Grimm v. City of San Diego

• Decision Date: 13 June 1979
• Citation: 94 Cal.App.3d 33,156 Cal.Rptr. 240
• Court: California Court of Appeals Court of Appeals
• Parties: Charles GRIMM et al., Plaintiffs and Appellants, v. CITY OF SAN DIEGO et al., Defendants and Respondents. Civ. 16974.

Page 240

156 Cal.Rptr. 240

94 Cal.App.3d 33

Charles GRIMM et al., Plaintiffs and Appellants, v. CITY OF SAN DIEGO et al., Defendants and Respondents.

Civ. 16974.

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

June 13, 1979.

Hearing Denied Aug. 15, 1979.

Lewis & Marenstein and Richard A. Shinee, Los Angeles, for plaintiffs and appellants.

John W. Witt, City Atty., Jack Katz, Chief Deputy City Atty., and Thomas F. Calverley, Deputy City Atty., for defendants and respondents.

WIENER, Associate Justice.

Article IX of the San Diego City Charter provides for the creation of a retirement system (System) for city employees to be managed by a Board of Administration (Board). (San Diego City Charter, art. IX, §§ 141-148.1.) The City Council, pursuant to its power under section 146 of the Charter, has enacted through the years a series of ordinances affecting the System which are now contained in the San Diego City Municipal Code. (San Diego Mun.Code, § 24.0100 et seq.)

The sole issue in this appeal is whether the City was authorized to pass Ordinance No. 12132 (new series) establishing nine members of the thirteen-member Board as a quorum and requiring a majority vote of the entire Board for final action on any Board decision except a vote to adjourn. ¹ We conclude the trial court properly found the ordinance to be a lawful enactment and affirm the order denying plaintiffs, as members of the Board, their requested preliminary injunctive relief.

The cause of this litigation is the direct conflict between the ordinance passed by the City and the quorum requirement established by the Board itself. Rule 10 of the Board provides for a quorum of a majority, or seven, of its members and an affirmative vote of a majority of those present as necessary for the passage of any business. Plaintiffs contend the City Council is not authorized by the Charter to enact an ordinance establishing quorum requirements for the Board and, consequently, their action resulted in an amendment to the City Charter in violation of article XI, section 3 of the California Constitution. ² The resolution of this issue turns on the proper construction of the relevant Charter provisions.

Section 141, the enabling clause of article IX, authorizes the City Council to establish a retirement system by ordinance. Section 144 mandates the creation of a managerial body for the System and enumerates its authority, composition and function. The section provides in pertinent part:

"The system shall be managed by a Board of Administration which is hereby created, consisting of the City Manager, City Auditor and Comptroller, the City Treasurer, three members of the Retirement System to be elected by the active membership, one retired member of the retirement system to be elected by the retired membership, an officer of a local bank, and three other citizens of the City, the latter four to be appointed by the Council . . . .

"The Board of Administration may establish such rules and regulations as it may deem proper . . . .

"The Board of Administration shall be the sole authority and judge under such general ordinances as may be adopted by the Council as to the conditions under which persons may be admitted to benefits of any sort under the retirement system; and shall have exclusive control of the administration and investment of such fund or funds as may be established; . . . ".

Section 146 of the Charter authorizes the City Council:

" . . . to enact any and all ordinances necessary, in addition to the ordinance authorized in Section 141 of this Article, to carry into effect the provisions of this Article; and any and all ordinances so enacted shall have equal force and effect with this Article and shall be construed to be a part hereof as fully as if drawn herein."

San Diego is a charter city. It can make and enforce all ordinances and regulations regarding municipal affairs subject only to the restrictions and limitations imposed by the City Charter, as well as conflicting provisions in the United States and California Constitutions and preemptive state law. Consequently, "(w)ithin its scope, such a charter is to a city what the state Constitution is to the state." (San Francisco Fire Fighters v. City and County of San Francisco (1977) 68 Cal.App.3d 896, 898-899, 137 Cal.Rptr. 607, 608.) "Article XI, section 5, subdivision (b) of the California Constitution (gives) full power to charter cities to provide for the compensation of their employees. It is clear that provisions for pensions relate to compensation and are municipal affairs within the meaning of the Constitution." (City of Downey v. Board of Administration (1975) 47 Cal.App.3d 621, 629, 121 Cal.Rptr. 295, 301.)

