INTERNATIONAL ASSOCIATION OF FIREFIGHTERS LOCAL 145 v. CITY OF SAN DIEGO

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

INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, LOCAL 145, Plaintiff and Cross-Appellant, v. CITY OF SAN DIEGO, et al., Defendants and Appellants.

Civ. 22873.

Decided: November 12, 1981

John W. Witt, City Atty., Ronald L. Johnson, Chief Deputy City Atty., and David H. Morris, Deputy City Atty., for defendants and appellants. Popko & Cornblum and Bruce Cornblum, San Diego, for plaintiff and cross-appellant.

Plaintiff International Association of Firefighters, Local 145 (Local 145), seeks to set aside the decision by defendant San Diego Retirement Board of Administration (Board of Administration) which increased the rate of contribution by approximately 40 percent of Local 145 members (Safety Members), effective July 1, 1978, to the defendant City of San Diego Employee Retirement System Fund (Retirement Fund).

In December 1977 the Board of Administration, acting on the recommendations of its actuary concerning the effect of inflation on certain actuarial assumptions, increased the average firefighter's contribution rate by some three and one-half percentage points from an average level of 8.22 to 11.68 percent of gross salary, the increase to be effective July 1, 1978. This increase was based upon the actuary's assumption that the Safety Member would enjoy salary increases equal to three and one-half percent per year throughout his or her firefighter career. Local 145 responded to this unilateral, nonbargained for, sans corresponding gain, increase in level of rates of contribution by filing this lawsuit premised upon the theory of unlawful impairment of vested contract rights. Local 145 asserted the Board of Administration could not, due to restraints in constitution and ordinance, increase contribution rates for its “Safety Members” unless (1) there was a corresponding increase in benefits or (2) such increase was necessary to protect the integrity of the Retirement Fund.

The trial court found the “City Charter and Ordinances” do not guarantee employees a fixed percentage rate of contribution, nor did they require rate increases be matched by increased benefits; further the Board of Administration's decision to increase rates was “arrived at in good faith” and “the percentage of increase (was) well within reasonable limits” and it “was justified in considering current economic conditions in respect to inflation in order to fix the employees' contribution.”

However, because the Board of Administration had since 1968 distributed handbooks to all new employees which set forth with explicit clarity that the employee's initial contribution rate would not be increased unless additional benefits were provided, the trial court concluded defendants were estopped from increasing the rate of contribution of those employees who received the handbook without providing a corresponding increase in benefits. Local 145's request for attorneys' fees under section 1021.5 of the Code of Civil Procedure was denied on the ground the requirements of section 1021.5 were not satisfied.

Both sides appeal the judgment. Defendants City of San Diego (City) and Board of Administration contend the trial court erred in finding an estoppel precluding increase in the rate of contribution. In the alternative they argue that even if all the elements necessary for applying the doctrine of equitable estoppel were present, the “public interest” precludes applying the doctrine of estoppel in this case. Local 145 cross-appeals, contending the trial court erred in denying the union's request for attorneys' fees and in holding the increase in contribution rates without corresponding benefit was not an unconstitutional impairment of the employment contract. We conclude the trial court's rulings were correct.

DISCUSSION

I

It is settled law in California that a public employee's pension right constitutes an element of compensation and is an integral part of the employment contract. The right to pension benefits vests upon acceptance of employment. Such pension rights may not be destroyed, once vested, without impairing a contractual obligation owed by the employing public body. (Betts v. Board of Administration (1978) 21 Cal.3d 859, 863, 148 Cal.Rptr. 158, 582 P.2d 614; Kern v. City of Long Beach (1947) 29 Cal.2d 848, 852-853, 179 P.2d 799; Wisley v. City of San Diego (1961) 188 Cal.App.2d 482, 485, 10 Cal.Rptr. 765.) The employee obtains a right to a “substantial or reasonable pension” (Wallace v. City of Fresno (1954) 42 Cal.2d 180, 183, 265 P.2d 884) rather than an immutable right to specific benefits; however, before the pension becomes payable, there are well-defined limits on the modifications which may be made to a pension system in effect during employment. The Supreme Court has defined the limits as follows:

