Metropolitan News-Enterprise


Friday, July 2, 2004


Page 1


S. C. Restricts Disability Retirements for Public Safety Officers

Justices Rule 5-2 That Applicant Must Show Inability to Work at Other Agencies


By DAVID WATSON, Staff Writer


Public employees seeking disability retirement must establish not only inability to perform their duties for their current employer but that they cannot do similar work for any other public employer in the state, the state Supreme Court ruled yesterday.

Affirming by a 5-2 vote a December 2002 decision by the Fourth District Court of Appeal, the high court ruled it was not enough for Anaheim Police Officer Steven W. Nolan to show that his fear of retaliation after making complaints about improper conduct by fellow officers incapacitated him from working in that department. Justice Janice Rogers Brown, writing for the court, said Nolan must also establish that he cannot perform the duties of a patrol officer—his job at the time he sought disability retirement in 1994—for any other California police agency.

Brown rejected an argument, advanced by the California Public Employees’ Retirement System in an amicus brief, that the standard would be unworkable because the duties of patrol officers vary from one jurisdiction to another.

The court also held, by a 4-3 vote, that if Nolan can make a prima facie showing that his disability prevents him from working at another agency, he would be entitled to disability retirement unless his employer can prove both that he can work elsewhere and that a comparable position is actually available to him.

Justices Ming Chin and Carlos Moreno and Chief Justice Ronald M. George concurred in Brown’s opinion. Justice Marvin Baxter dissented with respect to the burden-shifting requirement.

Justice Joyce L. Kennard, joined by Justice Kathryn M. Werdegar, argued that Nolan should be required to show only that his disability prevented him from continuing to work in the job and for the employer he had at the time of his application.

Nolan went to work for Anaheim in 1984 but encountered problems after transferring to the gang unit in 1991. He asked to return to patrol duties when an internal investigation failed to corroborate his allegations that other gang officers used excessive force on detainees.

He was himself charged with misconduct and fired in 1993, but an arbitrator ordered him reinstated. Instead he sought retirement, citing anonymous threats on his life and the publication by the president of the Anaheim Police Association of the statement “If you want your job is still here but I won’t work with you” in the association’s newsletter.

An administrative law judge denied Nolan’s disability application, but Orange Superior Court Judge William F. McDonald—citing testimony from two doctors that Nolan’s depression or anxiety made it impossible for him to work as a police officer and from a third that, while Nolan did not have a “psychiatric injury,” his fear of harm from fellow officers was “realistic”—concluded he was disabled and issued a writ of mandate.

Brown said the Fourth District’s Div. Three was right to find that McDonald applied an incorrect standard under Government Code Sec. 21156, which provides for permanent disability retirement benefits where an employee has been “incapacitated physically or mentally for the performance of his or her duties in the state service.”

She explained:

“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 P[ublic] E[mployees’] R[etirement] L[aw].”

In arguing that the rule the court adopted would not be “administrable,” Brown said, PERS was setting up a “straw man.”

“Doubtless,” she conceded, “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?”

She added:

“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.”

Brown noted Sec. 20001 of the PERL says that the law is intended to avoid “hardship or prejudice” to disabled employees.

“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,” Brown wrote.  “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. By similar positions, we mean patrol officer positions with reasonably comparable pay, benefits, and promotional opportunities.”

Baxter called the majority’s desire to avoid penalizing Nolan for whistleblowing “understandable,” but argued there was no legitimate statutory basis for the burden-shifting rule it adopted.

“The statutes nowhere intimate that a disability pension is available to an officer who has a general physical and mental ability to perform, but simply cannot secure a position,” he declared. “Unemployability is not the same thing as incapacity. The disability retirement system is not an unemployment insurance system.”

Baxter said Sec. 20001 was the majority’s “sole support for the ‘available positions’ theory it invents,” and commented:

“Section 20001 affords no license to carve out a ‘hardship or prejudice’ exception to the statutory requirement that a disability retiree be ‘incapacitated’ by job-related injury.”

The majority’s standard will pose “numerous complications of proof” and invite abuse, Baxter warned.

“The concern arises that an officer whose difficulties with coworkers have made it psychologically impossible to continue in that agency, but not elsewhere, could receive lifetime disability benefits simply on evidence that other agencies would not wish to hire him, or that the job market was full,” he said.

Kennard accused Brown of quoting selectively from the statutory language defining “state service” to support the majority’s position.

“Section 20069 defines state service as ‘service rendered as an employee or officer...of the state, the university, a school employer, or a contracting agency, for compensation, and only while he or she is receiving compensation from that employer,’ she observed, adding:

“The majority tellingly deletes the final three words from this sentence, thus altering the statutory meaning.”

She argued:

“[S]tate service, as applied to an employee of an agency that has contracted for PERS coverage, pertains to the service for which the employee is paid by a particular agency.”

That view is consistent with the longstanding interpretation of the act by PERS and the court should defer to the agency’s expertise, Kennard said.

The case is Nolan v. City of Anaheim, 04 S.O.S. 3368.


Copyright 2004, Metropolitan News Company