A city council's decision regarding a pension system must be upheld unless expressly prohibited by the city charter. (Estes v. City of Richmond (1967) 249 Cal.App.2d 538, 545, 57 Cal.Rptr. 536.)

"The charter operates not as a grant of power, but as an instrument of limitation and restriction on the exercise of power over all municipal affairs which the city is assumed to possess; and the enumeration of powers does not constitute an exclusion or limitation. (Citations.) . . . All rules of statutory construction as applied to charter provisions (citations) are subordinate to this controlling principle. . . . A construction in favor of the exercise of the power and against the existence of any limitation or restriction thereon which is not expressly stated in the charter is clearly indicated. . . . Thus in construing the city's charter a restriction on the exercise of municipal power may not be implied." (City of Grass Valley v. Walkinshaw (1949) 34 Cal.2d 595, 598-599, 212 P.2d 894, 896.)

In approaching our task of interpretation, we are further guided by the following principles of statutory construction specifically relating to charter pension provisions:

"Although the legislative intent, as evidenced by the provisions of the law, and judicial construction thereof, is controlling, pension laws, being remedial in nature, should be liberally construed in favor of the persons intended to be benefited thereby. However, a strained and unreasonable construction should not be adopted, and it should be remembered that the construction should protect both the municipality and the employee." (footnotes omitted.) (McQuillin Municipal Corporations (3d ed. 1973) § 12.143, p. 600.)

Ambiguity and uncertainty in pension legislation requires a construction that will, if reasonably possible, accomplish the purpose of the legislation. (Terry v. City of Berkeley (1953) 41 Cal.2d 698, 701-702, 263 P.2d 833; Newhouser v. Board of Trustees (1971) 15 Cal.App.3d 322, 327, 93 Cal.Rptr. 166.)

The statutory scheme under scrutiny provides for the establishment of a retirement system for compensated city officers and employees by the City Council through ordinance. However, the Charter directs that a Board of Administration shall be created to manage the system. The Board, as the managing entity, is authorized by section 144 to "establish such rules and regulations as it may deem proper . . . ." and to "be the sole authority and judge under such general ordinances as may be adopted by the Council as to the conditions under which persons may be admitted to benefits of any sort under the retirement system . . . ." In other words, the Board, vested with the management of the retirement system, is authorized by the Charter to make such rules and regulations as it deems proper for the administration of the system. (See also San Diego Mun.Code, § 24.0901.) The Charter further provides that the Board shall be the sole authority and judge, under such general ordinances as may be adopted by the Council, to determine when members may be admitted to and continue to receive benefits of any sort under the System. (See Lyons v. Hoover (1953) 41 Cal.2d 145, 148, 258 P.2d 4; San Diego Mun.Code, § 24.0901; 38 Cal.Jur.2d, Pensions, § 32, p. 353.) Thus, while it is the function of the Board to act upon individual cases, the City Council has been conferred the authority to control the Board's activities by "general ordinances." (See Lyons v. Hoover, supra, at p. 148, 258 P.2d 4; 38 Cal.Jur.2d, Op. cit. supra, at p. 353.)

This latter determination of the City Council's role is supported by the presence of section 146 within the Charter empowering the Council "to enact any and all ordinances necessary, in addition to the ordinance authorized in section 141 of this Article, to carry into effect the provisions of this Article . . . ." In Montgomery v. Board of Admin., etc. (1939) 34 Cal.App.2d 514, 521, 93 P.2d 1046, 1050, this court held section 146 to be constitutional, explaining that "the section gives the city council power to pass ordinances to administer and carry out the terms of the charter. It gives no authority (however) to pass any enactment that conflicts with the charter provisions."

Although the quorum requirement in controversy could be easily branded as a mere procedural housekeeping provision and hence an administrative rule which could be enacted only by the Board under its...