Nolan v. City of Anaheim

92 P.3d 350, 14 Cal. Rptr. 3d 857, 33 Cal. 4th 335, 2004 Cal. Daily Op. Serv. 5935, 2004 Daily Journal DAR 8137, 2004 Cal. LEXIS 5977

• Court: California Supreme Court
• Decided: July 1, 2004
• Docket: S113359
• Status: Published

Opinions

Opinion

BROWN, J.

Plaintiff Steven W. Nolan was a police officer for the City of Anaheim (Anaheim); his last assignment was as a patrol officer. Pursuant to Government Code section 21156,¹ Mr. Nolan has applied for permanent disability retirement benefits on the ground that threats and harassment by other Anaheim officers have rendered him “incapacitated physically or mentally for the performance of his . . . duties in the state service.” (Italics added.) The question presented is what, for the purposes of section 21156, is meant by “state service”?

“State service,” Mr. Nolan contends, refers to the applicant’s last employer. Therefore, Mr. Nolan argues, in order to qualify for disability retirement, he need only show he is incapable of continuing to perform his duties as a patrol officer for Anaheim. We disagree. We conclude that in order to qualify for disability retirement under section 21156, Mr. Nolan will have to show not only that he is incapacitated from performing his usual duties for Anaheim, but also that he is incapacitated from performing the usual duties of a patrol officer for other California law enforcement agencies. Assuming Mr. Nolan makes such a prima facie showing, the burden will then shift to Anaheim to show not only that Mr. Nolan is capable of performing the usual duties of a patrol officer for other California law enforcement agencies, but also to show that similar positions with other California law enforcement agencies are available to Mr. Nolan. By similar positions, we mean patrol officer positions with reasonably comparable pay, benefits, and promotional opportunities.

I. Factual and Procedural Background

Mr. Nolan began work as a police officer with Anaheim in 1984. He was number one in his sheriff’s academy class and received outstanding ratings early in his career. In 1991, upon transferring to the gang unit, Mr. Nolan reported what he believed to be excessive use of force by fellow officers. As an apparent consequence, Mr. Nolan experienced strained relations with other members of the gang unit, and he voluntarily returned to patrol duty in 1992.

Five months later, after an internal affairs investigation failed to substantiate any misconduct on the part of the other officers, disciplinary charges were brought against Mr. Nolan for violation of department rules. The charges included unbecoming conduct, unsatisfactory performance, misuse of sick time, and improper handling of evidence. Mr. Nolan was fired, and he took the case to arbitration. The arbitrator ordered him reinstated, but suspended for five days.

Shortly after the arbitration, Mr. Nolan received two threatening telephone calls and numerous telephone hang-ups. He believed the calls were placed by Anaheim police officers. One caller warned him to always wear his vest, an apparent allusion to being shot at, and the other said, “Welcome back, you’re fucking dead.” As a consequence, Mr. Nolan filed for disability retirement; he also filed a civil “whistleblower” suit seeking damages for wrongful termination.

In the whistleblower suit, the jury awarded Mr. Nolan $223,000 for the wrongful termination, but reduced the award by $63,000 on the ground he could have found comparable employment. In addition, the jury awarded Mr. Nolan $180,000 for emotional stress.

In this disability matter, the administrative law judge found that Mr. Nolan suffered no mental incapacity and recommended denial of his request. Anaheim adopted the decision, and Mr. Nolan filed this action, seeking a writ of mandamus to compel the city to grant him disability retirement.

The superior court found that Mr. Nolan was permanently incapacitated for the performance of his duties as a police officer for Anaheim. The court based its finding on the testimony of a psychologist retained by Mr. Nolan, concurred in by a psychiatrist retained by the city’s insurance carrier, that he was not emotionally and mentally able to work as a police officer due to his fear for his personal safety and the retaliation he had already experienced.² The court further found that Mr. Nolan’s fear of retaliation was based, in part, on the likelihood that he could not count on fellow officers for backup in time of need. The court noted that his posttermination arbitration proceeding and his civil whistleblower suit had established that the police department did not have sufficient reason to terminate him and that the termination was in retaliation for his informing on fellow officers he believed used illegal force on suspects. The court further noted that even the psychiatrist retained by the city stated that Mr. Nolan’s fears were reasonable.

