Reset A A Font size: Print

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

Kenneth I. SYMINGTON, Plaintiff and Respondent, v. CITY OF ALBANY, Board of Police and Fire Pension Fund Commissioners; Richard O. Clark, Marietta B. Ferreira, Arthur K. Smith, William E. Lanctot, and Myrtle J. McLean, as Members, Defendants and Appellants.

Civ. 25960.

Decided: March 20, 1970

Lawrence D. Saler, City Atty. of Albany, Albany, for defendants and appellants. Arthur Bellman, Berkeley, for plaintiff and respondent.

This cause was tried on stipulated facts.

The City of Albany is organized under California Constitution, article XI, sections 6 and 8, by a freeholders' charter approved April 1927.1 The police and fire pension system, set out in section 50 thereof, was adopted in 1935.2 The individual appellants are members of the Board of Police and Fire Pension Fund Commissioners of the City of Albany created by the charter provisions.

On January 29, 1963, the respondent Symington, a city fireman, sustained injuries in the course of his duties by which he became permanently disabled. On February 13, 1964, the state Industrial Accident Commission awarded him permanent disability payments of $52 .50 a week, beginning August 8, 1963, continuing for 324 weeks; and thereafter a payment of $25.44 per week for life, subject to $1,000 attorney's fees. These payments are being made from the State Compensation Insurance Fund. The preminums for such insurance have been, and will continue to be, paid from the general fund of the City of Albany.

Under Labor Code, section 3300, the ‘employers' subject to workmen's compensation laws include cities. Labor Code, section 3751 provides, ‘No employer shall exact or receive from any employee any contribution, or make or take any deduction from the earnings of any employee, either directly or indirectly, to cover the whole or any part of the cost of compensation under this division.’ The terms and conditions of municipal employment in such a chartered city in most aspects are municipal affairs not affected by general laws (City of Pasadena v. Charlesville (1932) 215 Cal. 384, 389, 10 P.2d 745; Butterworth v. Boyd (1938) 12 Cal.2d 140, 147, 82 P.2d 434, 126 A.L.R. 838; Popper v. Broderick (1899) 123 Cal. 456, 56 P. 53; cf. Bishop v. City of San Jose (1969) 1 Cal.3d 56, 81 Cal.Rptr. 465, 465 P.2d 137).

In respect to workmen's compensation, as a matter of statewide concern, the general laws are held to prevail (Healy v. Industrial Acc. Com. (1953) 41 Cal.2d 118, 122, 258 P.2d 1). But chartered cities are not required by any general law to establish pension systems. No public officer or employee is entitled as a right to a pension (Douglas v. Pension Board (1925) 75 Cal.App. 335, 341, 242 P.756). When a pension system is established, either by ordinance (cf. Eichelberger v. City of Berkeley (1956) 46 Cal.2d 182, 293 P.2d 1) or by provisions such as section 50 of the Albany charter before us, the people adopting the charter provisions have plenary power to prescribe therein the nature and conditions of the pension system as a municipal affair (Bellus v. City of Eureka (1968) 69 Cal.2d 336, 348, 352, 71 Cal.Rptr. 135, 444 P.2d 711; Butterworth v. Boyd, supra, 12 Cal.2d 140, 147, 82 P.2d 434; Richards v. Wheeler (1935) 10 Cal.App.2d 108, 111, 115, 51 P.2d 436; Klench v. Board of Pension Fund Com'rs (1926) 79 Cal.App. 171, 179, 249 P. 46).

Thus, when a policeman or fireman is injured or dies in the line of duty, the amount which he or his dependents are to receive in addition to any award under the workmen's compensation laws validly depends solely upon the authorizing charter provisions, or ordinance, or regulations thereunder.

In Brophy v. Employees Retirement System (1945) 71 Cal.App.2d 455, 461, 162 P.2d 939, charter provisions which provided for reduction of the pension of certain retired employees with income over a certain amount derived from gainful employment, were sustained.

The system involved here was recognized in Lyons v. Hoover (1953)41 Cal.2d 145, 147, 258 P.2d 4. Consult also, Foster v. Pension Board (1937) 23 Cal.App.2d 550, 553, 73 P.2d 631, in which the court sustained ordinance provisions comparable to Albany charter section 50, subdivision (n).

The chartter before us provides for payment of disability allowances, and the board of pension commissioners granted plaintiff an allowance of $363.50 a month, effective August 1, 1963. When the workmen's compensation award was made on February 13, 1964, against the city and the State Compensation Insurance Fund, the city board reduced respondent's pension, payable from the pension fund so that the sum of the compensation paid plus the pension allowance, did not exceed the total of $363.50 a month.3

This was strictly in accordance with charter section 50, subdivision (n), which provides that the disability benefits will not be supplemental to any workmen's compensation award, but complementary thereto; to the end that the two together will equal the pension board's award of one-half pay.4

There was no evidence that (1) the workmen's compensation award was reduced; (2) that any of the funds paying the cost for workmen's compensation resulted from any exaction, contribution, or deduction from the earnings of the employee, directly or indirectly, in violation of Labor Code, section 3751.

The premiums were paid by warrants or checks upon the general fund of the city.

The city's pension fund is a trust account. It was stipulated that the monies in said fund are deposited in a savings bank, under the direction and control of the Board of Police and Fire Pension Fund Commissioners, separate and apart from the other funds of the defendant city. Hence, the formulas applied in the City of Los Angeles pension cases are inapplicable here (City of Oakland v. Workmen's Comp. Appeals Bd. (1968) 259 Cal.App.2d 163, 169–170, 66 Cal.Rptr. 283).

