Peace Officers' v. County of L.A.

• Decision Date: 11 February 2004
• Docket Number: No. B163710.,B163710.
• Citation: 115 Cal.App.4th 866,9 Cal.Rptr.3d 615
• Court: California Court of Appeals Court of Appeals
• Parties: LOS ANGELES COUNTY PROFESSIONAL PEACE OFFICERS' ASSOCIATION et al., Appellants, v. COUNTY OF LOS ANGELES et al., Respondents.

9 Cal.Rptr.3d 615

115 Cal.App.4th 866

LOS ANGELES COUNTY PROFESSIONAL PEACE OFFICERS' ASSOCIATION et al., Appellants, v. COUNTY OF LOS ANGELES et al., Respondents.

No. B163710.

Court of Appeal, Second District, Division 8.

February 11, 2004.

Review Denied May 19, 2004.

Silver, Hadden & Silver, and Stephen H. Silver, Santa Monica, and Katherine Lipel for Appellants.

Goldstein, Kennedy & Petito, Gregory G. Kennedy and Deborah H. Petito, Los Angeles; Steve Morris, County Counsel, for Respondents County of Los Angeles and David Janssen.

David L. Muir, Chief Counsel, Margaret L. Oldendorf, Sr., Staff Counsel, and Michael D. Herrera, Staff Counsel, for Respondent Los Angeles County Employees Retirement Association.

RUBIN, J.

Petitioners William Kupper, Bennie Layne, and the Los Angeles County Professional Peace Officers' Association appeal from the judgment entered after the trial court denied their mandate petition against Los Angeles County and the Los Angeles County Employees' Retirement Association. For the reasons set forth below, we affirm the judgment.

FACTS AND PROCEDURAL HISTORY

William Kupper and Bennie Layne worked as investigators for the Los Angeles County District Attorney's Office.¹ Both men stayed off work on a temporary disability leave after being injured on the job, but retired after their disabilities became permanent.² Under the applicable County ordinances, D.A. investigators may accumulate up to 320 hours in current and deferred vacation time. If an employee's vacation total exceeds 320 hours as of year's end, however, the balance "shall be reduced" by the excess amount, with the employee paid for the lost vacation hours at the rate of his salary. (L.A. County Code, § 6.18.080E.) Vacation time that is cashed out under this provision is added into the employee salary figure used to calculate retirement benefits.

While out on a temporary leave due to a work-related injury, however, none of the County provisions limiting the carryover of vacation time apply. (L.A. County Code, § 6.20.070F.1.) The County interprets this to mean that it will not cash out excess vacation time while an employee is on a work-related disability leave, but permits the employee to keep the accrued vacation time. The vacation carryover limits do not kick in again until "the end of the first vacation anniversary year of [the disabled] employee's return to duty." (L.A. County Code, § 6.20.070F.1.) When Kupper and Layne retired, each was paid back for all accumulated vacation hours. However, because their vacation time was cashed out after retirement, the money they were paid was not used to determine their pension benefits.

Kupper, Layne, and their union, the Los Angeles County Professional Peace Officers' Association (the Association) brought a mandate petition (Code Civ. Proc., § 1085) against the County, its chief administrative officer, David Janssen, and the Retirement Board of the Los Angeles County Employees' Retirement Association (LACERA), which manages the County's pension system.³ Appellants alleged that they were entitled to the vacation pay cash-out while on temporary disability as a matter of right. By failing to make the payment, they alleged, the County violated its obligation to fully compensate them during that period (Lab.Code, § 4850), thereby reducing the amount of their pension benefits. They also alleged that respondents' conduct violated their constitutional equal protection rights. The D.A. supplied uncontradicted evidence showing that its policy and practice was to have all its employees take enough vacation time each year to keep their accrued vacation time under the 320-hour lid. Only in a very few exceptional cases caused by the demands of the job did the D.A. allow its workers to carry over more than 320 hours.

The trial court found for respondents and denied appellants' petition. This appeal followed.

STANDARD OF REVIEW

Appellants brought a petition for traditional mandate. (Code Civ. Proc., § 1085.) That type of petition seeks to enforce a mandatory and ministerial duty to act on the part of an administrative agency or its officers. Appellants therefore had to show: (1) a clear, present, and usually ministerial duty to act; and (2) that they had a clear, present and beneficial right to have that duty performed. Mandate will not issue if the duty is not plain or is mixed with discretionary power or the exercise of judgment. In reviewing the trial court's ruling, we will affirm if substantial evidence supports its findings and judgment. To the extent questions of law such as statutory interpretation are involved, we exercise our independent judgment. (Unnamed Physician v. Board of Trustees (2001) 93 Cal.App.4th 607, 618-619, 113 Cal.Rptr.2d 309.)

