RUST v. CITY OF VALLEJO

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Court of Appeal, First District, Division 4, California.

Clarence E. RUST, Plaintiff and Appellant, v. CITY OF VALLEJO et al., Defendants and Respondents.

No. A040458.

Decided: November 13, 1989

Duane W. Reno, Davis, Reno & Courtney, San Francisco, for plaintiff and appellant. John M. Powers, City Atty., City of Vallejo, Vallejo, Michael H. Roush, Pleasanton, for defendants and respondents. Marsha S. Berzon, Michael Rubin, Gay C. Danforth, Altshuler & Berzon, San Francisco, for amicus curiae in support of plaintiff and appellant. John W. Witt, City Atty., Ronald L. Johnson, Asst. City Atty., John M. Kaheny, Chief Deputy City Atty., Richard L. Pinckard, Deputy City Atty., San Diego, for amicus curiae in support of defendants and respondents.

This appeal questions the propriety of requiring a retired police officer to undergo a polygraph examination as a condition for reinstatement.   Clarence E. Rust (appellant) appeals from the judgment denying his petition for a writ of mandate directing the City of Vallejo (City) to immediately reinstate him as a police lieutenant.   We affirm.

FACTS

Appellant was first employed as a police officer for the City in 1963.   In 1968, he was promoted to sergeant, and in 1977, he became a lieutenant.   In December 1980, he sought disability retirement because of chronic back problems resulting from injuries sustained in the course of his employment.   Appellant's application for disability retirement was granted and he was retired on December 13, 1980.

On October 12, 1983, appellant applied to the City for reinstatement from his disability retirement.   On December 5, 1983, the City Manager denied appellant's application for reinstatement on the basis that medical evidence showed that appellant was “substantially precluded from performing the duties of a police lieutenant.”   Pursuant to the City's Administrative Rule 2.14, appellant appealed the City Manager's decision.   Following an evidentiary hearing in January, 1985, the administrative law judge rendered a proposed decision granting appellant's application for reinstatement.   On February 25, 1985, the City Manager adopted the decision of the administrative law judge with certain exceptions and granted appellant's application for reinstatement from disability retirement “[s]ubject to the City's charter, ordinances, rules and regulations and/or labor agreements which pertain to this matter ․”  On the same day, he advised appellant's attorney by letter that there was no current vacancy in the rank of lieutenant, that there was no provision in the City's civil service rules, labor agreements or personnel ordinances permitting the reinstatement of a lieutenant who was formerly retired on disability and that assuming a vacancy, appellant would be required to undergo a comprehensive background investigation consistent with that given to new hires.   The City Manager further stated that he had information that appellant had lied under oath in testimony before the Civil Service Commission in January 1984 and that if an investigation proved this, appellant would be disqualified from reinstatement.

During the next several months, the City sought to implement a rule change to require the Civil Service Commission to establish a list of persons eligible for reinstatement from disability retirement from which selection could be made when a vacancy arose.   It also negotiated with the Vallejo Police Officers Association (VPOA) for a revision of the labor agreement to provide for reinstatement from disability retirement.   These attempts failed.

Although there were no changes in the City's civil service rules or in its labor agreement with VPOA, on August 16, 1985, the City Manager sent appellant a letter offering to reinstate him to the position of police lieutenant.   The offer was contingent on a favorable report and recommendation following the standard POST (Peace Officers Standards and Training Commission) background investigation and medical examination and a vacancy in the lieutenant classification.   The City Manager subsequently advised appellant that a polygraph examination would be required as part of the background investigation.

By letter dated August 30, 1985, appellant accepted the offer acknowledging that he would undergo the POST background investigation and medical evaluation and stating that his understanding was that he would be required to undergo only those procedures “legally and specifically required by POST.”   Appellant also stated that “[a]cceptance of this offer will not preclude any litigation on my part over the fact that I have not already been reinstated.”

The City interpreted appellant's letter as a conditional acceptance and insisted that appellant undergo a background investigation including a polygraph examination.   Appellant maintained that the City's offer required only that he undergo the background investigation prescribed by POST;  he therefore refused to undergo a polygraph examination.   By letter dated October 17, 1985, the City Manager refused to reinstate appellant because appellant had not agreed to undergo a polygraph examination as part of the reinstatement procedure.

Appellant then filed an amended petition for writ of mandate 1 seeking immediate reinstatement as a police lieutenant and back pay.   Following a trial, the petition was denied.   This appeal followed.