The pension fund is fed monthly by checks or warrants drawn by the city, transferring the 6 percent contributions of its employees deducted from their wages and the city's matching 6 percent contribution (charter, § 50, subd. (l)), and it is stipulated also that said pension board thereafter has complete control over the monies and the investment portfolio of the fund.

We have concluded that the trial court was in error in determining that such a system violates Labor Code, section 3751, in the manner found unlawful in City of Los Angeles v. Industrial Acc. Com. (1965) 63 Cal.2d 242, 46 Cal.Rptr. 97, 404 P.2d 801; City of Los Angeles v. Industrial Acc. Com. (1965) 63 Cal.2d 255, 46 Cal. Rptr. 105, 404 P.2d 809; and Cavoretto v. City of Richmond (1969) 270 A.C.A. 802, 76 Cal.Rptr. 94. Those cases determined that the Los Angeles charter provisions and the Richmond charter provisions, as administered, did reduce the state workmen's compensation award in violation of Labor Code, section 3751, and pro tanto devoted the employees'contribution to do so. The city was held only to be entitled to claim a credit to the extent of its contribution to the pension fund.

The trial court in this case applied the same rule, which finds no support in the stipulated facts and Albany charter provisions. Unlike the Los Angeles charter provisions which gave rise to the decisions relied upon by respondent, the Albany charter does not provide that the payment from the police and fire pension fund shall ‘be construed to be and shall be payment of such workmen's compensation.’ The City of Los Angeles failed to show that the deductions from earnings would not cover the whole or any part of the cost of workmen's compensation (City of Los Angeles v. Industrial Acc. Com. (1965) 63 Cal.2d 242, 244, 249, 46 Cal.Rptr. 97, 404 P.2d 801).

The stipulated facts indicate that during the term of respondent's employment, he contributed the sum of $5,761.57 to the pension fund, and his contribution was matched by the city.

By its Answer to Interrogatories, the city set forth the percentage of interest earned by the fund in each of the years of Symington's employment (ranging from .0134 in 1946–1947, sto .0396 in 1962–1963).

Symington's workmen's compensation award of $52.50, or $210 per month, extended for 324 weeks, a total of $17,010. From thence forward, the award was for $25.44 per week, or $1,322.88 per year. Thus, the city pension fund increment added monthly to the workmen's compensation awarded was in the sum of $153.50, through October 1969 . Now, the monthly pension fund increment is increased to $261.74. The reduction of workmen's compensation to $25.44 per week is in effect since the initial award for 324 weeks has expired.

During the 324 week period (6.23 years), the amount of Symington's total stipend in his pensioner's status fixed by the city pension board totaled $27,175.26. Against this was credited the state workmen's compensation award of $17,010, leaving a net of $10,165.26 paid to Symington from the city pension fund to the end of that period. The city payment thus exceeded by 40 percent or more Symington's contribution to the fund plus compound interest earned upon the same.

The respondent and the city entered into a contract of employment which; by operation of law, incorporated the charter pension system (Bellus v. City of Eureka (1968) 69 Cal.2d 336, 351, 71 Cal.Rptr. 135, 444 P.2d 711; Kern v. City of Long Beach (1947) 29 Cal.2d 848, 853, 179 P.2d 799).

The respondent Symington therefore is not entitled to the judgment awarded him, which gave him $5,141.15 and interest, in addition to that provided by the charter, and permitted the city to deduct from the monthly $363.50 award made by the city only one-half of the monthly payment from the State Compensation Insurance Fund.

The adequacy of pensions is a legislative matter, determined by the people of the city in adopting the charter provisions. In construing the charter, it is beyond the judicial powers of the court to add thereto. If its operation results in inequality or hardship in some cases, or if the established pensions are inadequate the remedy therefor lies with the legislative authority (McCarthy v. City of Oakland (1943) 60 Cal. App.2d 546, 549, 141 P.2d 4; Bock v. City of Oakland (1937) 19 Cal.App.2d 115, 117, 64 P.2d 1098).

The judgment is reversed, with directions to enter judgment for the defendants.



1.  Published in Statutes 1927, page 2312 et seq.

2.  Published in Statutes 1935, page 2425 et seq. Section 50, subdivision (d) was amended (consult Stats. 1961, ch. 61, p. 4820).

3.  By the City of Albany charter (consult Stats.1961, p. 4820), section 50, subdivision (d) provides that the board, upon retiring a policeman or fireman, may order and direct that he shall be paid from the police or fire relief and pension fund, during his lifetime, a yearly pension equal to one-half of the amount of salary attached to the rank which he may have held at the date of such retirement.

4.  As adopted and approved (Stats.1935, pp. 2425, 2436), section 50, subdivision (n) of the charter provides: ‘Any and all benefits payable under the provisions of this law shall not be additional to and supplemental to any compensation insurance or other insurance covering the scope of this law for the benefit of members of the Police or Fire Department and paid for by the City of Albany from sources other than under this law, but the benefits of said such compensation or other insurance paid for by the City of Albany shall first be deducted from benefits payable under the provisions of this law to the end that said members of the Police or Fire Department shall receive an aggregate total of benefits paid for by the City of Albany and not included in this law, and the benefits provided for under this law, not to exceed in total the highest amounts or sums provided under the provisions of this law.’

DAVID,* Associate Justice pro tem. FN* Retired Superior Court Judge sitting under assignment by the Chairman of the Judicial Council.

SHOEMAKER, P. J., and TAYLOR, J., concur.