“An employee's vested contractual pension rights may be modified prior to retirement for the purpose of keeping a pension system flexible to permit adjustments in accord with changing conditions and at the same time maintain the integrity of the system. (Citations.) Such modifications must be reasonable, and it is for the courts to determine upon the facts of each case what constitutes a permissible change. To be sustained as reasonable, alterations of employees' pension rights must bear some material relation to the theory of a pension system and its successful operation, and changes in a pension plan which result in disadvantage to employees should be accompanied by comparable new advantages. (Citations.)” (Allen v. City of Long Beach (1955) 45 Cal.2d 128, 131, 287 P.2d 765; italics added.)

(See also Betts v. Board of Administration, supra, 21 Cal.3d 859, 864, 148 Cal.Rptr. 158, 582 P.2d 614.)

This court has held where a charter provides for a fixed percentage rate contribution to the retirement fund by the employee, an amendment to the charter which increases the percentage of the employee's contribution without providing a commensurate benefit unconstitutionally impairs the employment contract. (Wisley v. City of San Diego, supra, 188 Cal.App.2d 482, 485-487, 10 Cal.Rptr. 765; see Abbott v. City of San Diego (1958) 165 Cal.App.2d 511, 332 P.2d 324.)

II

Local 145 prevailed on the basis of estoppel principles; we find a more comprehensive foundation for the trial court's decision in the San Diego charter and municipal code sections and the City's contemporaneous construction of these legislative acts as well as in the language of the Board of Retirement Handbook.

San Diego's present retirement system was created by charter section 143 in 1954 and thereafter implemented by City ordinances. (ss 24.0301, 24.0302, 24.0903.) Before 1955, a “fixed payment plan” consisted of employee contributions of a fixed percentage of salary with which an annuity was purchased to furnish benefits. (See Abbott v. City of San Diego, supra, 165 Cal.App.2d 511, 515, 332 P.2d 324.) After 1955, the plan changed; a “formula” was adopted where “we guarantee the employee from day one, upon your retirement we will pay you whatever formula is agreed upon Basically that formula is (1/50th) of your final compensation, which is (the average of the highest three years) for every year (of) service.”

Turning from generalities to specifics, we note the true point of beginning of any analysis of the right/duty relationship between the Board of Administration and its Safety Members is to be found in City Charter article IX, section 141, which empowers the City “to establish a retirement system for compensated public officers and employees ”

The charter establishes a plan concerning “contributions.” Article IX, section 143, has provided since its enactment in 1955 in pertinent part:

“The retirement system herein provided for shall be conducted on the contributory plan, the City contributing jointly with the employees affected thereunder. Employees shall contribute according to the actuarial tables adopted by the Board of Administration for normal retirement allowances, The City shall contribute annually an amount substantially equal to that required of the employees for normal retirement allowances, as certified by the actuary, but shall not be required to contribute in excess of that amount, except in case of financial liabilities accruing under any new retirement plan or revised retirement plan because of past service of the employees. The mortality, service, experience or other table calculated by the actuary and the valuation determined by him and approved by the board shall be conclusive and final, and any retirement system established under this article shall be based thereon.” (Italics added.)

The funds so contributed by either the employee or the City “shall be placed in a special fund in the City Treasury to be known as the City Employees' Retirement Fund ” (s 145.) The system “shall be managed by a Board of Administration”1 whose membership is determined in accordance with section 144 of the charter.

With respect to ordinances necessary to implement the charter provisions, article 146 provides:

“ADDITIONAL PROVISIONS.

“The Council is hereby fully empowered by a majority vote of the members to enact any and all ordinances necessary, in addition to the ordinance authorized in Section 141 of this Article, to carry into effect the provisions of this Article; and any and all ordinances so enacted shall have equal force and effect with this Article and shall be construed to be a part hereof as fully as if drawn herein.” (Italics added.)