DISCUSSION

1. Government Code section 21029

Appellant contends that the trial court exceeded its jurisdiction in determining that respondent made an offer of reinstatement pursuant to Government Code 2 section 21029.  Section 21029 provides in pertinent part:  “If the determination pursuant to Section 21028 is that the recipient is not so incapacitated for duty in the position held when retired for disability or in a position in the same classification or in the position with regard to which he or she has applied for reinstatement and his or her employer offers to reinstate that employee, his or her disability retirement allowance shall be canceled forthwith, and he or she shall become a member of the retirement system.” 3  He argues that the City failed to exhaust its administrative remedies on the issue of whether the City made a valid offer of reinstatement pursuant to section 21029 and that he is entitled to a hearing on that issue.

 The City was not required to exhaust any administrative remedies.   Appellant instituted this judicial proceeding seeking reinstatement as a police lieutenant.   He did not seek retirement benefits by this action or any “right, benefit, or obligation” under the Public Employees' Retirement System (PERS).  (§ 20133) 4 PERS could not grant appellant the relief sought by his petition, hence the doctrine of exhaustion of administrative remedies does not apply.  (See County of Contra Costa v. State of California (1986) 177 Cal.App.3d 62, 73, 222 Cal.Rptr. 750;  Ogo Associates v. City of Torrance (1974) 37 Cal.App.3d 830, 834, 112 Cal.Rptr. 761.)

Moreover, the record reflects that appellant invoked the jurisdiction of the trial court on the issue of whether the City tendered a valid offer of reinstatement.   In his amended petition, appellant alleged that the City Manager made an offer of reinstatement by letter dated August 16, 1985.   The letter was attached as an exhibit to the petition and incorporated therein.   As the letter provided the basis for appellant's cause of action, appellant adopted the letter's recitals of fact as allegations of his petition by its incorporation in the petition.  (Holly Sugar Corp. v. Johnson (1941) 18 Cal.2d 218, 225–226, 115 P.2d 8;  Byrne v. Harvey (1962) 211 Cal.App.2d 92, 103, 27 Cal.Rptr. 110.)   The letter specifically stated that the offer of reinstatement was made “[p]ursuant to Government Code § 21029.”   The City did not deny this allegation in its answer and the trial court adopted this language as its finding in its statement of decision.5

While it was uncontroverted below that an offer of reinstatement was made, the question placed before the trial court was whether the City could place conditions on that offer.6  Appellant argues that because the offer was conditional on a vacancy in the classification of police lieutenant, it contravened section 21029 since the legislative history of that section indicates the intent to provide immediate reinstatement when a determination is made that the recipient of a disability allowance is no longer incapacitated for duty.   This argument lacks merit.

In construing the language of section 21029, we are bound by well settled rules of statutory construction.   The fundamental rule of statutory construction requires that the court ascertain the intent of the legislative body.  (Terminal Plaza Corp. v. City and County of San Francisco (1986) 186 Cal.App.3d 814, 826, 230 Cal.Rptr. 875.)  “An equally basic rule of statutory construction is, however, that courts are bound to give effect to statutes according to the usual, ordinary import of the language employed in framing them.”  (Rich v. State Board of Optometry (1965) 235 Cal.App.2d 591, 604, 45 Cal.Rptr. 512;  Moyer v. Workmen's Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230, 110 Cal.Rptr. 144, 514 P.2d 1224.)  “Although a court may properly rely on extrinsic aids, it should first turn to the words of the statute to determine the intent of the Legislature.”  (California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692, 698, 170 Cal.Rptr. 817, 621 P.2d 856.)  “ ‘ “If the words of the statute are clear, the court should not add to or alter them to accomplish a purpose that does not appear on the face of the statute or from its legislative history.”  (Citations)’ ”  (Terminal Plaza Corp., supra, 186 Cal.App.3d at p. 826, 230 Cal.Rptr. 875.)

 Although section 21029 provides that a disability retirement allowance is to be canceled when the recipient is no longer incapacitated and the employer offers to reinstate the recipient, nothing in the language of the statute suggests that the offer of reinstatement must be unconditional.   The clear import of the statutory language, however, does suggest that disability allowances are terminable only when following an offer of reinstatement, the recipient is reinstated to his or her former position and hence becomes “a member of the retirement system” or that the allowance is cancelable if a recipient chooses to reject the offer of reinstatement.   Obviously, a recipient of a disability allowance is not entitled to that allowance when he is no longer disabled and when he has rejected an offer to be reinstated to his former position.

