Lanquist v. Ventura Cnty. Employees' Ret. Ass'n, 2d Civil No.B251179

• Court: California Court of Appeals
• Writing for the Court: GILBERT, P.J.
• Citation: 185 Cal.Rptr.3d 166,235 Cal.App.4th 186
• Parties: Timothy S. LANQUIST et al., Plaintiffs and Appellants, v. VENTURA COUNTY EMPLOYEES' RETIREMENT ASSOCIATION, Defendant and Respondent; County of Ventura, Real Party in Interest and Respondent.
• Docket Number: 2d Civil No.B251179
• Decision Date: 16 March 2015

235 Cal.App.4th 186
185 Cal.Rptr.3d 166

Timothy S. LANQUIST et al., Plaintiffs and Appellants
v.
VENTURA COUNTY EMPLOYEES' RETIREMENT ASSOCIATION, Defendant and Respondent;
County of Ventura, Real Party in Interest and Respondent.

2d Civil No.B251179

Court of Appeal, Second District, Division 6, California.

Filed March 16, 2015
Rehearing Denied April 9, 2015

Timothy S. Lanquist, in pro. per., for Plaintiff and Appellant.

Thomas W. Temple, in pro. per., for Plaintiff and Appellant.

Leroy Smith, County Counsel, Lori A. Nemiroff, Assistant County Counsel, for Defendant and Respondent Ventura County Employees' Retirement Association.

Atkinson, Andelson, Loya, Ruud & Romo, Edward B. Reitkopp for Real Party in Interest and Respondent County of Ventura.

Opinion

GILBERT, P.J.

235 Cal.App.4th 189

Ventura County Employees' Retirement Association (VCERA) permits employees to purchase retirement service credit for time spent in military service. It excludes time spent as a midshipman at the United States Naval Academy (Academy). Our interpretation of a Ventura County Board of Supervisors resolution, adopting the County Employees Retirement Law of 1937 (CERL) ( Gov. Code, § 31450 et seq. ), leads us to the opposite conclusion. “Military service” includes service as a midshipman. (Gov. Code, § 31450 et seq. )¹

Ventura County employees Timothy S. Lanquist and Thomas W. Temple appeal a judgment denying their petition for a writ of mandamus to compel VCERA to grant their requests to purchase retirement service credit for military service as midshipmen at the Academy. We reverse the judgment and direct the trial court to issue a writ of mandamus requiring VCERA to grant their requests.

FACTUAL AND PROCEDURAL BACKGROUND

Lanquist and Temple served as midshipmen at the Academy for about four years before they became commissioned naval officers. Temple was enlisted before he attended the Academy; Lanquist was not. Both men later became employees of Ventura County. Lanquist is a deputy sheriff, and Temple is an assistant county counsel. They are members of VCERA.

Lanquist and Temple applied to VCERA to purchase retirement service credit for their military service. They supported

185 Cal.Rptr.3d 168

their requests with copies of their “DD214” forms. The Department of Defense uses DD214 forms to record and report transfer or separation of military personnel from a period of active duty. (32 C.F.R. § 45.2.) Lanquist's and Temple's forms did not include their Academy time in the box labeled “Record of Service.” Temple's form did include a “Remark” that reported his Academy time.

235 Cal.App.4th 190

Lanquist and Temple supplemented their DD214 forms with letters from the Department of the Navy certifying that their service of four years as midshipmen at the Academy was “continuous active duty.” The letters, signed by the Academy's registrar, state that Lanquist and Temple “attended the United States Naval Academy on continuous active duty in the U.S. Navy.” While attending, they were compensated by “pay and allowances as were authorized for an active duty member of the Navy,” and were subject to the Uniform Code of Military Justice.² The letters also refer to two provisions of the United States Code that define “active duty” to include “attendance, while in the active military service, at a school designated as a service school.”³

VCERA denied Lanquist's and Temple's requests to purchase retirement service credit for midshipmen service at the Academy. It granted, however, their requests to purchase retirement service credit for all other military service. This included 40 weeks Temple spent at the Naval Academy Preparatory School before he attended the Academy and two years Lanquist spent afterward at the Naval Postgraduate School earning a master's degree.

