ASHMANN-GERST, Acting P. J. —
The question presented is whether disabled members under the University of California Retirement Plan (UCRP) who receive "Duty Disability Income" (DDI) are considered retired for purposes of entitlement to a retired identification card and concealed weapons endorsement pursuant to the Penal Code. We conclude the answer is no. We therefore affirm the trial court's denial of the petition for writ of mandate by which appellants sought to compel the Regents of the University of California (Regents) to provide them with such identification cards and endorsements.
Plaintiffs and appellants are Allison Jacobs (Jacobs), Dennis Mueller (Mueller), and the Federated University Police Officers Association (FUPOA) (collectively appellants). Jacobs and Mueller were each previously employed by the University of California Police Departments as peace officers.
Mueller was employed as a police sergeant with the University of California, Santa Barbara, Police Department from 1980 through 1998. He was injured on duty in 1997. Mueller's DDI became effective July 2, 1998. Mueller was separated from employment on the day prior to his commencement of DDI, but his DDI actually would have been effective on June 17, 1998, prior to his separation date, if he had not been on active pay status to exhaust his accrued leave benefits. In 1998, Mueller received a retired identification card and endorsement to carry a concealed weapon. He received periodic renewals of each for the next 15 years until he was informed in 2013, that he would not be receiving any more renewals or a good cause hearing. He has elected not to retire.
FUPOA is the exclusive bargaining representative for nonsupervisory peace officers of the University of California, and represents more than 250 members.
Defendant and respondent the Regents governs all 10 University of California schools. The Regents has constitutional power to establish rules and regulations for the operation of the University of California, including the University of California Police Departments. (Cal. Const., art. IX, § 9.)
The UCRP is the Regents' plan for certain employment benefits to university employees, including disability and retirement benefits. Since the UCRP was adopted pursuant to the Regents' constitutional power, it has the force of statute. (Regents of University of California v. City of Santa Monica (1978) 77 Cal.App.3d 130, 135 [143 Cal.Rptr. 276] ["policies established by the Regents as matters of internal regulation may enjoy a status equivalent to that of state statutes"].)
The UCRP provides for "Retirement Income," "Disability Income," and DDI. A "Retired Member" is "a former Active, Inactive, or Disabled Member who ... is receiving Retirement Income." (UCRP, § 2.55, subd. (b), italics omitted.) A "Disabled Member" is defined as "a former Active Member who is eligible for and receives Disability Income ...." (UCRP, § 2.18, italics omitted.) And a "Duty Disabled Member" means "Members [of the Plan] who hold eligible safety classifications as set forth in Plan Regulations"
The DDI provides certain benefits not typically available to retired employees. For example, a Duty Disabled Member can continue to receive and accrue service credit while receiving DDI and while no longer an employee. (UCRP, § 8.18, subd. (e).) According to the Regents, this increases not only the ultimate retirement benefit, should the member later elect to retire, but also lessens the monetary contribution the Duty Disabled Member is required to make towards continuing benefits, such as medical, dental and legal. The Regents points out that while Jacobs had only approximately 10 years of service credit at the time of her disability, she is anticipated to accrue an additional 11 years of service credit.
Additionally, Duty Disabled Members can receive DDI without ever electing to retire. (UCRP, § 8.18, subd. (a).) This can make DDI exempt from income tax for the entire time it is received.
Finally, and perhaps most importantly, Duty Disabled Members are not required to be separated from employment before receiving DDI. By contrast, the effective date of Retirement Income cannot precede separation from university service. (UCRP, § 5.05 [providing that the effective date of Retirement Income for eligible members cannot be earlier than the day following separation from university service or the first day of the month in which the application is received by the plan administrator, whichever is later].)
Section 25455 provides that peace officers who are "`honorably retired'" shall be issued "an identification certificate by the law enforcement agency from which the officer retired," which "shall have an endorsement on the identification certificate stating that the issuing agency approves the officer's carrying of a concealed firearm." This retired officer identification card and endorsement allows such officer to carry a concealed firearm, absent good cause to deny it. (§§ 25400, 25450.) Section 16690 specifically defines an "`honorably retired'" peace officer as including "any peace officer who has qualified for, and has accepted, a service or disability retirement." (Italics added.) It is this latter term that is at issue here, as discussed, ante.
On September 24, 2012, the Alameda Superior Court in Alberts, a nonpublished case (Alberts (Super. Ct. Alameda County, 2012, No. RG12620674)), issued an order on a petition for writ of mandate, denying the writ brought by a duty disabled peace officer seeking the same relief as appellants here, i.e., a retired identification card and endorsement to carry a concealed weapon. The petitioner reasoned that her status as duty disabled was the functional equivalent of being retired, analogizing to other public retirement plans covering peace officers. The court disagreed, finding that the provisions of the UCRP "implie[d] that Duty Disabled and Retired are mutually exclusive states." The trial court concluded that because the petitioner sought relief by writ of mandate, she had to show that the duty the Regents owed her was "clear, present, and usually ministerial," and could not flow from reasoning by analogy and policy considerations.