The Court of Appeal reversed and remanded the cause for reconsideration of the administrative record under what it held to be the appropriate standard, i.e., “whether Mr. Nolan is mentally incapacitated for state service, i.e., perform police services throughout the state . . . .”

We affirm the judgment of the Court of Appeal, which reversed the judgment of the trial court, and we remand the matter for further proceedings consistent with this opinion.

II. Discussion

The rules governing statutory construction are well settled. We begin with the fundamental premise that the objective of statutory interpretation is to ascertain and effectuate legislative intent. (People v. Trevino (2001) 26 Cal.4th 237, 240 [109 Cal.Rptr.2d 567, 27 P.3d 283]; People v. Gardeley (1996) 14 Cal.4th 605, 621 [59 Cal.Rptr.2d 356, 927 P.2d 713].) To determine legislative intent, we turn first to the words of the statute, giving them their usual and ordinary meaning. (Trevino, at p. 241; Trope v. Katz (1995) 11 Cal.4th 274, 280 [45 Cal.Rptr.2d 241, 902 P.2d 259].) When the language of a statute is clear, we need go no further. However, when the language is susceptible of more than one reasonable interpretation, we look to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part. (Granberry v. Islay Investments (1995) 9 Cal.4th 738, 744 [38 Cal.Rptr.2d 650, 889 P.2d 970]; People v. Woodhead (1987) 43 Cal.3d 1002, 1007-1008 [239 Cal.Rptr. 656, 741 P.2d 154].)

The statutory context of this case was recently summarized in Pearl, supra, 26 Cal.4th 189. “The Legislature enacted the Public Employees’ Retirement Law (Gov. Code § 20000 et seq.), ‘to effect economy and efficiency in the public service by providing a means whereby employees who become superannuated or otherwise incapacitated may, without hardship or prejudice, be replaced by more capable employees, and to that end provide a retirement system consisting of retirement compensation and death benefits.’ (Id. § 20001.) Under its provisions, certain persons, including police officers, are eligible for special disability retirement benefits if they are ‘incapacitated for the performance of duty as the result of an industrial disability.’ (Id. § 21151, italics added.) Thus, upon retirement for such a disability, a peace officer ‘shall receive a disability allowance of 50 percent of his or her final compensation plus an annuity purchased with his or her accumulated additional contributions, if any, or, if qualified for service retirement, the member shall receive his or her service retirement allowance if the allowance, after deducting the annuity, is greater.’ (Id. § 21407.) These benefits are free from federal income taxes. (26 U.S.C. § 104(a)(1).)” (Pearl, at pp. 193-194.)

The provision of the Public Employees’ Retirement Law (PERL) at issue here is section 21156, which provides for disability retirement for a member who is incapacitated physically or mentally for the performance of his or her duties in the state service. Section 21156 provides in pertinent part: “If the medical examination and other available information show to the satisfaction of the board, or in case of a local safety member, other than a school safety member, the governing body of the contracting agency employing the member, that the member is incapacitated physically or mentally for the performance of his or her duties in the state service and is eligible to retire for disability, the board shall immediately retire him or her for disability, unless the member is qualified to be retired for service and applies therefor prior to the effective date of his or her retirement for disability or within 30 days after the member is notified of his or her eligibility for retirement on account of disability, in which event the board shall retire the member for service.”

Again, the question presented is what, for the purposes of section 21156, is meant by “state service”?

Mr. Nolan contends that for a police officer, i.e., “a local safety member,” to demonstrate he or she is “incapacitated physically or mentally for the performance of his or her duties in the state service,” the officer need only show an incapacity to continue functioning in “the contracting agency employing the member.”

We disagree. As the Court of Appeal observed, section 21156 does not refer to the employee’s last employing department, it refers to state service. Section 20069 defines “state service” as “service rendered as an . . . officer ... of the state, the university, a school employer, or a contracting agency, for compensation . . . .” When sections 21156 and 20069 are read together, it becomes clear that “state service,” for the purposes of section 21156, means all forms of public agency service that render an employee eligible for the benefits of section 21156. Therefore, in order for Mr. Nolan to qualify for disability retirement under section 21156, he will not only have to show he is incapacitated from continuing to perform his usual duties for Anaheim, but also that he is incapacitated from performing the usual duties of a patrol officer for other California law enforcement agencies covered by the PERL.

