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District Court of Appeal, Second District, Division 1, California.

Carl H. PEARSON, Plaintiff and Appellant, v. COUNTY OF LOS ANGELES, a public corporation; H. L. Byram, Walter G. Gastil, M. J. Brock, Jr., Gladys Johnson, E. C. Spruill, A. L. Thomas, C. H. Thurber, Members of the Board of Retirement of the Los Angeles County Employees' Retirement Association; Harry Albert, Hayden F. Jones, Winston W. Crouch, Members of the Board of Civil Service Commissioners of the County of Los Angeles; and E. W. Biscailuz, Sheriff of Los Angeles County, Defendants and Respondents.*

Civ. 22078.

Decided: April 30, 1957

S. V. O. Prichard, Hollywood, for appellant. Harold W. Kennedy, County Counsel, Edward H. Gaylord and Andrew O. Porter, Deputies County Counsel, Los Angeles, for respondents.

The petitioner seeks to retire as a member of the Peace Officers' Retirement Association. This is an appeal from a judgment denying an alternative writ of mandate to compel the Civil Service Commission of the County of Los Angeles either to conduct a hearing on the Sheriff's charges against him or to dismiss them.

The petitioner Pearson was born July 24, 1895, and became fifty-five years of age on July 23, 1951. He was actively employed in the office of the Sheriff of the County of Los Angeles as a deputy sheriff from December 24, 1924, until December 13, 1950, when he was suspended for thirty days. The suspension just mentioned was because of a failure to make a certain report. Until December 16, 1950, he was a member of the Peace Officers' Retirement System and made all of the required contributions thereto. The suspension was apparently for the reason that petitioner had on Sunday, December 10, 1950, in the evening, visited at the office of an attorney, Samuel Rummel, in Los Angeles, and discussed a subject not in line or connected with his official duties in the Sheriff's department; that the next morning petitioner learned that Rummel had been murdered the night before and throughout that day, namely Monday, December 11, until that might, he did not report his visit to Rummel's office to his superior officers even though he was aware that the matter was under intensive police investigation; that by failing to so report he unnecessarily withheld for many hours information which was the object of inquiry which constituted neglect of duty.

On December 18, 1950, the Sheriff filed charges against petitioner, seeking his discharge. A copy of the charge was served upon the petitioner on December 19, 1950. An answer was filed to such charges on December 28, 1950, wherein a hearing was requested. The charge generally was to the effect that the petitioner, about 12:30 o'clock a. m., December 12, 1950, made certain statements to Los Angeles police officers, namely Thad Brown and other police officers, with reference to events which occurred shortly prior to the murder of Rummel which were false, a fact which was later admitted by the petitioner.

Petitioner was indicated by the grand jury for violating the provisions of section 6200 of the Government Code, which provisions generally have to do with the interference or removal of public records.

Pearson thereafter requested that the hearing on the charges before the Commission be postponed until after the determination of the criminal charge. On about February 8, 1951, the Civil Service Commission made an order that the matter of the hearing go ‘off calendar’ until the Commission was notified by Pearson of the disposition of the criminal charge. Petitioner was convicted on July 16, 1951, of the felony charge set forth above, in the superior court. On August 8, 1951, the Commission advised him that on February 6th, it had ordered the matter of his hearing ‘off calendar’ until notified by him of the disposition of the criminal charge.

On September 4, 1951, proceedings were suspended in the superior court and petitioner was placed on probation for three years. He thereafter appealed to the District Court of Appeal, second appellate district, which affirmed his conviction. People v. Pearson, 111 Cal.App.2d 9, 244 P.2d 35 [May 9, 1952]. On May 20, 1952, a petition for rehearing was denied, and on July 9, 1952, the remittitur was filed in the office of the clerk of the superior court. On April 16, 1953, petitioner having complied with the probationary terms, the cause was dismissed and the criminal charges expunged from the record.

On September 11, 1951, the petitioner directed a letter to the County Counsel of Los Angeles county wherein he stated that the charges had been filed, that he had made an answer thereto and that the matter was ‘off calendar’ pending the disposition of the criminal charge. He further stated that he had been informed that unless the hearing was conducted within a year his right to reinstatement would be gone and that it appeared that the determination of the criminal charge would not be completed within the year, and asked the County Counsel to please advise him in the premises. On September 19, 1951, a deputy county counsel replied to the letter and stated that he had taken the matter up with a Mr. Porter, who advised the Civil Service Commission, and Porter had informed the writer of the letter that there was no rule requiring hearings on discharge to be held within a year of the discharge; that such a hearing could be held at any time. Petitioner was also told in the letter that the Commission would not set the date of hearing until the matter was brought to their attention by either the petitioner or the Sheriff.

