SKAGGS v. CITY OF LOS ANGELES

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District Court of Appeal, Second District, Division 2, California.

SKAGGS v. CITY OF LOS ANGELES et al.*

Civ. 19960.

Decided: April 22, 1954

Roger Arnebergh, City Atty., Bourke Jones and John J. Tully, Jr., Asst. City Attys., Los Angeles, for defendants, appellants and respondents. Morris Lavine, Los Angeles, for plaintiff, respondent and appellant.

Defendants appeal from a judgment in favor of plaintiff in an action for a writ of mandate to require defendants to pay plaintiff a pension for services rendered as a policeman. There is also a cross-appeal by plaintiff whereby he seeks to have it declared that he was entitled to a pension from July 9, 1945 instead of from February 16, 1951, the date fixed by the trial court.

The stipulated facts are these:

(1) On April 1, 1925, plaintiff was duly and regularly sworn in as a police officer of the City of Los Angeles and commenced his duties on said date and was continuously employed as such officer until July 5, 1945.

(2) On April 1, 1945, plaintiff completed 20 years of aggregate service in the police department, and on said date became eligible to retire on a service pension as a Sergeant of Police.

(3) On July 4, 1945, he was arrested on suspicion of having committed bribery on July 3, 1945.

(4) On July 5, 1945, plaintiff was relieved from duty by the Chief of Police who on said date filed against him charges of conduct unbecoming an officer, which was designated as Cause I and consisted of five counts, as follows:

‘Count 1. In that you, on or about July 1, 1945, offered for a sum of money to influence your action and/or that to be taken by others with regard to charges against one Kelly Petillo.

‘Count 2. In that you, on or about July 1, 1945, represented to one Kelly Petillo that you could, for a sum of money, influence favorably to Mr. Petillo the action to be taken in charges then pending against Mr. Petillo.

‘Count 3. In that you, on or about July 2, 1945, offered, for a sum of money, to influence your action and/or that to be taken by others with regard to charges against one Kelly Petillo.

‘Count 4. In that you, on or about July 2, 1945, represented to one Kelly Petillo that you could, for a sum of money, influence favorably to Mr. Petillo the action to be taken in charges then pending against Mr. Petillo.

‘Count 5. In that you, on or about July 3, 1945, accepted the sum of Five Hundred Dollars from Kelly Petillo upon an agreement or an understanding that you would influence or attempt to influence the official action to be taken with regard to charges then pending against Mr. Petillo.’

(5) July 9, 1945, plaintiff filed his application with the Chief of Police for a hearing before and decision by the Board of Rights on said charges.

(6) July 9, 1945, plaintiff applied to the Board of Pension Commissioners for retirement upon service pension.

(7) In the month of April, 1946, plaintiff was convicted of bribery by a jury in the superior court based upon the same matters set out in the charges filed by the Chief of Police as specified in paragraph (4), supra. He thereafter gave notice of appeal from such judgment.

(8) July 23, 1946, the Board of Rights having conducted a hearing on or about said date upon the charges filed against plaintiff, and having before it the conviction in the criminal case, found him guilty of Cause I, Count 2, Cause I, Count 4, and Cause I, Count 5, and prescribed as penalty that plaintiff be removed from his position in the Police department.

(9) On July 24, 1946, pursuant to the certified order of the Board of Rights, the Chief of Police executed the order of removal of plaintiff from his position in the police department, declaring it effective as of July 5, 1945.

(10) May 29, 1947, the District Court of Appeal, People v. Skaggs, 80 Cal.App.2d 83, 181 P.2d 390, reversed the conviction of plaintiff for bribery referred to in paragraph 7, supra, and ordered a new trial.

(11) August 12, 1947, plaintiff was, upon his new trial for bribery, acquitted in the superior court.

(12) September 30, 1947, the Chief of Police denied plaintiff's request to be reheard on the cause of his removal.

(13) January 6, 1948, the District Court of Appeal denied plaintiff a writ of mandate to compel his reinstatement as a police officer and the payment of salaries from the date of his dismissal and, on January 29, 1948, his petition for rehearing was denied, and on March 4, 1948, his petition for hearing in the Supreme Court was denied. (See Skaggs v. Horrall, 83 Cal.App.2d 424, 188 P.2d 774.)

(14) February 24, 1948, plaintiff's application to the Board of Pension Commissioners for retirement on service pension was denied.

(15) February 16, 1951, plaintiff filed with the City Clerk and with the Board of Pension Commissioners a claim for $8,167.97, plus interest at the rate of 7 percent per annum, and for such other sums as may be accumulated, and to have monthly payments in sums fixed by the City Charter continue during the life of plaintiff.

This is the sole question necessary for us to determine:

Was plaintiff an employee of the police department upon the date he filed his application for a service pension?

No. Under the italicized portion of the stipulated facts it appears that on July 24, 1946, pursuant to the certified order of the Board of Rights, the Chief of Police executed an order of removal of plaintiff from his position as a police officer, declaring it to be effective as of July 5, 1945.

Section 202 of the City Charter, subdivision (14) which was applicable to plaintiff's application, reads: ‘In any case of penal suspension or removal prescribed by the Board of Rights (or by the Chief of Police in case no hearing is had before a Board of Rights) the time of such suspension shall be computed from the first day such officer or employee was so suspended or relieved from duty pending hearing before and decision by the Board of Rights, and such removal shall relate back to and be effective as of the date of such relief from duty pending hearing before and decision by the Board of Rights.’

It thus appears that plaintiff ceased to be an employee of the police department as of July 5, 1945, which was four days before July 9, 1945, the date on which he filed an application with the Board of Pension Commissioners for retirement upon a service pension. Hence he was not an employee of the police department at the time he filed his application for a pension and the trial court improperly allowed him a pension.

There is no merit in plaintiff's contention that he had a vested and indefeasible right to a pension on July 9, 1945, the date he applied to the Board of Pension Commissioners for retirement upon service pension. It is the law that the filing of an application by a police officer for retirement on a pension does not ipso facto retire the applicant, and where an order of retirement has not been made prior to the filing of charges in proceedings subsequently commenced, his dismissal defeats his right to a pension. The rule is accurately stated by Mr. Justice Ward in MacIntyre v. Retirement Board of City & County of San Francisco, (hearing denied by the Supreme Court) 42 Cal.App.2d 734, 736[1], 109 P.2d 962, 964, thus:

‘Without regard to the time of the vesting of pension rights, it is an implied condition of employment, and hence a condition of such vesting that the duties of the employee shall have been faithfully performed; it is immaterial whether the proper authorities discover the misconduct and file charges before or after the application for a pension so long as the charges are filed before an order is made by the retirement board. The filing of the application does not ipso facto retire the applicant. It is necessary that an order of retirement be duly made. Up to that time the police officer, whether under suspension or in actual service, is under the control and jurisdiction of the police commission. If, prior to an order of the retirement board, he is dismissed upon charges of conduct unbecoming an officer, he is not entitled to ‘a pension’ as that term is used in the charter.'

The foregoing rule is applicable to the facts in the instant case. Plaintiff's dismissal from the police department for conduct unbecoming an officer became effective four days before his application for retirement was filed, and several years before his application for a service pension was acted upon and denied by the Board of Pension Commissioners.

In view of our conclusion it is unnecessary to consider the point argued by counsel for plaintiff in his cross-appeal that plaintiff should have been allowed a pension from July 9, 1945, instead of February 16, 1951.

The judgment is reversed with directions to the trial court to enter a judgment denying plaintiff any relief.

McCOMB, Justice.

MOORE, P. J., and FOX, J., concur.