Usher v. County of Monterey

• Decision Date: 02 June 1998
• Docket Number: No. H016694,H016694
• Citation: 65 Cal.App.4th 210,76 Cal.Rptr.2d 274
• Court: California Court of Appeals Court of Appeals
• Parties: , 98 Daily Journal D.A.R. 7260 Chi-na USHER, Plaintiff and Respondent, v. COUNTY OF MONTEREY, Defendant and Appellant.

Page 274

76 Cal.Rptr.2d 274

65 Cal.App.4th 210, 98 Daily Journal D.A.R. 7260

Chi-na USHER, Plaintiff and Respondent, v. COUNTY OF MONTEREY, Defendant and Appellant.

No. H016694.

Court of Appeal, Sixth District, California.

June 2, 1998.

As Modified on Denial of Rehearing June 23, 1998.

Witzig, Hannah & Sanders, Mark P. Witzig, Santa Cruz, for Defendant and Appellant.

Lemaire, Faunce, Pingel & Singer, Edward L. Faunce, Seal Beach, for Plaintiff and Respondent.

BAMATTRE-MANOUKIAN, Associate Justice.

The County of Monterey (hereafter the County) appeals from a judgment whereby the trial court granted a petition for a writ of administrative mandamus. The court directed that the County set aside a decision denying disability retirement benefits to employee David Usher, find instead that Usher was disabled and award him disability retirement benefits retroactive to his last day of service. The County argues that the court erred in finding that it did not proceed in the manner required by law in failing to appoint an administrative law judge to conduct the proceedings, and further argues that even if the court's interpretation of the law was correct, the court should have remanded the matter to the County for a new hearing before an administrative law judge rather than directing the County to reverse its decision. We agree with this second point. Under Government Code section 21156 (formerly, § 21025), the County was required to appoint an administrative law judge to conduct the proceedings. Because the hearing officer appointed by the County did not have the authority under the relevant statutes to hear the case and render findings, the County was without jurisdiction to make a decision based on those findings. (See National Auto. & Cas. Ins. Co. v. Downey (1950) 98 Cal.App.2d 586, 594, 220 P.2d 962.) We will therefore reverse the judgment and direct that the court enter judgment granting the writ petition but remanding the proceedings to the County for a new hearing before an administrative law judge.

BACKGROUND

In 1981, David Usher began working for the County of Monterey as a deputy sheriff after a career in the United States Army. He was first assigned to corrections where he spent approximately three years as a jailer. He then served as a bailiff and transportation deputy until December of 1986, when he became ill, complaining of chest pains, shortness of breath and numbness of the left arm. He was hospitalized for several days. His blood pressure and cholesterol were high and he was placed on several medications for these conditions.

Usher's assignments at the county jail and in transportations had been very stressful. He often was asked to transport as many as 20 prisoners at a time, with no backup. In addition to tightness in his chest, he began to feel anxious and depressed. In 1986, his physician placed him on Prozac. Following his illness in December of 1986, his job as bailiff and transportation deputy was divided and he was assigned to transportation deputy duties only. He continued to experience some chest pains and depression and was referred to the county physician, Dr. Nomof, in May of 1987.

Dr. Nomof found that Usher suffered from "arteriosclerotic heart disease" and hypertension and that his condition should be followed closely by a cardiologist. He also noted that the previous year coronary angiograms had revealed a minor lesion in one of the coronary arteries. He put work restrictions on Usher of "Category D," light duty, noting that he believed Usher could "safely continue the work as a Bailiff" with light duty restrictions without undue risk to his heart. In Nomof's opinion, Usher's condition appeared to be stable and medically manageable.

Usher was assigned as a bailiff in traffic court and spent the next two years in that assignment. Although there were occasional stresses, he enjoyed the work and found it "far less stressful" than his previous assignments. Compared to transporting prisoners, his new assignment was, in his words, a "piece of cake." His medical condition stabilized and even improved slightly. A Thallium scan and treadmill test had been performed when he saw Dr. Nomof in May of 1987 and similar tests were done two years later in April of 1989. Comparing the results of these two tests, Dr. Nomof found the later tests indicated "somewhat better heart function" than the earlier ones. "[T]hey reflect continued stability of [Usher's] heart status and indeed even slight improvement in cardiac function." In a report dated October 16, 1989, Dr. Nomof concluded that Usher was "certainly ... capable" of performing light duty as recommended in 1987.