On May 19, 1953, about a year after the affirmance of the judgment of conviction by the District Court of Appeal, the petitioner requested that the charges against him be restored to the calendar and that a hearing be conducted thereon. On May 20, 1953, the Commission ordered that the request be denied because of the unreasonable lapse of time since the original request for hearing was made.

Thereafter, on June 22, 1953, the petitioner filed his application for retirement, to be effective as of July 24, 1951.

A petition for a rehearing on the order made regarding his appliation to have a hearing conducted upon the charges against him was denied on July 2, 1953, because the request for a hearing was not made within a reasonable time and that his right to any further proceedings before the Commission were lost and the discharge was now final.

On July 13, 1953, the Retirement Board of Los Angeles County Retirement System denied the application of the petitioner for retirement. March 16, 1954, the petitioner filed a mandamus action (No. 626,090). The facts at the hearing on that proceeding were stipulated to and the writ was denied on or about June 28, 1955, ‘without prejudice’. Thereafter, the petitioner requested both the Sheriff and the Civil Service Commission to proceed, and they refused to do so. He then requested of the Sheriff that he be restored to his position as a deputy sheriff in order that he might immediately retire. The County Counsel advised that it was the position of the respondent that no prosecution of the charges was necessary and that the petitioner had been discharged. Petitioner states that more than five years have now elapsed and the authorities have not prosecuted to trial the dismissal proceedings, and that by an analogy to section 583 of the Code of Civil Procedure the dismissal of those proceedings is mandatory. The present proceeding is to compel the proper authorities to receive from this petitioner the necessary monies to make him fully paid up for rights and thereupon to retire him and to pay him the pension to which he claims he is entitled, and that with respect to the dismissal charges, same be dismissed.

Appellant contends that the pension statute, Government Code, §§ 31450–31822, became a part of the contemplated compensation for the services which he rendered and was a part of the contract of employment; that the provisions for pensions should be liberally construed; that his right is a vested right and the fact that he was convicted of a felony has no bearing upon his right to a pension, and being convicted of a felony did not automatically discharge him from his position in the county service; that his present action is not barred by the statute of limitations; that he was not waived his right to a hearing before the Civil Service Commission and that he is fully qualified for a pension.

Respondents assert that the petition, on its face, shows that the applicant is not entitled to any relief by his action because when he was convicted of a felony on July 16, 1951, he was automatically removed from office, pursuant to sections 1028 and 1770 of the Government Code; that at the time he was fifty-five years of age, namely on July 23, 1951, he was not eligible to retire, Government Code, § 32050; further, that mandamus to the Civil Service Commission to hold a hearing is barred by the three-year statute of limitations, since appellant should have requested that the charges be restored to the calendar by July 9, 1952, and by delaying the request, he cannot extend the statute of limitations; that the appellant waived his right to a hearing before the Commission and that he forfeited his rights to retirement and to receive a pension by his own misconduct.

Section 1028 of the Government Code provides in part as follows:

‘Any person who has been convicted of a felony in this State * * * is disqualified from holding office or being employed as a peace officer of the State, county, city, city and county or other political subdivision, whether with or without compensation, and is disqualified from any office or employment by the State, county, city, city and county or other political subdivision, whether with or without compensation which confers upon the holder or employee the powers and duties of a peace officer. * * *’

Section 1770 of the Government Code provides in part as follows:

‘An office becomes vacant on the happening of any of the following events before the expiration of the term:

‘(h) His conviction of a felony or of any offense involving a violation of his official duties.’

The court, in People v. Pearson, supra, held, 111 Cal.App.2d at page 17, 244 P.2d at page 43, ‘Pearson was an officer within the contemplation of section 6200. Gov.Code, secs. 24000, 24100; * * *’. In our opinion, Pearson was an officer, and not an employee, for the purposes of the proceedings before us.

Appellant asserts that the provisions of sections 31469–31470 of the Government Code contain certain definitions, and that section 31683.1 of the Government Code provides for certain retirement rights. Counsel is correct as to what the sections contain. However, the sections referred to constitute a part of the County Employees Retirement Law. These sections do not necessarily apply to the appellant. He did not allege that he ever became a peace officer member of the County Employees' Retirement System, but did allege that he became a member of the Peace Officers' Retirement System. The provisions of Article 8.3 of the County Employees' Retirement Law did not come into existence until September 22, 1951, and only apply ‘in any County having a population not in excess of 2,000,000’. Government Code, § 31557.1.

