Neeley v. Board of Retirement

• Citation: 36 Cal.App.3d 815,111 Cal.Rptr. 841
• Court: California Court of Appeals
• Decision Date: 21 January 1974
• Parties: J. Delbert NEELEY and Mace T. Barnes, Plaintiffs and Respondents, v. BOARD OF RETIREMENT OF the COUNTY OF FRESNO, Defendant and Appellant. Civ. 1741.

Page 841

111 Cal.Rptr. 841

36 Cal.App.3d 815

J. Delbert NEELEY and Mace T. Barnes, Plaintiffs and Respondents, v. BOARD OF RETIREMENT OF the COUNTY OF FRESNO, Defendant and Appellant.

Civ. 1741.

Court of Appeal, Fifth District, California.

Jan. 21, 1974.

Hearing Denied March 20, 1974.

[36 Cal.App.3d 817] Robert M. Wash, County Counsel, Max E. Robinson, Deputy County Counsel, Fresno, for defendant and appellant.

Lawrence W. Young, Robert L. Young, Fresno, for plaintiffs and respondents.

OPINION

GEO. A. BROWN, Presiding Justice.

County of Fresno employees are covered by the provisions of the 1937 County Employees Retirement Law (Gov.Code, § 31450 et seq.), including, as of January 1, 1970, safety membership by certain persons employed by the sheriff's office. Set forth in the margin are three sections of the Government Code germane to the determination of persons who fall in the category of safety members. ¹

In addition to other distinctions from persons in the regular public service, an employee who is classified as a safety member is entitled to earlier eligibility for retirement (Gov.Code, §§ 31662.4, 31671) and a person who is older than 35 years at the time he is hired cannot be initially employed as a safety member. (Gov.Code, § 31558.)

Respondents are two persons employed in the Fresno County Sheriff's Office with a civil service classification of Identification Technician II. The appellant, Board of Retirement of the County of Fresno (hereinafter 'Board of Retirement'), after a hearing denied their applications for classification as safety members for the purpose of the retirement law. Respondents thereupon petitioned the superior court in administrative mandamus pursuant to Code of Civil Procedure section 1094.5 for review of the Board of Retirement's decision. The cause was submitted to the lower court upon the record of proceedings before the Board of Retirement. The court granted a peremptory writ of mandate ordering the Board of Retirement to declare respondents to be safety members. The Board of Retirement has appealed.

Findings of fact and conclusions of law were not requested and were thereby waived.

Attached as Appendix 'A' is the job description of Identification Technician II, and as Appendix 'B' are the descriptions of duties actually performed by respondents Neeley and Barnes, respectively, as they set them forth in a county-wide classification survey. ²

Both respondents were initially employed as deputies sheriff, Barnes in 1942 and Neeley in 1949. Each was sworn as a deputy sheriff and each carried a badge. Each became involved in criminal identification work and each attained the rank of sergeant. In 1963 their civil service classification was changed from sergeant to Identification Technician II. However, despite that change, each remains sworn as a deputy sheriff and each continues to carry a badge and identification card as a deputy sheriff, though their duties as identification technician have continued unaffected by the change in classification.

Their work is done inside, it not being necessary to go outside to gather evidence which they analyze and classify. Their work is highly technical and each has been graduated from numerous training schools. Their job description does not require that they come in personal contact with the prisoners, and in fact they rarely do so.

Though respondents cannot be put back into patrol cars on a permanent basis absent a complete reclassification, they are required to take the same physical examination as safety members, and they are subject to 24-hour emergency call and have to qualify each year with handguns, rifles, shotguns, batons and other weapons. Respondents have been called out in emergencies in the past, such as the 1968 Fresno riots and the July 4, 1970, riots in Yosemite when 'bus loads of hippies' were brought in from Yosemite for booking.

In reviewing the decision of the Board of Retirement by administrative mandamus pursuant to Code of Civil Procedure section 1094.5, the trial court and this court are bound by the substantial evidence rule (Bixby v. Pierno (1971) 4 Cal.3d 130, 149, 93 Cal.Rptr. 234, 481 P.2d 242; Bekiaris v. Board of Education (1972) 6 Cal.3d 575, 592 fn. 11, 100 Cal.Rptr. 16, 493 P.2d 480), the function of the trial and appellate courts being to determine if the record is free from legal error (Griggs v. Board of Trustees (1964) 61 Cal.2d 93, 96, 37 Cal.Rptr. 194, 389 P.2d 722). In this instance, however, as the trial judge noted, there was no substantial conflict in the evidence regarding the duties of the respondents and the relationship of those duties to law enforcement. Accordingly, the proper interpretation of the statutory language is a question of law for the court and we are not constricted in this regard by the conclusions of the trial court. (Evid.Code, § 310; Neal v. State of California (1960) 55 Cal.2d 11, 17, 9 Cal.Rptr. 607, 357 P.2d 839, cert. den., 365 U.S. 823, 81 S.Ct. 708, 5 L.Ed.2d 700; Crumpler v. Board of Administration Employees' Retirement System (1973) 32 Cal.App.3d 567, 576--577, 108 Cal.Rptr. 293; Noroian v. Department of Administration (1970) 11 Cal.App.3d 651, 654, 89 Cal.Rptr. 889.)

