Haas v. Meisner

• Decision Date: 07 November 2002
• Docket Number: No. A097704.,A097704.
• Citation: 103 Cal.App.4th 580,126 Cal.Rptr.2d 843
• Court: California Court of Appeals Court of Appeals
• Parties: Richard S. HAAS, Plaintiff and Appellant, v. Roy MEISNER as Acting Chief of Police, etc., et al., Defendants and Respondents.

126 Cal.Rptr.2d 843

103 Cal.App.4th 580

Richard S. HAAS, Plaintiff and Appellant, v. Roy MEISNER as Acting Chief of Police, etc., et al., Defendants and Respondents.

No. A097704.

Court of Appeal, First District, Division 2.

November 7, 2002.

Lasky, Haas & Cohler, Charles B. Cohler, George G. Gigounas, for Appellant.

Wiley Price & Radulovich, LLP, Joseph E. Wiley, Alameda, for Respondents.

LAMBDEN, J.

Richard S. Haas (Haas) appeals from the trial court's denial of his petition for writ of mandate. Haas petitioned for an order requiring the City of Berkeley (Berkeley) and Acting Chief of Police Roy Meisner (Meisner) (collectively respondents) to renew an endorsement permitting Haas to carry a concealed weapon. He contends that under Penal Code section 12027, subdivision (a)(1)(A),¹ he is entitled to the endorsement. We conclude that he does not satisfy the requirement of being an "honorably retired" peace officer under section 12027, subdivision (a)(1)(A), because he never qualified for and accepted a service or disability retirement. We therefore affirm.

BACKGROUND

Haas served as a reserve officer for the Berkeley Police Department (police department) from 1969 until 1996. During this period, Haas obtained the training set forth in section 832.6 and carried a firearm. According to respondents, reserve officers are civilian individuals who assist the police department on a part-time basis. While regular police officers work 40 hours per week in addition to overtime, reserve officers work much less. During 1995, Haas's reserve hours totaled 138.95, or an average of 11 hours per month. In 1996, he averaged nine hours per month.

Until the mid-1990s, reserve officers served on a volunteer basis and only received pay for time spent helping the police department at special events such as football games or street races. In 1995, under the Fair Labor Standards Act (29 U.S.C. § 201 et seq.), Berkeley began paying the reserve officers minimum wage for all of the hours worked.

In addition, the Omnibus Budget Reconciliation Act of 1990 (OBRA) (Pub.L. No. 101-508 (Nov. 5, 1990) 104 Stat. 1388-469²) required that, as of January 1, 1992, cities enroll all employees, including employees such as Haas, in social security or an equivalent plan if they were not members of the cities' retirement plans. OBRA demanded that public employers either: (a) enroll employees in social security and deduct appropriate social security taxes from the employees' paychecks; or (b) enroll them in a substitute social security program. In response, Berkeley offered the Public Agency Retirement System (PARS), a social security alternate plan, to its hourly employees such as police department reserve officers.

Berkeley enrolled Haas in its PARS plan in October 1993. Both the employer and Haas each contributed 3.75 percent every pay period to the PARS account. Haas immediately vested in PARS since it has no service requirement. Pursuant to the police department's General Order 33 (Order R-33), Haas retired on August 31, 1996. According to the Berkeley City Attorney, Order R-33 provides that reserve officers are eligible for retirement:

"(a) upon reaching age 50 and having 10 years of continuous service, (b) upon having 20 years of continuous service, (c) in the event of a job-related medical disability, or (d) in the event of a non-job-related medical disability, but with 10 years of continuous service." Haas alleges that when he retired, section 500.80 of the police department's Reserve Manual provided that "[r]etired officers shall normally be given a retirement badge and identification card at the time of retirement." At retirement, Haas's PARS balance was $331.50 plus any interest earned. PARS transferred his account balance to his individual retirement account (IRA).

Relying upon a November 1995 Berkeley City Attorney legal opinion, the police department issued Haas an identification card containing an endorsement permitting him to carry a concealed weapon (CCW endorsement). The opinion concluded: "The Chief has the discretion to deny or revoke a CCW endorsement for an honorably retired [police department] reserve officer who has obtained the training set forth in Penal Code § 832.6 and carried a firearm as a reserve, only if the Chief believes that there is good cause to deny the endorsement. Otherwise, the endorsement must be given to the retired officer. Retired reserves who have not met the training requirements of Section 832.6 or who did not carry a firearm as a reserve are not entitled to the CCW endorsement."