The legislative history of section 21029 also supports this interpretation.   Prior to 1982, section 21029 provided that when a recipient of a disability allowance was found to be no longer incapacitated, the recipient's retirement allowance was canceled forthwith and he or she was eligible for reinstatement to duty.  (The Legislative Counsel's Digest of Assembly Bill No. 3341 (Stats. 1982 Reg.Sess.) Summary Dig., p. 569.)   The purpose of the 1982 amendment was to add as an additional condition “that the employer has offered to reinstate [the recipient] and that the recipient “be reinstated in county service pursuant to [county or district personnel] regulations.”  (Ibid.) 7

2. Administrative Rule 2.14

Appellant further contends that pursuant to City of Vallejo Administrative Rule 2.14, the City was required to reinstate him immediately upon the City Manager's decision granting his application for reinstatement.   Appellant refers to the City Manager's decision of February 25, 1985 in which the City Manager granted appellant's application for reinstatement “[s]ubject to the City's charter, ordinances, rules and regulations and/or labor agreements which pertain to this matter ․”  Because Administrative Rule 2.14 states that the City Manager's decision is “final and conclusive”, appellant contends that the City could not condition his reinstatement on conditions not set forth in the City Manager's decision.

Pursuant to section 21025, the City has the authority to determine whether a local safety member 8 is disabled for purposes of an application for disability retirement.   In Resolution No. 73–844 N.C., the City Council of the City of Vallejo delegated this responsibility to the City Manager.   Resolution No. 73–844 authorizes the City Manager to “establish and implement such procedures and regulations, including opportunity for hearing upon notice to the affected member, consistent with law, as he deems necessary or advisable for the effective discharge of the duties and responsibilities vested in him ․”  The City Manager issued Administrative Rule 2.14 in order to establish a procedure for the determination of eligibility of local safety members for disability retirement and reinstatement from disability retirement.

 Administrative Rule 2.14 sets forth the procedures governing disability retirement of the City's uniformed police and fire personnel.   It provides that applications for reinstatement from disability retirement are to be processed in the same manner as applications for disability retirement.   If the employee is dissatisfied with the City Manager's decision on the issue of disability, he is entitled to a hearing.

Contrary to appellant's argument, Administrative Rule 2.14 does not mandate that he be immediately reinstated to the position of police lieutenant upon the City Manager's decision granting his application for reinstatement.   While Administrative Rule 2.14 pertains to applications for disability retirement and reinstatement therefrom, its provisions govern solely the determination of the issue of “disability” for purposes of entitlement to disability retirement.   Other than its provision for a hearing on the issue of disability, Administrative Rule 2.14 is silent regarding any procedures for reinstatement following the City Manager's decision to reinstate an employee.

 Appellant claims that the City could not condition his reinstatement because it failed to raise the conditions as defenses during the administrative hearing.9  This claim is also without merit.   The hearing pursuant to Administrative Rule 2.14 addressed solely the issue of whether appellant's physical condition precluded him from performing the duties of a police lieutenant.   It did not address what conditions, if any, the City could impose on his reinstatement.   The City was not required to raise these issues at the hearing since they were not the subject of the dispute before the administrative law judge.

 Relying on Newman v. City of Oakland Retirement Bd. (1978) 80 Cal.App.3d 450, 145 Cal.Rptr. 628, appellant asserts that it was impermissible for the City to impose conditions on his reinstatement that were not in existence at the time of his retirement.   We disagree.

In Newman, a police officer was placed on disability retirement following an injury which impaired his ability to use his right hand.   Two years later, the city's retirement board voted to reinstate him based on a change in policy which allowed reinstatement of officers who could perform a “reasonable range of duties.”   Prior to this change, a disabled officer could be returned to active duty only if he could perform all of the regular duties of a police officer.   The court held that the change in policy violated the officer's vested pension rights.  (Newman, supra, 80 Cal.App.3d at pp. 462–463, 145 Cal.Rptr. 628.)

Newman is inapposite.   The conditions imposed on appellant's reinstatement were not part of appellant's pension contract.   The conditions did not purport to modify appellant's pension rights but to grant appellant the right to employment.   Appellant was not entitled to more.