The position taken by Mr. Nolan would lead to results that would clearly be at variance with the fundamental policies that led the Legislature to enact the PERL. As previously stated, the Legislature enacted the PERL “to effect economy and efficiency in the public service by providing a means whereby employees who become superannuated or otherwise incapacitated may, without hardship or prejudice, be replaced by more capable employees, and to that end provide a retirement system consisting of retirement compensation and death benefits.” (§ 20001, italics added.) Mr. Nolan asserts that no other law enforcement agency in the state would be willing to hire him because he (1) has accused fellow officers of misconduct, (2) is perceived as a troublemaker for challenging his termination and bringing a whistleblower suit, and (3) has a history of anxiety, depression and fear. However, in response to questions at oral argument, Mr. Nolan’s counsel also insisted that Mr. Nolan would be entitled to permanent disability retirement even if several police departments in communities surrounding Anaheim were to offer him positions that were in all relevant respects similar to the position he held in Anaheim, and his psychological disability did not extend to the other departments. We find it inconceivable that the Legislature, in enacting the PERL “to effect economy and efficiency in the public service,” intended to grant an applicant permanent disability retirement benefits under such circumstances.

Mr. Nolan contends, however, that the granting of such a windfall is compelled by the body of case law that has developed in the Courts of Appeal regarding light duty assignments. As Mr. Nolan points out, under the light duty doctrine, a police officer is not considered to be incapacitated if a permanent light duty position the officer is capable of performing is available within that department. (See, e.g., Barber v. Retirement Board (1971) 18 Cal.App.3d 273 [95 Cal.Rptr. 657] (Barber); Craver v. City of Los Angeles (1974) 42 Cal.App.3d 76 [117 Cal.Rptr. 534] (Craver); O’Toole v. Retirement Board (1983) 139 Cal.App.3d 600 [188 Cal.Rptr. 853] (O’Toole).)

The light duty cases are distinguishable. The seminal light duty cases involved construction of disability retirement provisions of city charters. (Barber, supra, 18 Cal.App.3d at pp. 275-276 [San Francisco]; Craver, supra, 42 Cal.App.3d at p. 79 [Los Angeles]; O’Toole, supra, 139 Cal.App.3d [San Francisco].) Therefore, the question addressed in each of those cases was whether the applicant was capable of filling a permanent light duty assignment that was available in the applicant’s department.³ Mr. Nolan has not brought to our attention, nor has our own research revealed, a light duty case addressing the relevance of the availability of appropriate light duty assignments in other cities. A decision, of course, does not stand for a proposition not considered by the court. (People v. Harris (1989) 47 Cal.3d 1047, 1071 [255 Cal.Rptr. 352, 767 P.2d 619].) Therefore, the fight duty cases are simply not apposite.

In its brief, amicus curiae, the California Public Employees’ Retirement System (CalPERS), warns that a standard of the sort we adopt today—that a peace officer seeking permanent disability retirement must show not only that he is incapacitated from performing his usual duties for his last employer, but also that he is incapacitated from performing the usual duties of his last assignment for other California law enforcement agencies—would not be administrable. Such a test would be impossible to administer, CalPERS contends, because “it requires assumptions about what services are required at other departments or employers other than at [the] City of Anaheim. While it may be possible to imagine some duties that other police departments require of police officers, uniform circumstances of employment around the state cannot be presumed.”

CalPERS has set up a straw man. Doubtless, the duties required of, for example, patrol officers are not uniform throughout the state. However, that is beside the point. The question is: What are the usual duties of a patrol officer? (Mansperger v. Public Employees’ Retirement System (1970) 6 Cal.App.3d 873, 876-877 [86 Cal.Rptr. 450] (Mansperger).)

