McNEIL v. BOARD OF RETIREMENT COUNTY OF STANISLAUS (1958)

Defendants appeal from an adverse judgment in an action brought by plaintiffs for a declaration of their rights under the County Employees Retirement Law. Government Code, section 31450 et seq. The primary issue raised by plaintiffs' complaint was that they were entitled to contribute to the system upon the basis of the total compensation paid to them by the county. The defendants' answer admitted that plaintiffs were official court reporters but denied that they were employees of the county and prayed that the court declare plaintiffs should contribute only on the basis of the salaries or per diems received by them for their services as court reporters of the superior court. Any fees received by plaintiffs for services in private are obviously wholly immaterial to the controversy. Judgment was entered in favor of plaintiffs on all issues, and following the denial of defendants' motion for a new trial this appeal was instituted.

At the time of the adoption of the ordinance by which employees of Stanislaus County were brought within the County Employees Retirement Law, the maximum figure as a basis for contributions to the system was $700 per month. Prior to the fifting of that limitation plaintiffs made contributions in the maximum amount although the salaries and per diems paid to them as court reporters were less than the limitation. In 1953 the limitation was repealed. Thereafter the county auditor refused to accept that portion of plaintiffs' contributions in excess of their salaries and per diems as official court reporters.

In addition to the reporting of criminal cases, for which they are paid a monthly salary, plaintiffs' official duties as court reporters include the taking of notes in the superior court and the reporting of civil cases in which the county is a party, transcribing the same on request, writing opinions or orders at the order of the court and rendering stenographic or clerical assistance to the court. For these services they are paid a per diem. Their other activities include various reporting and stenographic services to various county agencies such as reporting in justice and municipal courts and transcribing the notes therefrom, taking statements for the district attorney and transcribing the same, reporting and transcribing grand jury hearings, and reporting and transcribing hearings before the coroner. Plaintiffs' compensation for such services is entirely statutory except that which is paid to them for services as stenographic reporters for the district attorney's office. With the exception of their official duties, all work performed by them is at the request of the particular county officer or office concerned. Their salaries and per diems as official court reporters of the superior court are paid to each individually. For their other services they are compensated as McNeil and Saunders, at the specific request of the county auditor's office. In performing the latter services they share the compensation and expenses equally. The major portion of their transcription work is done by third persons who are paid by plaintiffs.

Preliminarily it should be noted that ‘a liberal construction, not a narrow one, should be given in accordance with the rule ordinarily used in construing pension legislation.’ Brummund v. City of Oakland, 111 Cal.App.2d 114, 123, 244 P.2d 441, 446.

Defendants' primary contention relates to the interpretation of Government Code, section 31554, which provides as follows:

‘All officers and attaches of the superior court established within the county, except judges and participants in any other pension system, become members of the association on the first day of the calendar month after the board of supervisors adopts by four-fifths vote a resolution providing for their inclusion. Thereafter each person entering such employ becomes a member on the first day of the calendar month following his entrance into the service of the court.

‘In this section ‘officer or attache of the superior court’ includes all commissioners, photographic reporters who are paid salaries or per diems by the county and whose contributions are based upon such salaries or per diems, secretaries, stenographers, investigators, messengers, or other employees of the court.' (Emphasis added.)

It is defendants' argument that since reporters of the superior court were not included within the retirement act as originally enacted, and were included only after an amendment thereto was passed by the Legislature which placed their inclusion within the discretion of the county, that therefore the italicized portion of section 31554 was worded so as to specifically limit the basis of their contributions to their ‘salaries or per diems' as official reporters in the superior court and for no other services even though paid by the county.

By reason of both the public and private services performed by reporters which may vary from county to county throughout the state, and because of the various sources of compensation therefor, it is quite apparent that any legislative enactment seeking to bring them within the scope of its provisions would present unique and difficult problems of draftsmanship. Certainly there could have been no thought to have included any compensation received from private litigants, but rather to limit the basis of their contributions to only the compensation received from the county.

Furthermore, had the Legislature desired to restrict the participation of plaintiffs to the extent contended by defendants, it would have been quite simple to have provided a limitation as it did in the case of municipal court reporters in the district embracing the City of Modesto. ‘For the purose of such retirement system the salary provided for in this article for such reporters [$400 per month] shall be deemed their entire compensation.’ Govt.Code, sec. 73829.

We cannot agree with defendants' further contention that plaintiffs, when furnishing services to the county other than as official reporters of the superior court, are acting in the capacity of independent contractors. The trial court found and the record shows that the services performed by plaintiffs for the county other than as reporters of the superior court are temporary, intermittent and rendered only upon request. They are not bound to render such services at the will of the agency making the request, but do so only when their duties as reporters of the superior court will permit such other activities.

Equally without merit is defendants' contention that plaintiffs are a partnership and hence cannot become members of the system. Such contention is merely a conclusion of the defendants. The only reference thereto appears to be that at the request of the auditor payment to plaintiffs for other services to the county was made to them as McNell and Saunders, and tax returns were made in accordance therewith.

Nor should the fact that there may be times when some transcriptions are typed by others preclude plaintiffs from coming within the provisions of the act. It would be physically impossible for plaintiffs to report a proceeding and at the same time furnish a daily transcript thereof without assistance. Because of the necessities of the situation it cannot be said that the county is being charged twice. It is merely paying the reporter for the services requested and rendered—a complete transcript at the beginning of each day of trial. The compensation, whatever it may be, that is paid to a typist by the reporters is necessarily paid out of the reporters' pockets.

The fact that plaintiffs' duties as official reporters do not include the other described services, as defendants contend, does not mean that they do not perform such services as employees of the county. Upon adoption of the enabling ordinance by the board of supervisors, all employees of the county became members of the retirement system. Ordinance No. 357. Thereafter, by separate resolution of the board dated July 8, 1948, it was determined that ‘* * * Court Reporters of Stanislaus County be, and they are, hereby included * * *’ in the retirement system. An employee, by section 31469, subsection (c), of the Government Code, includes ‘any officer or attache of any superior court or municipal court which has been brought within the operation of this chapter’ and by subsection (a) thereof, an employee is further defined to be any person employed by the company whose compensation is fixed by the board of supervisors or by statute, and whose compensation is paid by the county. See also sec. 71617 with reference to justice courts. It is not denied that the compensation for the additional services is fixed by statute and paid by the county.

Defendants' final contention is that they were prejudiced by alleged misconduct on the part of plaintiffs in filing with the court copies of minutes of the retirement board after the close of the case and without notice to them. However it appears that on defendants' motion for new trial this question was presented to the court; that thereafter the matter was stricken from the record as was any reference thereto from the findings and conclusions of the court. Under the record before us we cannot say that defendants have sustained the burden of showing that they suffered any prejudicial misconduct from the alleged acts of the plaintiffs.

The judgment is affirmed.

PEEK, Justice.

VAN DYKE, P. J., and SCHOTTKY, J., concur.