Whatever rights the appellant has arise under the County Peace Officers' Retirement Law, Chapter 4, Part 3, Division 4 of Title 3, consisting of sections 31900–32082 of the Government Code. Under these provisions any member who terminates his service with the county before he reaches the age of fifty-five (excepting when disabled) is not entitled to a pension.

Appellant has cited several cases which hold in effect that pension provisions become a part of the contemplated compensation for the services of appellant and are a part of the contract of employment itself. The most recent of the cases to which our attention is directed states: ‘[w]hile payment of these benefits is deferred, and is subject to the condition that the employee continue to serve for the period required by the statute’ and ‘[t]he fact that a pension right is vested will not, of course, prevent its loss upon the occurrence of a condition subsequent such as lawful termination of employment before completion of the period of service designated in the pension plan.’ Kern v. City of Long Beach, 29 Cal.2d 848, 855, 853, 179 P.2d 799, 803.

The conviction of the felony on July 16, 1951, automatically removed Pearson from his office. Appellant asserts that the County Charter provides that the discharge of a civil service employee of the County can be accomplished only by the compliance with the provisions of the Charter. We believe that under sections 1028 and 1770 of the Government Code, the employees or officers covered thereby, upon conviction of a felony, are automatically removed from office. The Charter provisions are not in conflict with the Government Code provisions, but if they are, the Government Code provisions announce a statewide policy and should, and do prevail.

In the case of Di Genova v. State Board of Education, 45 Cal.2d 255, at page 260, 288 P.2d 862, at page 865, the court said:

‘In the revocation of the license for the conviction of a specified crime under statutes like section 12756 there is no real necessity for the board to ‘examine the facts, resolve any conflicts in the evidence, and exercise its judgment with respect thereto’, Covert v. State Board of Equalization, 29 Cal.2d 125, 131, 173 P.2d 545 * * *. There can be little dispute as to the conviction as it is a matter of public record and the question of identity is not likely to arise.'

Clearly, the legislature intended by enacting the provisions of section 1028 that a person who had been convicted of a felony should not be entrusted with the enforcement of the criminal law.

The appellant had not attained the age of fifty-five years on July 16, 1951, and therefore he was not ‘a member * * * who has attained age 55 * * *.’ Government Code, § 32050.

Simply stated, Pearson could not hold the office of deputy sheriff after he was convicted of a felony, and such conviction, in our opinion, disqualified him absolutely. The whole theory behind the pension system in government is to put a premium on conscientious and honorable service. It would be an anomaly, indeed, to have a captain in the sheriff's office, a convicted felon, investigating and gathering evidence against other citizens who had done or were doing the very thing of which the captain was convicted to the end that such other citizens could be sent to the state prison, and at the same time, to have the captain running a race with another set of officials attempting to secure his retirement and a pension, although a convicted felon. It was never contemplated that the pension structure should be based on any such foundation.

Appellant asserts that his behavior while holding the office of caption in the Sheriff's office has nothing whatsoever to do with whether he is eligible to a pension. At the oral argument it was substantially his contention that he had earned the pension and if he had committed a felony every day during his time as a captain in the Sheriff's department for twenty years, he was still entitled to a pension. We do not agree with any such philosophy.

Appellant interprets the words ‘from * * * being employed’ as used in section 1028 of the Government Code to mean and refer to future employment by the state or a division thereof, and that it has nothing to do with his continuance in an employment already established. Stating it in another way, appellant contends that the words relate only to the initial act of employment, and do not refer to anything having to do with a discharge from an employment after once being employed. In other words, appellant argues that the legislature has provided, in effect, that the political subdivision cannot in the first instance hire or engage a person as a peace officer who has theretofore been convicted of a felony; however, if a person has been hired or engaged as a peace officer by a political subdivision, and such person, after such employment or hiring, commits a felony while holding the engagement or the office, there is no disqualification. Had the legislature been of such a mind it would have been an easy matter to provide that if a peace officer were convicted of a felony such conviction would not in any wise affect his right to retirement and a pension. We do not believe that the legislature intended any such limited interpretation of the words used.