As a retired employee, appellant had no vested contractual right to retain his prior position under the same terms and conditions.   In California, it is well settled that public employment is not held by contract, but by statute.   (Miller v. State of California (1977) 18 Cal.3d 808, 813, 135 Cal.Rptr. 386, 557 P.2d 970.)  “Nor is any vested contractual right conferred on the public employee because he occupies a civil service position since it is equally well settled that ‘[t]he terms and conditions of civil service employment are fixed by statute and not by contract.’ ”  (Id. at p. 814, 135 Cal.Rptr. 386, 557 P.2d 970.)

Here, Administrative Rule 2.14 set forth the only written procedures governing reinstatement from disability retirement.   Pursuant to that rule and after an administrative hearing on the issue of appellant's disability, the City Manager issued a decision granting appellant's application for reinstatement.   Exercising his authority under Resolution No. 73–844 N.C. to implement procedures concerning reinstatement, the City Manager conditioned appellant's reinstatement on a vacancy in appellant's classification and on the condition that appellant undergo a background investigation consistent with the type given to new hires to determine if he was suitable for reinstatement.   The trial court determined that these conditions were reasonable and we conclude that substantial evidence supports that determination.   On appeal, the trial court's findings are sustained if they are supported by substantial evidence.   (Franz v. Board of Medical Quality Assurance (1982) 31 Cal.3d 124, 135, 181 Cal.Rptr. 732, 642 P.2d 792.)

3. Polygraph Examination

Appellant contends that the City Manager violated his constitutional and civil rights by requiring that he undergo a polygraph examination as a condition of reinstatement.   He also argues that section 3307 which prohibits polygraph examinations of public safety officers should be interpreted to include a retired police officer who seeks reinstatement following a period of disability.10

In Long Beach City Employees Assn. v. City of Long Beach (1986) 41 Cal.3d 937, 227 Cal.Rptr. 90, 719 P.2d 660, the Supreme Court held that involuntary polygraph examinations infringe upon an individual's fundamental right of privacy and that the legislative classification in section 3307 that protects “public safety officers” from involuntary polygraph examinations and the classification of Labor Code section 432.2 exempting applicants for and employees of private employers from polygraph examinations denied equal protection to public employees who are not “public safety officers.”   While the court did not address the issue of whether applicants or individuals seeking reinstatement to public employment can be constitutionally compelled to submit to involuntary polygraph testing, the reasoning of the decision suggests that they can be so required.

In determining whether the employees' equal protection rights were violated, the Long Beach court placed the “burden ․ on the City to demonstrate that the classifications drawn by Labor Code section 432.2 and Government Code section 3307 are justified by a compelling governmental interest and that the distinctions drawn are necessary to further that purpose.”  (Long Beach, supra, 41 Cal.3d at p. 948, 227 Cal.Rptr. 90, 719 P.2d 660.)   The court concluded that the City of Long Beach could not justify the infringement of the employees' right to privacy based on its interests in maintaining the integrity of public service or the right of the public to an honest and impartial government because less intrusive means to investigate alleged wrongdoing were available.  (Id. at p. 952, 227 Cal.Rptr. 90, 719 P.2d 660.)

The court further held that the statutory classification of section 3307 which exempts “public safety officers” from involuntary testings was both over and under inclusive and that there was no rational relationship between it and the statutory purposes of maintaining stable employer-employee relations and preventing interruptions in critical public services.  (Long Beach, supra, 41 Cal.3d at p. 955, 227 Cal.Rptr. 90, 719 P.2d 660.)

 Appellant, as a retired police officer, does not fall within the statutory classification of “public safety officer” and hence is not protected by section 3307.   The term “public safety officer” is defined in section 3301 to include “all peace officers specified in Sections 830.1, 830.2, 830.3, 830.31 except subdivision (f), 830.4 except subdivision (f) and 830.5 of the Penal Code.”   Appellant is not currently a police officer nor is he employed in any of the other law enforcement capacities set forth in Penal Code sections 830.1, 830.2, 830.3, or 830.31.11  As he seeks reinstatement to public employment, he further is not protected by the statutory classification of Labor Code section 432.2 which protects applicants for private employment.   Because polygraph testing intrudes upon appellant's fundamental right to privacy, however, the City here as in Long Beach must also demonstrate that the legislative classifications which exempt appellant are justified by a compelling governmental interest and “that the distinctions drawn are necessary to further that purpose.”  (Long Beach, supra, at p. 948, 227 Cal.Rptr. 90, 719 P.2d 660.)

