Rigley v. Board of Retirement of San Diego County Emp. Retirement Ass'n

• Decision Date: 26 March 1968
• Citation: 67 Cal.Rptr. 185,260 Cal.App.2d 445
• Court: California Court of Appeals Court of Appeals
• Parties: Willard A. RIGLEY, Petitioner and Respondent, v. BOARD OF RETIREMENT OF the SAN DIEGO COUNTY EMPLOYEES' RETIREMENT ASSOCIATION, Respondent and Appellant. Civ. 8739.

Page 185

67 Cal.Rptr. 185

260 Cal.App.2d 445

Willard A. RIGLEY, Petitioner and Respondent, v. BOARD OF RETIREMENT OF the SAN DIEGO COUNTY EMPLOYEES' RETIREMENT ASSOCIATION, Respondent and Appellant.

Civ. 8739.

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

March 26, 1968.

Rehearing Denied April 15, 1968.

Hearing Denied May 22, 1968.

[260 Cal.App.2d 446] Bertram McLees, Jr., County Counsel, San Diego, for respondent and appellant.

[260 Cal.App.2d 447] Carlson & Hofflund, San Diego, for petitioner and appellant.

OPINION

COUGHLIN, Associate Justice.

This is a proceeding under Section 1094.5 of the Code of Civil Procedure to review the decision of a retirement board denying the application of a member of the retirement system for a service connected disability retirement allowance.

Willard A. Rigley, petitioner-respondent, was a safety member of the San Diego County Employees' Retirement System for more than five years, having served as a deputy sheriff of that county for 23 years; became permanently incapacitated for the performance of duty because of heart trouble; applied for a service connected disability retirement allowance, which was denied by the Board of Retirement of the San Diego County Employees' Retirement Association, appellant; was awarded a non-service connected disability retirement allowance; and brought the instant proceeding to require the Board to grant him a service connected allowance.

The trial court entered judgment ordering issuance of a peremptory writ of mandamus commanding the Board to set aside its decision denying petitioner's application for a service connected disability retirement allowance and to grant him such allowance effective August 23, 1965. The Board appealed from this judgment. We conclude the judgment directing the Board to grant petitioner a service connected disability retirement allowance was proper.

The hearing on petitioner's application, at which evidence oral and documentary was received, consumed three days, i.e., November 10, 15 and 17, 1965. On the latter date counsel for the respective parties presented their arguments, and the matter was submitted for decision.

The Board was comprised of seven members. Only five of the members were in attendance throughout the hearing. At that time 'By-Laws and Regulations' which had been adopted by the Board on January 8, 1964, and approved by the Board of Supervisors on Jan. 14, 1964, were in effect. Rule XIII of the By-Laws and Regulations prescribed the 'procedure for acting upon applications' for retirement alloweances. Pertinent to the case at bench are the following provisions:

'The board shall determine all factual issues raised by the application. At the hearing for disability retirement, the board shall determine first whether the member is permanently incapacitated for the performance of duty, and second, whether his incapacity is a result of injury or disease arising out of and in the course of his employment or whether he has completed five years of service.

'* * *

'* * * All hearings before this board shall be conducted in the following manner:

'* * *

'* * * No hearing before the board shall be held unless at least a majority of the entire board is present. The same members must be in attendance throughout the hearing and only those members who have been in attendance throughout the hearing may vote thereon.

'* * *

'* * * The board shall render its decision by the second regular meeting following the meeting at which the matter is submitted for decision. Any finding or decision of the board must be made by a majority of the members of the board voting. A tie vote results in a failure to find in favor of the applicant and constitutes a denial of the application, or that portion of the application, on which the vote is taken.

'* * *

'* * * A copy of this rule shall be furnished to applicant and to any party at the time notice of hearing is given.

Adoption of Rule XIII was authorized by Government Code, Sections 31525 and 31526; the former provides:

'The board may make regulations not inconsistent with this chapter (viz, the County Employees' Retirement Law of 1937). The regulations become effective when approved by the board of supervisors';

and the latter provides:

'The regulations shall include provisions:

'(a) For the election of officers, their terms, Meetings, and all other matters relating to the administrative procedure of the board. (Italics ours.)

'* * *.'

Clearly the provisions of Rule XIII were not inconsistent with the retirement statute and concerned 'matters relating to the administrative procedure of the board.' (Cf. Wilson v. Civil Service Com., 224 Cal.App.2d 340, 345, 36 Cal.Rptr. 559.)

At a meeting on Dec. 8, 1965, the Board further considered petitioner's application. Only four of the five members who had been in attendance throughout the hearing were present. By the unanimous vote of these four members the Board found petitioner was 'permanently incapacitated for the performance of his duties in the service.' Thereupon the question whether his incapacity was service connected was considered; the temporary chairman put the question: 'Is this permanent incapacity a result of an injury or disease occurring in and arising out of and in the course of his employment'; a vote on this question by the four members resulted in two 'Ayes' and two 'Noes'; further discussion ensued; the chairman again put the question to a vote which resulted in three 'Ayes' and one 'No'; the temporary chairman, who had not been in attendance throughout the hearing, announced his wish to read the transcript and participate in the voting; and, after further discussion, a motion rescinding all action, ordering a transcript of the proceedings and continuing the deliberations to a future time was adopted, only the four attending members voting.

The application was considered again on Jan. 26, 1966. All seven members of the Board were present. The two members who had not been in attendance throughout the hearing stated they had read a transcript of the proceedings. Following a discussion, a motion was made that the Board find petitioner's incapacity was 'a result of injury or disease occurring in and arising out of and in the course of his employment.' Three of the members who had been in attendance throughout the hearing voted 'Aye'; two of the members who had been in attendance throughout the hearing voted 'No'; and the two members who had not been in attendance throughout the hearing voted 'No'. Thereupon, as stated in the minutes of the meeting: 'The chairman announced that the Board finds that the permanent incapacity of Willard Rigley is not a result of injury or disease occurring in and arising out of and in the course of his employment.' After reciting the findings in the premises, the minutes then set forth the following:

'IT IS THEREFORE ORDERED that the application of Willard A. Rigley for a service connected disability retirement be denied, and that said applicant be retired for a non-service connected disability retirement effective August 23, 1965.'

In allegedly making the finding as announced by the chairman and denying petition...