Ralston v. State Emp. Retirement System

• Decision Date: 22 May 1969
• Citation: 273 Cal.App.2d 228,78 Cal.Rptr. 31
• Court: California Court of Appeals Court of Appeals
• Parties: William P. RALSTON, Petitioner and Appellant, v. STATE EMPLOYEES' RETIREMENT SYSTEM, Respondent. Civ. 33071.

Page 31

78 Cal.Rptr. 31

273 Cal.App.2d 228

William P. RALSTON, Petitioner and Appellant, v. STATE EMPLOYEES' RETIREMENT SYSTEM, Respondent.

Civ. 33071.

Court of Appeal, Second District, Division 1, California.

May 22, 1969.

As Modified on Denial of Rehearing June 20, 1969.

Hearing Denied July 16, 1969.

William T. Hays and Harold L. Greene, Los Angeles, for petitioner and appellant.

Thomas C. Lynch, Atty. Gen., William L. Zessar, Deputy Atty. Gen., for respondent.

WOOD, Presiding Justice.

William P. Ralston, a retired employee of the Department of Corrections of the State of California, petitioned the superior court for a writ of mandate compelling the State Employees' Retirement System to pay him a disability retirement allowance of 50 per cent of his final compensation as provided in section 21292.8 of the Government Code. The court found that the evidence supported the findings of the Board of Administration of the State Employees' Retirement System that petitioner did not have 'custodial duties' within the meaning of section 21292.8 of said code. Petitioner appeals from the judgment denying his petition.

Appellant contends that while he was an employee in the Department of Corrections he had custodial duties within the meaning of section 21292.8 of the Government Code. That section provides: 'Upon retirement of a member who is an officer or employee in the Department of Corrections having custodial duties for industrial disability he shall receive a disability retirement allowance of 50 percent of his final compensation plus an annuity purchased with his accumulated additional contributions, if any, or, if qualified for service retirement, he shall receive his service retirement allowance if such allowance, after deducting such annuity, is greater.' Since the enactment of said code section in 1961, the State Employees' Retirement System has interpreted that section as not being applicable to employees of the department whose duties are not primarily the securing of physical custody of prisoners. The Attorney General also has given that interpretation to the section (38 Ops.Cal.Atty.Gen. 137).

From 1945 to 1949 petitioner was employed in the Department of Corrections in the position of 'Parole Agent I'; from 1949 to 1956, he was Parole Agent II; and from 1956 to March 18, 1966, he was Parole Agent III. On February 15, 1966, he sustained a heart injury, and by reason thereof his employment with the Department of Corrections was terminated on March 18, 1966. He was awarded ordinary disability retirement (Gov.Code, §§ 21021--21025 and 21295--21297), and he is receiving allowances for such retirement.

Petitioner applied for industrial disability retirement allowances as provided for in section 21292.8 of the Government Code on the ground that he had been an employee 'having custodial duties' within the meaning of that section. The executive officer of the State Employees' Retirement System denied the application. Thereafter, a hearing upon the application was held before a hearing officer of the Office of Administrative Procedure.

Documentary evidence presented at the hearing included detailed specifications of the state personnel board for various classifications of parole agents. The specifications are similar with the exception that as to the higher classifications (e.g., Parole Agent III) the required qualifications include more experience and the duties entail more responsibility, such as supervision of employees in the lower classifications. Some of the required qualifications are education and experience in sociology and criminology. An example of the 'Typical Tasks' specified for the positions is that of Parole Agent II, shown in a footnote. ¹ It is to be noted that a part of such specification of duties is that the parole agent 'investigates cases of parole violators, compiles evidence required to effect the suspension of parole and Apprehends violators for return to custody.' (Italics added.)

