of absence with full pay terminated.'

If the Legislature had intended to give a disabled employee an absolute right to leave of absence with pay for one year, in all probability it would not have included the words 'or until such earlier date as he is retired on permanent disability pension' in Labor Code section 4850. We also note that Labor Code section 4800, pertaining to members of the California Highway Patrol, the Bureau of Narcotic Enforcement and the Bureau of Criminal Identification, omits the above quoted phrase. Thus, as to those individuals, the one-year leave of absence with pay is an absolute right.

In like manner, if the Legislature had intended that the employee's retirement (and subsequent termination of his leave of absence under section 4850) was to be at his option, it would not have included the wording 'is retired' in the subject statute. This phrase clearly indicates that the time for retirement for disability reasons is not a matter which the employee controls. If this were the intent of the Legislature, it could have expressed that intent by substituting the...