The plan as detailed in the ordinances adopted pursuant to the charter authorization provides for a “compulsory” and “condition of employment” membership by the Safety Members. (Ord., s 24.0105.) The “retirement allowance” to be paid Safety Members shall consist of two parts. As section 24.0403 provides:

“The Board of Administration shall provide that upon retirement for service a safety member or an eligible safety member is entitled to receive a retirement allowance which shall consist of:

“(1) A service retirement annuity.

“(2) A pension.

“The service retirement annuity is an annuity which is the actuarial equivalent of the safety member's accumulated normal contributions or the eligible safety member's accumulated normal contributions at the time of his or her retirement.

“The pension for safety members who are not eligible for Social Security benefits is a pension derived from the contributions of the City, sufficient, when added to the service retirement annuity that is derived from the accumulated normal contributions of the member, to equal the fraction set forth in the following table opposite said safety member's age at retirement, taken to the preceding completed quarter year in the column applicable to the safety member's sex, multiplied by the sum of 1/50th of final compensation for each year, and fractions thereof, to which the safety member is entitled to be credited at retirement.

“The pension for eligible safety members is a pension derived from the contributions of the City, sufficient, when added to the service retirement annuity that is derived from the accumulated normal contributions of the member at the date of his retirement, to equal the fraction set forth in the following table opposite his or her age at retirement, taken to the preceding completed quarter year, multiplied by the sum of:

“(Tables follow)” (Italics added.)

The first part of the allowance is an annuity derived entirely from the member's contribution. The amount paid at retirement is the “actuarial equivalent of the member's accumulated normal contributions.” The second part is the pension. It is derived from contributions of the City “sufficient” when added to the “annuity” to equal the amount (approximately 50 percent of the member's “final compensation” as defined in s 24.0103) of the total retirement allowance.

It is significant to note that section 24.0403 directs a “sufficient” amount be contributed by the City to make up the difference between the member's “annuity” and the total retirement amount agreed to be paid. These more specific words are to be contrasted with the section 143 charter provision requiring the City's contribution to be “substantially equal” to that required of Safety Members as their “normal contribution.”

The word “substantially” is a relative term to be interpreted in accordance with the context in which it is used. (Atchison etc. Ry. v. Kings Co. Water Dist., 47 Cal.2d 140, 144, 302 P.2d 1.) “Substantially equal” does not mean “exactly the same.” (Kane v. Paulus, 41 Or.App. 455, 599 P.2d 1154, 1159.) It does not mean “identical” or “equal.” “Substantially” is to be equated with “about” or “nearly,” or “essentially.” (Janzen v. Phillips, 73 Wash.2d 174, 437 P.2d 189, 191.) It is intended to be a close approximation. Thus “substantially equal” as a quantum measurement is a less exact, more narrow, restricted concept than the term “sufficient.” “Sufficient” means “(a)dequate, enough, as much as may be necessary ” (Black's Law Dict. (4th ed.) p. 1601.) “Sufficient” means “ample.” (McLaughlin v. McLaughlin (Ky.1966) 405 S.W.2d 22, 25; see Merchants Nat. Bk. v. Continental Nat. Bk., 98 Cal.App. 523, 277 P. 354.) “(Sufficient) is likely to refer to a quantity or scope that meets the demands of a specific situation” and “sufficiency” means “adequate to the end proposed.” (Webster's Third New Internat. Dict. p. 2284.)

We conclude the words “substantially equal” are general, relative in import and at minimum are neither exact or precise in meaning. However, in requiring that “sufficient” funds be contributed, a more precise, more specific, and at minimum an undertaking capable of precise ascertainment is made by the City.

The rule has long been established that where a general and particular provision are inconsistent, the latter is “paramount.” (Code Civ.Proc., s 1859.) A specific provision, relating to a particular subject although later enacted will govern with respect to that matter as against a general provision. (Long Beach City School Dist. v. Payne, 219 Cal. 598, 28 P.2d 663; Griffith v. Gibson, 73 Cal.App.3d 465, 142 Cal.Rptr. 176; Warne v. Harkness, 60 Cal.2d 579, 588, 35 Cal.Rptr. 601, 387 P.2d 377.)

