Morgan v. City of L.A. Bd Of Pension Comm'rs

• Decision Date: 20 December 2000
• Citation: 102 Cal.Rptr.2d 468,85 Cal.App.4th 836
• Court: California Court of Appeals Court of Appeals
• Parties: (Cal.App. 2 Dist. 2000) GARY MORGAN et al.,Plaintiffs and Appellants, v. CITY OF LOS ANGELES BOARD OF PENSION COMMISSIONERS,Defendant and Respondent;CITY OF LOS ANGELES, Real Party in Interest and Respondent. B141831 Filed

102 Cal.Rptr.2d 468 (Cal.App. 2 Dist. 2000)

GARY MORGAN et al.,Plaintiffs and Appellants, v. CITY OF LOS ANGELES BOARD OF PENSION COMMISSIONERS,Defendant and Respondent;CITY OF LOS ANGELES, Real Party in Interest and Respondent.

B141831

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT

DIVISION TWO

Filed 12/20/00

APPEAL from judgment denying petition for writ of mandate. David P. Yaffee, Judge. Judgment affirmed.

(Super. Ct. No. BS 055810)

Silver, Hadden, & Silver, Stephen H. Silver, for Plaintiffs and Appellants.

James K. Hahn, City Attorney, Donna Weisz Jones, Assistant City Attorney, Mary Jo Curwen, Deputy City Attorney, for Defendant and Respondent and for Real Party in Interest and Respondent.

CERTIFIED FOR PUBLICATION

J. TODD

Appellants, current and retired Los Angeles Police Department officers, seek inclusion of certain Uniform Field Assignment Incentive pay (Incentive pay) in the base upon which their pensions are calculated. This Incentive pay was created by Memoranda of Understanding negotiated between the Police Protective League (representing appellants) and the City of Los Angeles, and expressly provides that it is not to be pension-based. Appellants contend that the Incentive pay is "Special Pay" and/or "Assignment Pay" as defined in the Los Angeles City Charter, and consequently under the Charter is required to be pension-based. We find that the Uniform Field Incentive Assignment pay is neither "Special Pay" nor "Assignment Pay" as defined by the City Charter, and affirm the trial court's denial of appellants' petition for writ of mandate.

FACTUAL AND PROCEDURAL HISTORY

The Pension Plans

The New Pension System

Appellants Morgan and Preciado are members of the "New Pension System," which is set forth in Article XVIII of the City Charter,¹ sections 190.01 et seq. The New Pension System was established in 1967, and includes police officers hired between its enactment and 1980, when a new plan was adopted. System members are entitled to a pension-based on the "Normal Pension Base" as defined in City Charter Section 190.02, subdivision (s), as "the sum of: (1) his monthly salary; (2) any length of service pay which he had received immediately preceding the date of his retirement or death or upon the last day he had performed duties as a Department Member; (3) any special pay which he had received immediately preceding the date of his retirement or death . . . and (4) any hazard pay . . . ."

Charter section 190.02, subdivision (r-2), provides that "Assignment Pay," as defined in the subdivision shall be included in the pension base to the same extent and upon the same conditions as is "Hazard Pay."

Safety Members' Pension Plan

Appellant Jones is a member of the "Safety Members Pension Plan" (the Plan), which appears in Article XXXV, sections 520 et seq. of the Charter. The Plan was created in 1980 and applies to all police officers hired after that date. Plan members are entitled to a pension based upon "Final Average Salary" (the "pension base") as defined in Charter section 521, subdivision (n) to be: "an amount equivalent to a monthly average of salary actually received during any twelve (12) consecutive months of service as a Plan Member as designated by the Plan Member. . . ." Paragraph 4 of this subdivision states: "Included in the calculation of Final Average Salary shall be Length of Service Pay, Special Pay Assignment Pay, and Hazard Pay actually received during the twelve (12) consecutive months used to determine Final Average Salary. . . ."

The Pension Board

The City of Los Angeles Board of Pension Commissioners is vested with the responsibility and authority to administer the City of Los Angeles Safety Members Pension Plan (Charter, article XXXV, 520), including the predecessor New Pension System. (Charter, 524.)

Memorandum of Understanding

Appellants' wages, hours, and other conditions and terms of employment are determined as a result of negotiations memorialized in a MOU between their collective bargaining agent and the City. (Gov. Code, 3504.) A member of an employee bargaining unit is bound by the terms of a collective bargaining agreement, even though the member is not formally a party to the agreement, and may not even belong to the union which negotiated it. (Relyea v. Ventura County Fire Protection Dist. (1992) 2 Cal.App.4th 875, 882.)