In Mansperger, the Court of Appeal was called upon to construe former section 21022. (Added by Stats. 1945, ch. 123, § 1, p. 599; repealed by Stats. 1995, ch. 379, § 1, p. 1955.) It provided: “Any patrol or local safety member incapacitated for the performance of duty as the result of an industrial disability shall be retired for disability, pursuant to this chapter, regardless of age or amount of service.” (Italics added.) The Mansperger court held that “incapacitated for the performance of duty,” for the purposes of former section 21022, meant the substantial inability of the applicant to perform his usual duties. (Mansperger, supra, 6 Cal.App.3d at p. 876.) The court acknowledged that the applicant, a state fish and game warden, could no longer lift or carry heavy objects, but observed the necessity for doing so was a “remote occurrence” in a fish and game warden’s job. (Id. at pp. 876-877.) The court also acknowledged that fish and game wardens occasionally need to make physical arrests, but observed that such occasions were “not a common occurrence for a fish and game warden.” (Id. at p. 877.) The evidence showed the applicant “could substantially carry out the normal duties of a fish and game warden.” (Id. at p. 876.) Therefore, the court held, “the board, and the trial court, properly found that petitioner was not ‘incapacitated for the performance of duty,’ within the meaning of section 21022 of the Government Code and, therefore, that he was not entitled to the disability retirement which he sought.” (Id. at p. 877.)

With all due respect to the expertise of CalPERS in administering the PERL, determining the usual duties of a patrol officer should not be that difficult. Every civil service employer must describe the usual duties of every position.

Finally, while the Legislature, in enacting the PERL, was concerned to “effect economy and efficiency in the public service,” it expressly intended to do so “without hardship or prejudice” to “employees who become superannuated or otherwise incapacitated.” (§ 20001.) To deny Mr. Nolan disability retirement benefits on the ground he is capable of working for other California law enforcement agencies would clearly work a hardship on him if, as he claims, no other law enforcement agency would, in fact, be willing to hire him because he has blown the whistle on misconduct by fellow officers. Therefore, if Mr. Nolan shows not only that he is incapacitated from performing his usual duties for Anaheim, but also that he is incapacitated from performing the usual duties of a patrol officer for other California law enforcement agencies, the burden will shift to Anaheim to show not only that Mr. Nolan is capable of performing the usual duties of a patrol officer for other California law enforcement agencies, but also that similar positions with other California law enforcement agencies are available to him.⁴ By similar positions, we mean patrol officer positions with reasonably comparable pay, benefits, and promotional opportunities.

III. Disposition

We affirm the judgment of the Court of Appeal reversing the judgment of the trial court; we remand the matter for further proceedings consistent with this decision.

George, C. J., Chin, J., and Moreno, J., concurred.

1 Unless otherwise indicated, all statutory references are to the Government Code.

2 No issue is raised in this case as to whether section 21151 covers psychiatric incapacity resulting from conflicts with fellow employees. Previously, we have assumed it does. (See Pearl v. Workers’ Comp. Appeals Bd. (2001) 26 Cal.4th 189, 191 [109 Cal.Rptr.2d 308, 26 ] (Pearl) [disability claim “alleging cumulative workplace trauma . . . including psychiatric injury caused by a series of incidents involving other officers and [applicant’s] supervisor”].)

3 (See Barber, supra, 18 Cal.App.3d at p. 278 [section 171.1.3 of the San Francisco Charter was properly construed as referring to “duties required to be performed in a given permanent assignment within the department’]; Craver, supra, 42 Cal.App.3d at p. 80 [“The language of section 182 [of the Los Angeles Charter] indicates that the determination of disability and necessity of retirement is on a departmental basis rather than on that of a single job or a particular duty. The section refers to duties ‘in such department’ and to ‘further service in such department’ ”]; O’Toole, supra, 139 Cal.App.3d at p. 602 [“The sole issue is whether there is substantial evidence to support the trial court’s finding that there was no Tight duty’ assignment in the [San Francisco] [P]olice [Department available to O’Toole”].)

4 In his brief in the Court of Appeal, Mr. Nolan’s counsel discussed bifurcation of the burden of proof. Mr. Nolan’s primary position, of course, is that he should only be required to prove he is incapable of continuing to perform his duties as a patrol officer for Anaheim. However, his fallback position is that once he shows he is incapable of continuing to work as a patrol officer for Anaheim, the burden would shift to Anaheim to prove “the existence of suitable alternate employment opportunities.”

At oral argument in this court, counsel for Anaheim was asked his views on the burden of proof. Counsel responded that if Mr. Nolan showed he was incapable of continuing to perform his usual duties for Anaheim, the burden would shift to Anaheim to show Mr. Nolan was not incapacitated from the performance of his usual duties elsewhere in the state. When asked whether Anaheim would have to show that a position elsewhere in the state was actually available to Mr. Nolan, Anaheim’s counsel responded no, that the test should be capacity, not employability.