 The City has met their burden here.   The City urges that polygraph testing is necessary to protect public safety and to ensure that applicants for police officer positions are of the highest integrity and moral character.   We agree that the City does have a compelling governmental interest in conducting a comprehensive background investigation and in utilizing the polygraph examination to protect the public from applicants who may be attempting to conceal undetected criminal activity, racial prejudice, sexual aberrance or violent tendencies.   Indeed, the Long Beach court recognized that “ ‘ “[police] officers are the guardians of the peace and security of the community, and the efficiency of our whole system, designed for the purpose of maintaining law and order, depends upon the extent to which such officers perform their duties and are faithful to the trust reposed in them ․”  (Citations.)’ ”  (Long Beach, supra, 41 Cal.3d at p. 954, 227 Cal.Rptr. 90, 719 P.2d 660.)

While the Legislature has omitted applicants for and those individuals seeking reinstatement to police officer positions from its statutory scheme protecting private and public employees from polygraph examinations, the distinction drawn is necessary to further the City's interest in protecting the public.   Police officers hold a “ ‘peculiar and delicate position’ ” in society.  (Long Beach, supra, 41 Cal.3d at p. 954, 227 Cal.Rptr. 90, 719 P.2d 660.)   The City's obligation of ensuring that police officers are of the highest integrity therefore outweighs any detriment suffered by an applicant who loses a job opportunity for refusing to take a polygraph test.

 For the same reasons, appellant's argument that an involuntary polygraph examination violates his right to privacy also fails.   The right to privacy is not absolute.   To determine whether the City has violated appellant's right to privacy here, we must decide “whether the City [has] demonstrated a compelling governmental interest in administering the polygraph examination[ ] to [appellant] and whether this interest could be accomplished by less intrusive means.”  (Long Beach, supra, 41 Cal.3d at p. 948, fn. 12, 227 Cal.Rptr. 90, 719 P.2d 660.)   Because we have concluded that the City's interests in public safety and in ensuring the integrity of the police department are compelling, the City need only demonstrate that its interests cannot be accomplished by less intrusive means.  (Ibid.)  The polygraph examination gives the City an unparalleled opportunity to evaluate the veracity of statements made during a background investigation.   Although its reliability has been questioned (see Long Beach, supra, 41 Cal.3d at p. 949, fn. 14, 227 Cal.Rptr. 90, 719 P.2d 660), “ ‘both proponents and opponents maintain that such testing can distinguish between truthful and deceptive persons with an accuracy greater than chance.’ ”  (Anderson v. City of Philadelphia (3rd Cir.1988) 845 F.2d 1216, 1223.)   Given a police officer's unique status in society, compulsory polygraph testing of applicants for police officer positions is justified.  “[A] member of the police force must be above suspicion of violation of the very laws he is sworn and empowered to enforce.”  (McCain v. Sheridan (1958) 160 Cal.App.2d 174, 177, 324 P.2d 923.)

Preemployment polygraph screening is widely used by intelligence and law enforcement agencies throughout the nation.   Numerous jurisdictions have upheld the use of polygraphs for internal investigations of police officers.   (See Anderson v. City of Philadelphia, supra, 845 F.2d 1216 [use of polygraph for preemployment screening does not violate equal protection or substantive due process];  Eshelman v. Blubaum 114 Ariz. 376, 560 P.2d 1283, 1285 (1977) [“compulsory use of the polygraph during departmental investigations is consistent with the maintenance of a police or sheriff's department that is of the highest integrity and beyond suspicion”];  Dolan v. Kelly, 76 Misc.2d 151, 348 N.Y.S.2d 478 (1973) [police officer may be compelled to submit to polygraph during departmental investigation];  Richardson v. City of Pasadena, 500 S.W.2d 175, 177 (Tex.Civ.App.1973) [“By accepting public employment as a police officer [appellant] subordinated his right of privacy as a private citizen to the superior right of the public to an efficient and credible police department”], rev. on other grounds, (Tex.1974) 513 S.W.2d 1;  Roux v. New Orleans Police Department, 223 So.2d 905 (La.App.1969) [police officer who was dismissed for refusing to take polygraph was not denied due process] ).