In our opinion an incident of Pearson's engagement as a captain in the Sheriff's Department of the county of Los Angeles was that he not be convicted of a felony and that if he were so convicted, then, and in such event, his term as a deputy sheriff would end forthwith.

It appears to us that the pension system for peace officers is as described in the Act creating the system ‘to recognize a public obligation to employees in the public service whose duties expose them to more than ordinary risks * * *.’ It is ‘designed to encourage long and faithful service by the assurance of ultimate honor and the reward of a lifelong competency.’ The very nature and purpose of a pension for a peace officer presupposes that he has not been convicted of a felony in the course of his activities in his office. In the case of People ex rel. Hardy v. Greene, 87 App.Div. 589, 84 N.Y.S. 673, at pages 674 and 675, the court made some statements which are appropriate here, saying among other things:

‘While there is no provision in the statute to the effect that the applicant for retirement must be in good standing at the time, it must be assumed, from the very nature and purpose of a pension, that no successful application could be made by one who was under suspension pending the trial of charges relating to his official conduct. The pension roll is a roll of honor—a reward of merit, not a refuge from disgrace; and it would be an absurd construction of the language creating it to hold that the intention of the Legislature was to give a life annuity to persons who, on their merits, as distinguished from mere time of service, might be dismissed from the force for misbehavior.

‘* * * He is deprived of the right to retire because he has been suspended from the force until the charges pending against him have been tried; and should he be, unfortunately, convicted and dismissed as a punishment, his right to retirement would be lost by his own delinquencies, and not in a legal sense by reason of his continuance in service * * *.

‘* * * If an intention existed to confer upon a favored class the special privilege claimed by the relator, it should have been manifested by explicit expression. It should not be construed into the law, for its effect would be not only to work injustice upon the other members of the force, but to greatly impair the efficiency of the department as a whole; for nothing can be imagined more likely to discourage ambition, to destroy discipline, or to stifle stimulus than the creation of a privileged class among the police, who should be possessed by law of the absolute right to avoid the consequences of violation of duty by the mere voluntary adoption of an honorary retirement, enriched by the enjoyment of a life annuity.’

California courts appear to be in substantial agreement with the view just expressed. In MacIntyre v. Retirement Board of City of San Francisco, 42 Cal.App.2d 734, 109 P.2d 962, the question involved was whether an officer otherwise eligible for a pension, and who makes an application therefor, but who is dismissed for misconduct by the police commission prior to his final action on his application, is entitled to have such application granted. In determining the case, the court, among other things, stated, 42 Cal.App.2d at pages 735–736, 109 P.2d at pages 963–964:

‘It is assumed that upon acceptance of a position as an officer or employee of a governmental agency, an appointee will perform his duties conscientiously and faithfully. In some instances an oath is required. When it is not required, efficiency and fidelity in the performance of duty are nevertheless paramount considerations. It is never contemplated that an officer or employee guilty of conduct warranting dismissal should continue in office or be permitted to receive other emoluments offered as an inducement to honesty and efficiency. The right to a pension is not indefeasible, and an employee, though otherwise entitled thereto, may not be guilty of misconduct in his position and maintain his rights notwithstanding such dereliction of duty.

‘In Douglas v. Pension Board, 75 Cal.App. 335, 340, 242 P. 756, 757, the court said: ‘The considerations upon which a government adopts, as a part of its administrative policy, a system for the pensioning of those who have continuously, for a specified period of years, served the government in the performance of public civil duties, both as officers and employees, are, in a large measure, these: (1) To encourage those public officers or employees who have by experience or otherwise demonstrated peculiar fitness for the performance of the public services to which they have been assigned to continue in the service of the government and at all times faithfully discharged the duties involved in such service. The hope held out for future additional reward or compensation for their public services to that which they receive concurrently with the period during which they are actually and actively engaged in performing such services is conducive to uniform faithfulness and efficiency in discharging the duties which their offices or employments have exacted.’

‘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 by 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.'

We are not unmindful of the views as expressed in State ex rel. Kirby v. Board of Fire Com'rs of City of Hartford, 129 Conn. 419, 29 A.2d 452, Bullock v. Spencer, D.C., 112 F.Supp. 147 and Stiles v. Board of Trustees of Police Pension Fund, 281 Ill. 636, 118 N.E. 202. However, we believe the better rule is as heretofore expressed.

In the light of our conclusions on the effect of the felony conviction, no useful purpose would be served in discussing the remaining contentions.

Judgment affirmed.

FOURT, Justice.

WHITE, P. J., and DORAN, J., concur.

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