VCERA explained that it did not consider service as a midshipman at the Academy to be creditable “active duty.” It based its decision on a 1979 legal opinion letter prepared by an assistant county counsel. The 1979 letter “appl [ied] rules of statutory construction” to conclude that “military academy schooling does not qualify as creditable public service; to qualify as creditable public service, military service must be active military duty in the armed forces of the United States.” Counsel reasoned that the “ordinary meaning” of “military service” in the CERL is “active service,” based on several opinions of the California Attorney General that considered the question whether creditable service for military service is active duty. Those opinions did not discuss academy time or federal law defining the term “military service” or “active duty.”

In a subsequent letter to Lanquist in 2007, VCERA “confirm[ed] [its] prior conclusion that such schooling [at the Academy] does not constitute ‘active duty’ military service” and he is therefore ineligible for retirement service credit. VCERA relied on federal authorities to conclude that training at a military academy is only “active duty” if it takes place after an officer is commissioned. It cited section 971 of title 10 of the United States Code for

235 Cal.App.4th 191

the proposition that general military law “does not consider academy schooling as active duty ‘service’ when computing length of service for any purpose, including eligibility for retirement service credit.”⁴

Lanquist and Temple appealed VCERA's denial to the VCERA retirement board. At the hearing, Lanquist and Temple presented evidence that as midshipmen

185 Cal.Rptr.3d 169

at the Academy they were compensated as active duty servicemen and experienced hardships and dangers on surface cruises with active naval vessels similar to those experienced by commissioned officers.

The retirement board upheld VCERA's denial, on a two-to-six vote, with one abstention. Two members stated their belief that they “have to comply with [County of Ventura's] interpretation of the resolution” in the 1979 opinion letter. One member asked staff to research the issue whether the retirement board had authority to promulgate a rule allowing credit for Academy time.

Lanquist and Temple filed a petition for writ of mandamus and complaint for declaratory relief in the trial court. In addition to the administrative record, they requested judicial notice of various legislative, administrative, and other official acts of the United States government pertaining to cadets and midshipmen.

VCERA submitted a declaration from VCERA's retirement benefits manager. The manager stated that VCERA allows military service credit only for that “period reported in the member's [DD214] Record of Service,” and has followed this policy for over 30 years. It does so in reliance on the 1979 opinion letter, and “later opinions [that] confirm and expand upon the 1979 opinion” to explain that “military academy service” is ineligible because the “DD Form 214's do not identify ... academy attendance ... as active duty service,” and because “such service is not identified by the Department of the Navy as active duty service that is creditable for retirement pay.”

The VCERA retirement benefits manager declared that written procedures for processing “buy back” requests require certification for “active military service” with a DD214 form. VCERA uses a “Public Service Worksheet” to calculate the cost of service credit purchases. That worksheet requires the retirement specialist to record the “Dates of Service” and to indicate the source of proof as “DD214” or “other.” The manager declared that VCERA does not accept evidence of compensation as a cadet or midshipman at the Academy as proof of prior military service.

235 Cal.App.4th 192

Lanquist and Temple submitted a declaration of Clifford L. Williams, Jr., a Ventura County district attorney investigator, who stated that VCERA denied his request to purchase retirement service credit as a cadet at the United States Air Force Academy in 2011, although that period of service was listed in the “Record of Service” block of his DD214 form. Williams's form is an older version than the forms issued to Lanquist and Temple. It includes a remark: “Ref Item # 18a is cadet time at USAF Academy and not creditable for basic pay purposes in a commissioned status.”

The trial court denied the petition. It determined that VCERA's policy of denying retirement service credit for service at the Academy is “appropriate” in view of state and federal authorities interpreting the terms “public service,” and “active duty.” It gave “some consideration” to VCERA's interpretation, in deference to VCERA's technical expertise with regard to administration of retirement systems.

DISCUSSION

Standard of Review-Agency Interpretation of Statute

Our review of the trial court's decision is de novo. (Prentice v. Board of Administration (2007) 157 Cal.App.4th 983, 989, 69 Cal.Rptr.3d 167.) Our review of an agency's quasi-legislative administrative decision is limited to a determination

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