If in fact an ambiguity or inconsistent effect results from following the basic rule of deriving legislative intent from the plain meaning of the words of the statute, and from reading the charter and ordinance in pari materia (as we are required by charter article 146), then a further and time-honored principle of construction applies where the uncertainty is not removed by the preceding rules. The language of a contract should be interpreted most strongly against the party who caused the uncertainty to exist. (Civ.Code, s 1654; Moss Dev. Co. v. Geary, 41 Cal.App.3d 1, 10, 115 Cal.Rptr. 736.) We deal here with charter ordinance provisions which constitute a “contract” between these parties. We are not dealing with a charter ordinance provision of general import but of conditions of employment which are binding as a matter of contract law between the City and the Safety Members. This principle of interpretation is also appropriate here because this “contract” has the qualities of an adhesion contract.

This charter provision, these ordinances, without resort to additional means for determining legislative intent, do by their plain language require the City to contribute a sufficient, that is to say an ample, adequate, as much as necessary, amount to meet the demands of the specific table of retirement allowances. The result will be a sum equal to the amount promised to be paid at retirement albeit the City's contribution may be unequal to or greater than the “annuity” element contributed by the Safety Members.

This construction placed on section 24.0403 is buttressed by other ordinance sections which must be examined (as commanded by hornbook rule) in pari materia.

Section 24.0301 is most significant. It provides in part as to the Safety Member's contribution:

“The Board of Administration shall provide:

“1. The normal rates of contribution for safety members shall be based on age as of July 1, 1954, or thereafter at the nearest birthday at the time of entrance into the system.

“2. Except as provided in paragraph 3 hereof, the normal rates of contribution for each safety member shall be such as will provide an average annuity at age 50 equal to 1/100th of his final compensation, according to the tables adopted by the Board of Administration for each year of service rendered after entering the system.” (Italics added.)

Thus the “normal rate” to be paid into the fund by the member shall be based upon the member's age at the birthday nearest the time of entrance into the system. A complete and exhaustive search of the charter and applicable ordinances discloses no other date for fixing the rate of member's contributions. Nowhere is it expressed or can it be intuited that the normal rate is to be changed or raised or varied once it is set at the time of entrance. This precise language leaves no room for construction. The rate is set as of the new member's nearest birthday at the time of entrance into the system.

The rate of contribution shall be such as to “provide an average annuity at age 50 equal to 1/100th of his final compensation ” (s 24.0301.) Thus the actuary's function is to set the rate at a level, taking into account the various tables and factors authorized by the ordinances, which will produce a specific amount of annuity at the time of the member's retirement. Thus the resulting “annuity” paid for by a Safety Member is a predetermined sum certain, fixed in amount to the degree actuarial predictions will allow. As is stated in section 24.0307: “The actual amount of annuity receivable by a safety member upon retirement shall be the actuarial equivalent of said safety member's accumulated contributions.” It is this “actuarial equivalent” of the member's “accumulated contributions” to which the City must contribute “sufficient” to meet the agreed retirement allowance.

Our conclusion that the rate of member contribution is fixed, as of the date of entry into the system is confirmed by section 24.0302 which provides in part:

“1. The Board of Administration, based upon the advice of the Actuary, shall periodically adopt the normal B rate on contribution of each safety member according to age at the time of entry into the Retirement System.”

This proviso authorizes changes in the rates to be paid by newly employed firefighters, not a revision upward of those whose rates were earlier set pursuant to section 24.0301 at the time of the member's entrance into employment. To construe section 24.0302 as authorizing a periodic revision upward of all firefighters, new and old, would require a complete recalculation and revision of the actuary projections and change in the “annuity” determined by section 24.0301. This annuity is a sum, predetermined to approximate 50 percent of the retirement allowance by the actuarial process based on the particular member's birthdate as of entry into employment.

To construe section 24.0302 to authorize periodic revision of rates determined earlier under section 24.0301 would introduce a wholly uncertain and variable factor, resulting in an unpredictable-upon entry into employment-annuity. This construction would be totally contrary to the language of section 24.0307.