According to the Regents, following Alberts, "The Regents confirmed that its prior policy of issuing retired identification cards and endorsements for
Gore v. Reisig (2013) 213 Cal.App.4th 1487 [153 Cal.Rptr.3d 433] (Gore)
Subsequent to the Alberts decision, the court in Gore found that "a person must enter retirement from active service as a peace officer to be considered a peace officer who is honorably retired." (Gore, supra, 213 Cal.App.4th at p. 1492.) In Gore, an investigator with the Yolo County District Attorney's Office was terminated from his employment, but resigned during the administrative appeal of his discipline. He did not withdraw his funds from the Public Employees' Retirement System (CalPERS), and when he reached age 50, he began collecting his retirement money. The Gore court concluded that he was not entitled to a retired peace officer identification card or concealed weapons endorsement at the time of his retirement because he had previously resigned and did not retire or collect retirement income from active service. Instead, the court noted, "[w]hen he was a peace officer, he did not accept a service retirement, but instead resigned." (Id. at p. 1493.)
In the petition for writ of mandate filed here, Jacobs and Mueller each sought, in separate causes of action, a writ pursuant to Code of Civil Procedure section 1085, asserting that the Regents has a clear and present ministerial duty to provide them either an identification card and endorsement to carry a concealed weapon or to show good cause at a hearing why they are not so entitled. In a third cause of action, FUPOA sought declaratory relief as to the alleged duty of the Regents to issue retired identification cards and concealed weapons endorsements to DDI recipients or to hold good cause hearings. The Regents filed an answer, and the parties filed additional pleadings and declarations, including the declaration of Andrew Parker, "the lead Benefits Analyst for the University of California's Disability Income program throughout the entire University of California."
After a hearing on the petition, the trial court took the matter under submission and issued a written decision denying the petition. The trial court concluded that appellants had not shown that the Regents is under a clear, present, and ministerial duty to issue the relief sought. Judgment was entered and this appeal followed.
We agree with the Regents and the trial court that appellants have shown no clear duty to act on the part of the Regents.
As the court set forth in Bergeron v. Department of Health Services (1999) 71 Cal.App.4th 17, 21-22 [83 Cal.Rptr.2d 481]: "Section 1085 of the Code of Civil Procedure authorizes a trial court to issue a writ of mandate to compel an act which the law specifically requires. A petitioner seeking a writ of mandate under this section is required to show the existence of two elements: a clear, present and usually ministerial duty upon the part of the respondent, and a clear, present and beneficial right belonging to the petitioner in the performance of that duty. [Citations.] Because the duty here asserted is one allegedly arising out of statute and/or constitutional guaranty, this court must engage in de novo review of the trial court's refusal to issue the writ. [Citation.]"
Jacobs and Mueller claim that they are "honorably retired" within the meaning of the Penal Code because they receive DDI, which they assert is the "functional equivalent" of the "disability retirement" referenced in section 16690. But appellants ignore the fundamental principles of the Regents' creation of its benefits system, which require a different result.
Thus, as the Regents puts it, "[w]hatever may be the meaning of the provisions of Penal Code Section 16690, this statutory authority cannot
Appellants nevertheless make six specific arguments to support their claim that they are retired peace officers, none of which has merit.
Second, appellants argue that because section 830.2, subdivision (b) defines peace officers to include "University of California Police Department," the Legislature must have intended to include university officers within the group of "retired" peace officers. It is undisputed that appellants and other members of FUPOA are, or have been, peace officers while employed by the University of California Police Departments. But, as the Regents notes, this does not aid appellants in determining whether any of them are retired for purposes of section 16690.
Fourth, seizing on dicta in Alberts, appellants argue that Jacobs and Mueller are "in a genuine bureaucratic bind" because they could not or did
Fifth, appellants argue that Gore supports their position that members receiving DDI should be considered retired. They focus on the following language in Gore: "At the point in time that an employee leaves employment, he or she falls into one of three categories — a resigned employee, a terminated employee, or a retired employee. These categories describe the manner in which the employment ended. The only persons entitled under the statute to carry a concealed and loaded weapon are retired employees...." (Gore, supra, 213 Cal.App.4th at p. 1493.)
Putting aside that Gore was not analyzing retirement under the UCRP and even assuming the Gore categories would be the only ones applicable here, appellants did not provide "any evidence to establish that they did not resign or were not terminated," as found by the trial court. The trial court ultimately found "[t]his argument by elimination is unpersuasive." As the trial court further noted, "Jacobs admits that she was `medically separated' from the University, which could be interpreted as a termination." Indeed, the records relating to Jacobs's separation from employment describe the action taken as to her employment as "Terminat[io]n," and the "Reason" specified is "Medical Separation." (Mueller's employment records no longer exist.)
Sixth, appellants argue that "[a]s in contract interpretation, how the party resisting one interpretation has operated for many years is entitled to great weight." They point out that for more than 15 years, the Regents issued retired identification cards and concealed weapons endorsements and renewals to members receiving DDI. Appellants assert that this "course of performance" is relevant to the UCRP's meaning, because the UCRP is "ambiguous."
There are multiple problems with this argument. One, appellants never made a contract claim in their operative pleading. Two, even assuming the
The judgment is affirmed. The Regents is entitled to its costs on appeal.
Chavez, J., and Goodman, J.,
All further statutory references are to the Penal Code unless otherwise indicated.