Moreover, of the 23 states and the District of Columbia which have enacted legislation restricting the use of polygraph testing in pre-employment screening or as a condition of continued employment, 14 states specifically permit law enforcement agencies to conduct polygraph examinations of applicants for police officer positions.  (Alaska Stat. § 23.10.037 (1984);  Conn.Gen.Stat.Ann. § 31–51g (West 1987);  Del.Code Ann.Tit. 19, § 704 (Supp.1988);  Haw.Rev.Stat. § 378–26 to 378–27.3 (1985);  Idaho Code §§ 44–903 to 44–904 (1977);  Iowa Code Ann. § 730.4 (West Supp.1989);  Me.Rev.Stat.Ann. tit. 32, § 7166 (1988);  Md.Ann.Code art. 100, § 95 (Supp.1988);  Neb.Rev.Stat. § 23–1737 (1987);  Pa.Cons.Stat.Ann. tit. 18, § 7321 (Purdon 1983);  R.I.Gen.Laws §§ 28–6.1–1 to 28–6.1–4 (Supp.1988);  Vt.Stat.Ann. tit. 21, § 494a–494b (1987);  Wash.Rev.Code §§ 49.44.120 to 49.44.130 (West Supp.1989);  W.Va.Code § 21–5–5a to 21–5–5b (1985)).12  Several commentators have also recognized that interests of effective pre-employment screening of law enforcement officers may outweigh the right to privacy.  (See, e.g. Note, Long Beach City Employees Association v. City of Long Beach:  Truth or Consequences? (1987) 18 Pacific L.J. 407, 426 [public interest in ensuring that persons with integrity are employed in public service positions may justify polygraph testing of applicants for public employment];  Gardner, Wiretapping the Mind:  A Call to Regulate Truth Verification in Employment (1984) 21 San Diego L.Rev. 295, 321–22, fn. 190 [interests of public safety outweigh privacy interests of employees to the extent of investigating criminal activity];  Note, Employer–Employee Relations—The Employee Polygraph Protection Act:  Eliminating Polygraph Testing in Private Employment is not the Answer (1987) 11 So.Ill.U.L.J. 355, 373 [health and safety concerns justify the use of the polygraph].)   This consensus supports our conclusion that the City may constitutionally require polygraph testing in pre-employment screening of applicants for employment or reinstatement to police officer positions.

4. Fair Employment and Housing Act

 Finally, appellant argues that his rights under the California Fair Employment and Housing Act were violated because the City did not reinstate him in July 1983 when he informed the City that he was no longer disabled.   This contention lacks merit.

Appellant relies on Johnson v. Civil Service Com. (1984) 153 Cal.App.3d 585, 200 Cal.Rptr. 289.   There, the court held that substantial evidence did not support the civil service commission's decision rejecting the plaintiff as a firefighter on the basis that his spinal condition could result in an increased risk of a long disability leave.   The court recognized that an applicant for public employment has a statutory right to be free from employment discrimination on the basis of a physical handicap or medical condition (Gov.Code, § 12940, subd. (a).)  (Id. at p. 588, 200 Cal.Rptr. 289.)  Johnson, however, is distinguishable.

At the time appellant sought reinstatement, conflicting evidence existed regarding his physical ability to perform the duties of a police lieutenant.   Appellant presented a letter from Dr. Jenkins at the time of his application for reinstatement which indicated that appellant was not suffering from his previous back problem but acknowledged that appellant could experience “further difficulty” if he returned to work.   Dr. Jenkin's letter did not reconcile his prior medical evaluation of appellant which reported that appellant's condition was “permanent and stationary” and that it precluded him from performing the duties of a police officer.

Moreover, in the course of his employment with the City, appellant was treated by a number of physicians for his back disorder and his condition interfered with his ability to do his work.   Hence, unlike the plaintiff in Johnson, there was substantial evidence that appellant had experienced back problems and that his condition could interfere with his ability to perform the duties of a police lieutenant.   The Johnson court sought to avoid the risk that the plaintiff might suffer an injury which would require a longer disability period than an individual without the plaintiff's back disorder.  (Johnson v. Civil Service Com., supra, 153 Cal.App.3d at pp. 589–590, 200 Cal.Rptr. 289.)   Here, by contrast, appellant had already suffered numerous injuries resulting in his disability retirement and the wealth of the medical evidence before the City indicated that the disability was permanent.   On this record, there was substantial evidence to support the City's initial decision to decline appellant's application for reinstatement.

DISPOSITION

The judgment is affirmed.