MOU No. 24 between the League (representing the bargaining unit of police officers, lieutenant and below) and the City was entered into on July 31, 1996, for the period from July 1, 1996 to June 30, 2000. Article 5.4 of the MOU provides that the City will pay eligible members of the unit 2% of their base salary as a form of non-pension-based compensation denominated "Uniform Field Assignment Incentive."² To be eligible for the Incentive pay, an officer must be subject to the MOU and be "assigned to a division or other organizational component which works in the field in uniform." No provision in the MOU identifies the Uniform Field Assignment Incentive pay as either Special Pay or Assignment Pay, terms which are discussed below. Approximately 5,000 of 9,000 officers in the bargaining unit receive the Incentive pay and no pension contributions are deducted from it, because it is designated non-pension-based.

Article 1.7 of the MOU states that if any Article, part, or provision is in conflict with or inconsistent with any Charter provision, that Article, part, or provision shall be severed, suspended and superceded.³

The Petition for Writ of Mandate

Appellant Morgan requested the Pension Board to treat Incentive pay as part of the Final Average Salary for pension calculation purposes. Following denial by the Board, Morgan filed a petition under Code of Civil Procedure section 1085, alleging on behalf of himself and all current and former members of the Plan who had received Incentive pay that the Board had a ministerial duty to include Incentive pay in the pension base. The petition was apparently amended to include appellants Preciado and Jones as named plaintiffs.⁴

The petition was heard and denied on the ground that the unambiguous intention of the parties to the MOU, in adding additional compensation in the form of Incentive pay, was that this compensation be excluded from the base from which pension benefits, were calculated. This appeal ensued.

APPELLANTS' CONTENTIONS

Appellants contend that: Uniform Field Assignment Incentive pay constitutes Special Pay and/or Assignment Pay within the meaning of the Los Angeles City Charter; the Charter requires inclusion of Special Pay and Assignment Pay in an officer's pension base; consequently, the MOU exclusion of Incentive pay from pension base must be deleted under Article 1.7 of the MOU, which requires severance of any MOU provision inconsistent with the City Charter.

DISCUSSION

A writ of mandate "may be issued by any court . . . to compel the performance of an act which the law specifically enjoins, as a duty resulting from an office, trust, or

station . . . ." (Code. Civ. Proc., 1085.) To obtain issuance of a writ of mandamus under Code of Civil Procedure section 1085, the petitioner must demonstrate that there is no other plain, speedy, and adequate remedy, that the respondent has failed to act on a clear ministerial duty to do so, and that the petitioner has a clear right to such performance. (Quirk v. Board of Education (1988) 199 Cal.App.3d 729, 733.) A ministerial act is one which a public officer is required to perform in a prescribed manner in obedience to the mandate of legal authority, without regard to his own judgement or opinion. (Transdyn/Cresci JV v. City and County of San Francisco (1999) 72 Cal.App.4th 746, 752.) Mandamus is also available to "correct those acts and decisions of administrative agencies which are in violation of the law . . . ." (Bodinson Mfg. Co. v. California E. Com. (1941) 17 Cal.2d 321, 329.)

The interpretation of a contract is subject to de novo review where the interpretation does not turn on the credibility of extrinsic evidence. (Sunniland Fruit, Inc. v. Verni (1991) 233 Cal.App.3d 892, 898.) The interpretation of statutes and regulations is similarly subject to de novo review. (Carmona v. Division of Industrial Safety (1975) 13 Cal.3d 303, 310.)

With these principles in mind, we examine the MOU between the City and the League⁵ and the charter provisions relied upon by the League.

The Memorandum of Understanding

The express language of Article 5.4, subdivision (A) of the MOU states that Uniform Field Assignment Incentive pay is not pension-based. "A contract must be interpreted to give effect to the mutual, expressed intention of the parties. Where the parties have reduced their agreement to writing, their mutual intention is to be determined, whenever possible, from the language of the writing alone." (Ben-Zvi v. Edmar Co. (1995) 40 Cal.App.4th 468, 473.) The unambiguous intention of the parties to the MOU is that eligible police officers may receive Incentive pay, a non-pension-based form of compensation.⁶

Appellants concede that Uniform Field Assignment Incentive pay is not a pay category specified in the Charter as contributing to a pension base. But they contend that Incentive pay fits the Charter definitions of "Special Pay" and "Assignment Pay," both of which are pension-based under the Charter. Appellants urge that the severability clause in Article 1.7 of the MOU, applicable to any "Article, part, or provision" inconsistent or in conflict with existing law, must be applied to excise that part of Article 5.4 which provides that Incentive pay not be pension-based, but that the remainder of the Article which creates the Incentive pay must be retained. We are not persuaded.

Having entered into a collective bargaining agreement, a party cannot retain that part of an agreement which creates a benefit, while rejecting a less favorable provision, such as limitations on that agreed-upon benefit....