In September 1997, the Berkeley City Attorney issued another legal opinion. This opinion stated that it was responding to the request of former Chief of Police D.E. Butler (Butler) that it reexamine its 1995 legal opinion. The 1997 opinion stated that it "overrules and supersedes the entire legal opinion dated November 8 1995." Its new conclusion was as follows: "Under Penal Code section 12027(a), honorably retired [police department] reserve officers are not entitled to a CCW endorsement on their ID cards. Therefore, the Chief should not allow CCW endorsements on the ID card of any retired [police department] reserve officers. [¶] However, as with any other resident of Alameda County, under Penal Code section 12050, the Chief has the discretion to issue a retired reserve officer who resides within Alameda County a license to carry a concealed weapon, if the reserve officer meets the requirements for obtaining the license, such as showing good cause for needing one."

In 2001, Haas requested from the police department a renewal of his CCW endorsement, which was expiring in September 2001. Based on the 1997 city attorney opinion, Butler notified Haas that the police department did not have the authority to issue him a CCW endorsement.

Haas filed a petition for writ of mandate requesting the court to order respondents to renew his CCW endorsement, which the trial court denied. The trial court also declined his request for a statement of decision, stating no disputed facts existed and the matter "turns solely on a question of law." Haas filed a timely notice of appeal.

DISCUSSION

Haas contends that Butler was required under section 12027, subdivision (a)(1)(A), to renew his CCW endorsement. Respondents assert that Haas does not meet the requirements of being "honorably retired" under this provision, and he must therefore apply for permission to carry a concealed weapon under a different statute, section 12050.

Sections 12025 and 12031, subdivision (a), prohibit individuals from carrying concealed weapons. Section 12027, which exempts certain active and retired peace officers from this statutory prohibition, provides the following: "Section 12025 does not apply to, or affect, any of the following: [¶] (a)(1)(A) Any peace officer, listed in Section 830.1 or 830.2, or subdivision (a) of Section 830.33, whether active or honorably retired, other duly appointed peace officers, honorably retired peace officers listed in subdivision (c) of Section 830.5, other honorably retired peace officers who during the course and scope of their employment as peace officers were authorized to, and did, carry firearms, full-time paid peace officers of other states and the federal government who are carrying out official duties while in California, or any person summoned by any of these officers to assist in making arrests or preserving the peace while he or she is actually engaged in assisting that officer. Any peace officer described in this paragraph who has been honorably retired shall be issued an identification certificate by the law enforcement agency from which the officer has retired.... As used in this section and Section 12031, the term `honorably retired' includes all peace officers who have qualified for, and have accepted, a service or disability retirement. For purposes of this section and Section 12031, the term `honorably retired' does not include an officer who has agreed to a service retirement in lieu of termination."

In determining whether a retired Berkeley reserve police officer meets the requirements of section 12027, we first consider the qualification of acting as a peace officer authorized to carry firearms during the course and scope of employment. Section 830.6, subdivision (a), which governs reserve police officers, provides: "(1) Whenever any qualified person is deputized or appointed by the proper authority as a reserve or auxiliary sheriff or city police officer ... and is assigned specific police functions by that authority, the person is a peace officer, if the person qualifies as set forth in Section 832.6. The authority of a person designated as a peace officer pursuant to this paragraph extends only for the duration of the person's specific assignment.... [¶] (2) ...

The authority of a person designated as a peace officer pursuant to this paragraph includes the full powers and duties of a peace officer as provided by Section 830.1...." There is no dispute that Haas obtained the training set forth in section 832.6 and was authorized to and did carry firearms while an active reserve officer. Accordingly, he fulfilled the qualification of being a peace officer who carried a firearm.

The remaining question concerns his satisfaction of the requirement that he was "honorably retired" by qualifying for and accepting "a service or disability retirement." (§ 12027, subd. (a)(1)(A).) There is also no dispute that Haas retired pursuant to Order R-33 and that he satisfied the "honorable" requirement. The parties, however, diverge in their interpretation of qualifying for and accepting a service retirement.³ Haas maintains that he retired pursuant to Order R-33 and he accepted the PARS program. Consequently, he argues that he satisfied the service retirement mandate of the statute. Respondents argue that PARS is not a retirement program based on years of service and age at retirement and therefore Haas...