I respectfully dissent from the majority's willingness to treat Mr. Rust as if he were a first-time applicant seeking a job as a police officer with the City of Vallejo.   Whatever the merits of permitting polygraph examinations of new applicants for public safety positions, those reasons simply do not apply to Mr. Rust.   Mr. Rust served as a Vallejo police officer for 17 years before he was retired on medical disability.   He has, therefore, spent more time working for the city than the collective years served on the appellate bench by the members of this panel.   During those years of service surely the Vallejo Police Department has come to know a great deal about Mr. Rust's character.   It beggars the imagination to suppose that a one-time polygraph examination of Mr. Rust will ferret out some character defect he successfully concealed from his fellow officers for 17 years.

I am also persuaded that the statutory prohibition of involuntary polygraph exams of public safety officers bars the city's effort to require him to take a polygraph.

The majority contend that since Mr. Rust is on disability retirement he is no longer a “police officer of a city” within the meaning of Penal Code section 830.1, subdivision (a).   Accordingly, they argue, Government Code section 3307's ban on involuntary testing of public safety officers does not protect him.

That reading of the statutory scheme thwarts, rather than advances, the Legislature's intent.   The ban on polygraph testing of public safety officers was enacted as part of the Public Safety Officers Procedural Bill of Rights Act.  (Gov.Code, § 3300 et seq.)   That act contains the express statement that “[t]he Legislature further finds and declares that effective law enforcement depends upon the maintenance of stable employer-employee relations, between public safety employees and their employers.”  (Gov.Code, § 3301.)

If labor harmony was the Legislature's purpose in prohibiting involuntary polygraph testing (Long Beach City Employees Assn. v. City of Long Beach (1986) 41 Cal.3d 937, 954, 227 Cal.Rptr. 90, 719 P.2d 660;  Civil Service Assn. v. Civil Service Com. (1983) 139 Cal.App.3d 449, 457, 188 Cal.Rptr. 806), it makes little sense to exclude Mr. Rust and other disability retirees from that protective ban.   Every officer who reports for duty must know that on this shift or maybe the next he or she runs the risk of being seriously injured and consequently forced to retire due to disability.   It is implausible that those serving officers do not care deeply about the treatment of disability retirees, and about the imposition of involuntary polygraph tests on recovered officers who seek reinstatement.   In some professions the treatment of disability retirees may not be a burning labor issue, but I doubt that is the case among public safety officers.   Therefore in accordance with the expressed purpose of the legislative scheme I construe Penal Code section 830.1 when applied in the context of Government Code sections 3301 and 3307 to include formerly disabled officers seeking reinstatement.

Although the statutory scheme seems to define quite precisely who is a public safety officer (Pen.Code, § 830.1) and thus protected from involuntary polygraph testing (Gov.Code, §§ 3301, 3307), the definitions of section 830.1 are not as clear-cut as they seem to be, at least when they are incorporated into another statutory framework.   I find precedent for my approach in People v. Corey (1978) 21 Cal.3d 738, 147 Cal.Rptr. 639, 581 P.2d 644.   In Corey our Supreme Court concluded that although an off-duty municipal police officer clearly was a peace officer within the definitions of Penal Code section 830.1 as “any police officer of a city,” such an officer was not a peace officer for the purpose of the crime of battery upon a peace officer in performance of his duty.

When Corey was decided Penal Code section 243 defined the crime of battery on a peace officer by incorporating the peace officer definitions set forth in Penal Code section 830.1.  (People v. Corey, supra, 21 Cal.3d at p. 742, 147 Cal.Rptr. 639, 581 P.2d 644.)   In that respect the statutory scheme in Corey is directly analogous to this one where the Government Code likewise incorporates the peace officer definitions of Penal Code section 830.1.   Just as the Corey court concluded that those Penal Code definitions should be read narrowly for the purpose of defining the crime of battery on an officer, I would read those definitions broadly for the purpose of defining who is protected from involuntary polygraph testing.

Whatever compelling interest the public has in ensuring that its candidates for police positions are honest and of upstanding moral character, there is an equally strong public interest in valuing and supporting the rights of those officers who serve blamelessly and are injured in the course of their duties.   Justice is indeed blind if her scales are not tipped by the weight of 17 years of loyal service.

I would reverse the judgment and direct the trial court to issue a writ of mandate directing Vallejo to drop its requirement that Mr. Rust take a polygraph examination as a condition to his reinstatement.

FOOTNOTES

1.   Appellant had previously filed, but not served, a petition for writ of mandate directing that the City reinstate him based on the City Manager's decision of February 25, 1985.