Dr. Markovitz disagreed somewhat with Dr. Nomof's assessment. He felt that the stress Usher had experienced while at the jail and in transportation had been extreme. Although his new assignment as bailiff was much less stressful, Dr. Markovitz reported that Usher still had chest pains from time to time. He stated that Usher could continue with his "light duty" work, but believed his arteriosclerosis would advance due to stress.

During the time Usher served as a bailiff in traffic court, his court was near the clerks' office and he frequently interacted with the women clerks. Several incidents were reported during 1988 involving complaints of sexual harassment. The first two incidents were investigated but no formal warning or reprimand was issued. The third incident prompted a verbal warning. In December of 1988, Usher was in a drunk driving accident, following which he was suspended for two weeks without pay. In July of 1989, after several incidents involving a new clerk at the court, Usher was informed by the County that there would be an investigation into claims of sexual harassment against him. According to him, he was told that he would have to return to his assignment at the jail while the investigation was pending. He testified that when he inquired at the jail, he was told that there were no light duty jobs available.

Usher went to see his regular doctor on July 29, 1989. He was very upset about the sexual harassment charges, which he believed were false and unfair, and about the prospect of having to return to work with prisoners. His doctor found his blood pressure to be extremely high. She advised him to take some time off work, and she increased his Prozac medication and recommended that he see a psychiatrist. He did not return to work after July 29, 1989.

The investigation of the sexual harassment charges went forward and on October 13, 1989, Usher was notified that he was being terminated for cause. He was awarded regular service retirement. He appealed the County's decision to terminate his employment. ¹

On October 26, 1989, Usher applied to the Public Employees' Retirement System (PERS) for disability retirement. On June 26, 1990, the County of Monterey informed PERS of its decision that Usher was not incapacitated for the performance of his duties as deputy sheriff and was therefore not eligible for disability retirement. ² On June 26, 1991, he appealed this decision. A hearing was held on December 22, 1993 before hearing officer Kent Rice and Administrative Law Judge Robert Coffman. Usher testified and numerous medical reports were received as evidence. The parties submitted written briefs.

The hearing officer issued his findings on February 1, 1994. He found that the medical reports indicated that Usher was capable of performing his job as bailiff in July of 1989 when he left work, and that he was not substantially incapacitated from his employment when he was terminated in October of 1989. After reconsideration, the hearing officer issued substantially the same findings on April 12, 1994.

Usher filed a petition for a writ of mandate in superior court on August 18, 1994. He alleged the proceedings were unfair because a hearing officer employed by the County, rather than the administrative law judge, conducted the hearing and issued the findings, contrary to the express provisions of Government Code section 21025. ³ In addition he alleged that the weight of the evidence showed that he was entitled to disability pension because the County was not able to provide him with a permanent "light duty" position.

During the superior court hearing on the writ petition, the parties focused on the first of these two issues and the court continued the matter for further briefing on the question whether the County was required to have the hearing conducted by an administrative law judge. At the end of the resumed hearing on December 20, 1996, the court indicated it agreed with Usher on this issue and therefore granted the writ.

On February 4, 1997, a writ of mandamus issued, commanding the County to set aside its decision denying disability pension to Usher and to find that Usher was disabled from performing his duties and was entitled to disability retirement benefits retroactive to his last day of service. The County appeals. ⁴

Standard of Review

The inquiry in an administrative mandamus proceeding is whether there was a fair trial and whether the agency abused its discretion. An abuse of discretion is established if the agency has not proceeded in the manner required by law, the order is not supported by the findings or the findings are not supported by the evidence. (Code of Civ. Proc., § 1094.5, subd. (b).)

Here the trial court determined that the County had not proceeded in the manner required by law, pursuant to Government Code section 21025 (now § 21156), by appointing a hearing officer rather than an administrative law judge to conduct the appeal hearing. On review in this court, questions of statutory interpretation are questions of law warranting independent review. (Land v. Anderson (1997) 55 Cal.App.4th 69, 63 Cal.Rptr.2d 717; Rosenblit v. Superior Court (1991) 231 Cal.App.3d 1434, 1444, 282 Cal.Rptr. 819.)

Government Code Sections 11512 and 21156

The County contracted with a hearing...