Petitioner testified in part as follows: As Parole Agent, grade II, his duties were the same as grade I, except that he assumed supervisory duties. His duties in grade III included supervising the staff, assisting and training subordinates, making special investigations for the Adult Authority, ordinary arrests, approving or disapproving reports, making arrests and transporting prisoners, and returning parole violators to prison. His standard equipment was handcuffs, restraint belt, badge, brief case, and business cards. He was 'on 24-hour call' if parolees, the police, or his subordinates wanted to contact him. Sometimes he would go to the police station to see whether any parolees had been taken into custody. Between 1960 and 1964 he and his subordinates arrested 697 parolees in the San Diego area. He made about 100 of those arrests personally, and he authorized or approved the other arrests. ² In the last two years of his employment he and his agents had an average of 5 to 10 parolees in custody each week. He questioned parolees who had been taken into custody, handcuffed them, searched them, and transported them to jail and to prison. He was in charge of the Nalline Testing Center, was present when narcotic offenders were tested, would order offenders booked, would handcuff them if they became recalcitrant, and, if they did not report for the tests he searched for them and took them into custody, which included 'chasing them over back fences,' grabbing them as they came out 'the back door,' and so forth. Prior to 1964, he and his staff transported parole violators from San Diego to the prison in Chino (thereafter the sheriff assumed such transportation). About 20 to 30 parole violators were returned to prison each month. There were occasions when, pursuant to an all-points bulletin issued by the Adult Authority, he apprehended parole violators. On occasions when he saw a violator on the street, he jumped out of the car and arrested the violator. Some of the violators resisted arrest. In the last two years of his employment, about 20 to 30 per cent of his time was allocated to having persons in custody. He transported persons in custody to California from other states, including New York (twelve times), Florida, and Arizona. He carried a gun on occasions.

Mr. Miller, who is a regional administrator in the Department of Corrections and who was petitioner's supervisor for a few years in San Diego, testified in part as follows: Petitioner's duties as Parole Agent II and III were to manage the San Diego office, to supervise the parole agents there, to hire and train the agents, and to do liaison work with other agencies. In the Parole and Community Service Division of the Department of Corrections, 'custodial duties' means the supervision, counseling, custody, arrest and transportation of parolees. Petitioner's supervisory duties were two-fold--to supervise the staff and to supervise parolees. His primary duty was to supervise the staff. Petitioner performed custodial duties such as arresting, restraining, and transporting parolees. As regional administrator he (witness) did not know specifically, in the absence of time records, what duties petitioner performed. There are about 27,000 prisoners and about 15,000 parolees; and the handling of parolees constitutes a large portion of the responsibilities of the Department of Corrections. The duties of Parole Agent II and III are substantially the same. The supervisor (Parole Agent III) participates in the apprehension of parole violators. The parole agent's manual distributed by the department requires the parole agent to take into custody certain parole violators and suspected violators. He (witness) visits the San Diego office about twice a month and he knows, personally, and from reports, that petitioner on many occasions had persons in custody and transported them from out-of-state and within the state. Parole agents and parole officers are considered to be peace officers, ³ with the administrative mandate that they only use such enforcement powers as may be necessary to their performance as parole agents. They are on '24-hour call' and assist law enforcement agencies in identifying suspects.

In a proposed decision, the hearing officer determined that petitioner, during his employment with the department, did not have custodial duties within the meaning of section 21292.8, and that he was not entitled to the disability retirement allowance provided for therein. The board, in its decision, adopted the proposed decision.

On the hearing of the petition in the superior court, the administrative record was received in evidence. The court found that the decision of the board was supported by the findings and that the findings were supported by the weight of the evidence. A conclusion of law was that the petitioner did not have custodial duties within the meaning of section 21292.8 of the Government Code.

Appellant contends that he had custodial duties within the meaning of said code section. He argues that pension provisions should be liberally construed in favor of the applicant (Gibson v. City of San Diego, 25 Cal.2d 930, 935, 156 P.2d 737; Dillard v. City of Los Angeles, 20 Cal.2d 599, 602, 127 P.2d 917, 128 P.2d 537); and that since parolees are, in contemplation of the law, at all times in legal custody, the very essence of a parole agent's duties is custodial.

Respondent contends that the Legislature, in adding section 21292.8 (and sections 21020.8 and 21290.8) to the Government Code in 1961, did not intend to include parole agents in the category of employees of the department 'having custodial duties.' In this connection, respondent refers to an opinion of the Attorney General, rendered in 1961 (38 Ops.Atty.Gen. 137), wherein said section 21292.8 was interpreted as being inapplicable to parole agents and other departmental employees whose primary function is not the custody or safekeeping of parolees. Respondent argues that since the...