FN2. All further statutory references are to the Government Code, unless otherwise indicated..  FN2. All further statutory references are to the Government Code, unless otherwise indicated.

3.   Section 21028 authorizes a medical examination of a recipient of disability allowance if the recipient is under the minimum age for voluntary retirement and upon his or her application for reinstatement.

4.   Section 20133 provides in relevant part:  “The board (of administration of the Public Employees' Retirement System) may, in its discretion, hold a hearing for the purpose of determining any question presented to it involving any right, benefit, or obligation of a person under this part ․”

5.   Specifically, the trial court found that “on August 16, 1985, Lynch advised Rust (pursuant to Government Code Section 21029) that Rust would be reinstated to the position of lieutenant on certain conditions ․”

6.   Another issue not addressed below was whether the City could seek cancellation of appellant's disability retirement allowance upon appellant's rejection of this conditional offer.   This issue is the subject of an administrative hearing pending before the Board of Administration of PERS.   As the City concedes, appellant has a vested right to his disability retirement allowance and is entitled to a hearing before that allowance may be terminated.  (Petrillo v. Bay Area Rapid Transit Dist. (1988) 197 Cal.App.3d 798, 807, 243 Cal.Rptr. 74.)

7.   PERS' interpretation of the statute is consistent with this view.   PERS, the agency charged with enforcing section 21029, (see §§ 20124, 20133) believes that “[s]ection 21029 should be invoked basically, to cancel a member's disability retirement allowance when he or she has been put back to work, or has been offered re-employment;  in essence, trading a retirement allowance for salary.”  (Letter from Sandra D. Lund (Assistant Executive Officer Benefit Services—PERS) to Michael H. Roush (January 11, 1988.)   When an administrative agency is charged with enforcing a particular statute, its interpretation of the statute is accorded great weight and should be followed unless clearly erroneous.   (Judson Steel Corp. v. Workers' Comp. Appeals Bd. (1978) 22 Cal.3d 658, 668, 150 Cal.Rptr. 250, 586 P.2d 564.)

8.   “ ‘Local Safety member’ includes all local policemen, firemen, safety officers, and county peace officers employed by a contracting agency who have by contract been included within the [PERS] system.”  (§ 20019).

9.   We note that other than the condition of the polygraph examination, appellant does not question the validity of the City's other conditions of reinstatement.   The record discloses that there was no vacancy in the position of police lieutenant at the time of appellant's application for reinstatement and that the City sought to change existing Civil Service Commission rules and the VPOA labor agreement to provide for reinstatement from disability retirement.

10.   Government Code section 3307 provides:  “No public safety officer shall be compelled to submit to a polygraph examination against his will.   No disciplinary action or other recrimination shall be taken against a public safety officer refusing to submit to a polygraph examination, nor shall any comment be entered anywhere in the investigator's notes or anywhere else that the public safety officer refused to take a polygraph examination, nor shall any testimony or evidence be admissible at a subsequent hearing, trial or proceeding, judicial or administrative, to the effect that the public safety officer refused to take a polygraph examination.”

11.   Contrary to the express language of section 3301 which defines the public safety officers entitled to the protections of section 3307, the dissent would add words to the statute in order to include appellant among those within its ambit.   It is a well settled rule of statutory construction, however, that this court has no power to rewrite a statute to make it conform to a presumed intention which is not expressed.   (Terminal Plaza Corp. v. City and County of San Francisco, supra, 186 Cal.App.3d at p. 826, 230 Cal.Rptr. 875.)

12.   Several other states license polygraph examiners but permit law enforcement agencies to utilize polygraph testing in their investigations.  (See, e.g. Kansas Stat.Ann. § 75–744 (Supp.1988);  Okla.Stat.Ann.tit. 59, §§ 1451 et seq.  (West 1989);  and Nev.Rev.Stat.Ann. §§ 648.183 to 648.210 (1986).   We also note that in 1988, the Employee Polygraph Protection Act was enacted to prohibit private employers from requiring prospective employees or employees from taking a polygraph examination as a condition of employment.  (29 U.S.C. §§ 2001–2009.)   The Act excludes federal, state and local governmental agencies, government contractors engaged “in the performance of any intelligence or counterintelligence function” as well as private security services who guard a variety of operations having a significant impact on the public's health or safety or manufacturers and distributors of controlled substances.  (See 29 U.S.C. § 2006, subds. (a), (b)(2), (e) and (f).)

PERLEY, Associate Justice.

ANDERSON, P.J., concurs.

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