Such a construction would not only introduce chaos into the calculation of the “annuity” portion of the retirement allowance but would also be contrary to the intent expressed in section 24.0403 to require sufficient contribution from the City to “meet the demands of a specific situation”-the guaranteed retirement sum. There is no intent to make the annuity a periodically changing sum based upon upward revision of rates paid by the Safety Member. Where a statute is capable of two constructions, one leading to mischief or absurdity and the other consistent with justice and common sense, the latter view must be adopted. (Lampley v. Alvares, 50 Cal.App.3d 124, 128, 123 Cal.Rptr. 181.)

Finally, we glean this further intent from section 24.0801 which provides as to City contributions:

“Commencing July 1, 1954 the City shall contribute to the Retirement Fund in respect to members a percentage of earnable compensation as determined by the System's Actuary pursuant to the annual actuarial evaluation required by Section 24.0901. The required City contributions shall be determined separately by the Actuary for General Members and Safety Members.

“All deficiencies which may accrue as a result of the adoption of any section in the Retirement Ordinances must be amortized over a period of thirty years or less.” (Italics added.)

It is fair interpretation of these words that deficiencies are in fact contemplated in the Retirement Fund and those incurred “must be amortized” over the specified period.

Finally, to accommodate a cost of living adjustment provision written into the ordinances in 1971, a most specific provision was enacted authorizing the increase in rate of member's contribution. Section 24.0532 provided for a sharing of the increased cost:

“The cost of any anticipated cost of living increase in allowances which is based upon services rendered after the applicable date of this Division 5-B shall be shared equally between the employer and the contributing member or safety member, with the individual member's contributions based upon his sex and age at his nearest birthday at time of entrance into the Retirement System.

“Commencing July 1, 1971 and until adjusted by the Board upon the recommendation of the Actuary, the contribution requirements of members and safety members as contained in Sections 24.0202 and 24.0302, respectively, shall be increased by 15%. These ‘costs of living contributions' will be separately totaled upon the retirement of members and safety members after July 1, 1971, and based upon the lifetime annuity value of that total as determined by the Actuary, a fixed sum will be added to the normal monthly retirement allowance of the retired member or safety member as provided for in this chapter ”

This most specific ordinance couples an increase in the rate of contribution with an increased benefit. Such legislative act belies any intent to authorize across-the-board rate increases for all members, new and old, without comparable new benefits.

III

If we turn from analysis of the meaning derived from the plain words of the charter and ordinance, we find the City has interpreted the ordinance, since enactment in 1955 until 1978, consistent with the conclusions we have drawn.

Contribution rates have been based upon age at time of entry since 1954. Furthermore, equality of contribution between City and Safety Member has not been the rule. The City has consistently contributed more than a “substantially equal” amount. For example, in 1978 the City paid $2 into the fund for each $1 paid by members and the City has paid as much as $2.50 per $1 member contribution. At the time of the trial (1980) the City was contributing $1.57 to each $1 paid by members. The trial court found that the City actuarial determination had always resulted in the City's contribution to the retirement system exceeding one-half of the total contribution. This finding is supported by substantial evidence. Thus by its own acts the City has admitted the requirement of contributing an amount “sufficient” to meet the promised total retirement allowance.

Our conclusions are further supported by the construction of the charter and ordinance provisions found in the “Safety Member Retirement Handbook.” The “Safety Member Retirement Handbook,” was originally prepared by defendants in 1968 and republished in 1971, 1974, 1976 and 1977. It was distributed to each new firefighter upon employment and was placed in all fire stations. The trial court found the handbook “was designed to provide employees with basic information about the Retirement System in non-technical language.” Both the past and present presidents of Local 145 testified the officers of Local 145 had in fact used the handbook as its primary source of information when answering members' questions regarding the retirement system. Since its inception the handbook has contained in substance the following representations made in question and answer form: We quote, from the 1977 Retirement Handbook, the City's own interpretation of the critical ordinances and charter provisions:

“Q. What retirement contributions are made by Safety Members?