DISCUSSION

Labor Code section 4850 (section 4850) is part of the workers' compensation laws. When certain public safety officers, including D.A. investigators, are injured on the job, it provides those employees a leave of absence for up to one year "without loss of salary" instead of the scheduled workers' compensation benefits applicable to most other employees. (§ 4850, subds.(a), (b)(5).) After one year, the employee is entitled to an unpaid leave of absence and whatever regular workers compensation benefits may be available. Payments made under section 4850 are considered workers' compensation benefits, not salary. (City of Martinez v. Workers' Comp. Appeals Bd. (2000) 85 Cal.App.4th 601, 613-614, 102 Cal.Rptr.2d 588.)

The phrase "without loss of salary" has been construed to mean sick pay and other fringe benefits to which an employee is entitled. (Mannetter v. County of Marin (1976) 62 Cal.App.3d 518, 524, 133 Cal.Rptr. 119 (Mannetter); Austin v. City of Santa Monica (1965) 234 Cal.App.2d 841, 845-846, 44 Cal.Rptr. 857 (Austin).) The D.A.'s contemporaneous administrative practices are relevant to determining whether an employee is entitled to a benefit, thereby converting it into salary under section 4850. (Johnson v. Contra Costa County Fire Protection Dist. (1972) 23 Cal.App.3d 868, 873, 100 Cal.Rptr. 561 (Johnson).)

Kupper and Layne contend under Johnson, supra, 23 Cal.App.3d 868, 100 Cal.Rptr. 561, and Austin, supra, 234 Cal.App.2d 841, 44 Cal.Rptr. 857, that they were entitled to a cash-out of their excess vacation time during the time they were on disability leave, meaning that the County's failure to credit its buy-back as such violated section 4850.⁴ Both decisions are inapplicable, however. The plaintiff in Johnson was a firefighter who sought holiday pay for all holidays occurring during his year-long disability leave. The ordinance governing his eligibility for holiday pay required that he have been in a shift position on the day before the holiday and had worked at least one shift after the holiday. The fire department placed the injured worker in a nonshift category during his leave, therefore depriving him of the right to holiday pay. When the ordinance was combined with the department's own administrative practices, firefighters in shift positions always received holiday pay and the department could not strip away that right by placing the plaintiff in a nonshift position during his disability leave. (Johnson, supra, at p. 873, 100 Cal.Rptr. 561.) The plaintiff in Austin had one day of accumulated sick leave deducted for each day he received salary as workers' compensation under section 4850. While suggesting that a limit on the right to earn sick leave might have been proper, accumulated sick leave that had already been earned was part of the employee's salary and taking it away violated section 4850. (Austin, supra, at pp. 845-846, 44 Cal.Rptr. 857.) Both Johnson and Austin involved the right to benefits that were guaranteed or vested. As set forth below, that is not the case here and we therefore believe Mannetter, supra, 62 Cal.App.3d 518, 133 Cal.Rptr. 119, is applicable.

The plaintiff in Mannetter was a deputy sheriff out on temporary disability leave for a work-related injury that occurred on July 3. The deputy had been scheduled to work on the July 4 holiday which, under the terms of his union's collective bargaining agreement, would have entitled him to time-and-a-half holiday pay. The deputy sued when he was not paid for the July 4 holiday, contending that it was part of his salary under section 4850.

In affirming the trial court's denial of the deputy's mandate petition, the appellate court focused on the terms of the union's agreement, which stated that an employee "who is required to work" on a holiday is entitled to holiday pay. The Mannetter court rejected the deputy's attempt to interpret the phrase "required to work" as "scheduled to work" or as "required to work but does not work for a justifiable reason." Distinguishing its facts from those in Johnson and Austin, where the employee had a clear right to certain benefits, the Mannetter court refused to extend section 4850 to entitlements that an employee might reasonably have received during his disability leave. To hold otherwise, the court said, could allow an employee on disability leave to claim he would have received a raise and a promotion, opportunities which were denied him because of his injury. Therefore, despite the strong public policy to fully indemnify employees covered by section 4850, "this policy does not include indemnification for benefits that an employee might have received as a condition of employment during the period of time he was on a leave of absence." (Mannetter, supra, 62 Cal.App.3d at p. 525, 133 Cal.Rptr. 119.)

The undisputed evidence in this case showed that in order to avoid cash buy-outs of excess vacation time, the D.A. made employees take vacation when needed to bring their accrued vacation time under the 320-hour limit. In one recent period, just 49 of the D.A.'s 2,000 employees received a vacation buy-out. Most were exceptional cases and involved attorneys who were unable to take vacation due to trials...