In construing the statute, the primal principle of statutory construction requires the ascertainment of the intent of the legislative body. (Select Base Materials v. Board of Equal. (1959) 51 Cal.2d 640, 645, 335 P.2d 672.) When, as here, there is no direct evidence of the legislative intent, the court turns first to the words of the enactment for the answer and may also rely upon extrinsic aids. (People v. Knowles (1950) 35 Cal.2d 175, 182--183, 217 P.2d 1, cert. den., 340 U.S. 879, 71 S.Ct. 117, 95 L.Ed. 639; In re Miller (1947) 31 Cal.2d 191, 198--199, 187 P.2d 722.)

Referring to the applicable statutory provisions (see fn. 1, Supra), it is readily apparent that the key phrase is 'active law enforcement.' Section 31469.3, subdivision (b), uses the phrase in defining a safety member, and section 31470.3 excludes deputies sheriff ³ whose 'principal duties clearly do not fall within the scope of active law enforcement, even though such a person is subject to occasional call, or is occasionally called upon, to perform duties within the scope of active law enforcement. . . .'

The Board of Retirement decided respondents are not engaged in active law enforcement, and the trial court held they are. Great weight should be given to the administrative interpretation of the Board of Retirement unless clearly erroneous. (Gov.Code, § 31470.8; Rivera v. City of Fresno (1971) 6 Cal.3d 132, 140, 98 Cal.Rptr. 281, 490 P.2d 793.)

At the time the learned trial judge rendered his decision he did not have the benefit of any judicial guidance. This court, however, is more fortunate in that two recent cases have interpreted the phrase 'active law enforcement' in connection with analogous provisions in other statutes.

In Crumpler v. Board of Administration Employees' Retirement System, Supra, 32 Cal.App.3d 567, 108 Cal.Rptr. 293, the court interpreted the meaning of the phrases 'active law enforcement' and 'whose functions do not clearly fall within the scope of active law enforcement service' under the Public Employees Retirement System (Gov.Code, §§ 20019, 20020). In that case the respondent employees were animal control officers whose principal duties involved the enforcement of state and local laws pertaining to the licensing, control and maintenance of animals. In performing these duties, they sometimes used marked police vehicles with police radios and were occasionally called on to serve as backup units at the scenes of crimes. They were issued identification cards and badges, wore policemen's uniforms and were required to carry and be trained in the use of firearms. After a hearing, the Board of Retirement determined that they were not entitled to safety member status and accordingly had them reclassified into 'miscellaneous membership.' They sought a writ of mandate in the superior court. The writ was granted and the board appealed. The court of appeal reversed, holding that the applicants' principal duties did not fall within the scope of active law enforcement. The court stated:

'The provision of a special category of retirement membership for policemen relates to the hazardous nature of their occupation. (Citation.) The phrase 'active law enforcement service' as used in section 20020 was no doubt intended to mean law enforcement services normally performed by policemen. As the Attorney General has suggested, it means the active enforcement and suppression of crimes and the arrest and detention of criminals. (Citation.) In a loose sense animal control officers are engaged in active law enforcement but so are a myriad of other public employees such as building inspectors, health officers, welfare fraud investigators and the like but their duties can hardly be said to constitute 'active law enforcement service' as contemplated by the statute. The crimes with which policemen normally deal are those against persons and property and not violations of police regulations. Petitioners' duties as animal control officers cannot be said to 'clearly fall within the scope of active law enforcement service' as that term is used in section 20020. The board's determination that petitioners were improperly classified as local safety members must be upheld.' (32 Cal.App.3d at pp. 578--579, 108 Cal.Rptr. 293, at p. 301; fn. omitted.)

In Kimball v. County of Santa Clara (1972) 24 Cal.App.3d 780, 101 Cal.Rptr. 353, a correctional officer at the county jail applied for disability benefits as a safety member under Labor Code section 4850. That section, like the ones here involved, excluded employees whose principal duties 'do not clearly come within the scope of active law enforcement service. . . .' It was uncontroverted that the applicant's principal duties involved the supervision of inmates, the detection of...