“A. All members contribute a certain percentage of their monthly salary, the percentage depending upon their age at the time they become a member of the system ” (P. 4; italics added.)

And the 1977 Retirement Handbook makes this critical admission:

“Q. As a member grows older does the rate of contribution change with age? 2

“A: No. The percentage rate of contribution at which a member begins contributing is computed to remain unchanged. This is not to say, however, that all rates could not be adjusted at some future time to reflect either changes in benefit provisions of the System or increased earnings of the Retirement Fund.” (Pp. 5-6; italics added.)

And the 1977 Retirement Handbook states:

“Q. How much does the City contribute?

“A. The City contributes an amount somewhat greater than the total amount contributed by the employees. The ratio is presently 2.067 employer contributions to 1 employee contribution.” (P. 6; italics added.)

The foregoing representations that a member's contribution rate would not be increased unless additional benefits were provided was the basis for the trial court's application of the doctrine of estoppel. Not only do these representations form a basis for an equitable estoppel, but most significantly, they constitute the City's contemporaneous construction given to the critical provisions by officials charged with the administration of the retirement fund. While not necessarily controlling, such construction is entitled to great weight. (Jacobs v. Dept. of Motor Vehicles, 161 Cal.App.2d 727, 732, 327 P.2d 123.) Administrative construction is to be given “considerable weight” where, as here, it is of long standing. (Broadway-Locust Co. v. Ind. Acc. Com., 92 Cal.App.2d 287, 293, 206 P.2d 856.) Courts should not depart from such construction unless it is clearly erroneous or unauthorized. (Coca-Cola Co. v. State Bd. of Equalization, 25 Cal.2d 918, 921, 156 P.2d 1; Container Corp. of America v. Franchise Tax Bd., 117 Cal.App.3d 988, 1000, 173 Cal.Rptr. 121.)

One last observation is in order. The trial court made the following finding of fact:

“The Retirement Fund will not be financially imperiled nor will it be put in jeopardy from an actuarial standpoint if the City must refund to each firefighter contributions made in excess of pre July 1, 1978 rates and if future contributions from employees who received the handbook must remain at pre July 1, 1978 rates.”

We resolve all conflicts in the evidence in favor of Local 145 as we must (Crawford v. Southern Pacific Co., 3 Cal.2d 427, 429, 45 P.2d 183), and conclude this finding is supported by substantial evidence. The record clearly indicates the solvency of the retirement system would not immediately be placed in jeopardy by the freeze in contribution rates. There are opinions as to the long run effect on the system and that an increase in contribution rates was necessary to protect the solvency of the system from an actuarial standpoint. However, projections as to the future status of the fund rest on a variety of variable factors falling mainly in the area of guess or speculation. Such estimates, if true, do not warrant a conclusion the integrity of the fund is endangered.

IV

We are compelled, not only by the language of the charter and ordinances but by the City's own deeds and specific longstanding representations to reach these conclusions:

(1) The percentage contributed by the Safety Members depends upon their age “at the time they become a member”;

(2) The percentage of contribution at which the member begins is to remain unchanged, except (a) on change in benefits or (b) upon increased earnings of the fund;

(3) The City agrees to contribute an amount “sufficient” to make up the retirement allowance set forth in the ordinances even though this amount may be somewhat greater than the employee contribution;

(4) The integrity of the Retirement Fund is not endangered by our construction of the charter and ordinances;

(5) The foregoing conclusions as to vested contractual rights apply only to Safety Members employed before July 1, 1978. The City is not precluded from changing the rate of contribution of Safety Members employed thereafter;3 and

(6) Our conclusion that the increased rates of contribution are not authorized by the charter/ordinance language is totally congruent with long-established rules governing modification of existent pension rights. (Betts v. Board of Administration, supra, 21 Cal.3d 859, 863, 148 Cal.Rptr. 158, 582 P.2d 614; Allen v. City of Long Beach, supra, 45 Cal.2d 128, 131, 287 P.2d 765; Kern v. City of Long Beach, supra, 29 Cal.2d 848, 852, 853, 179 P.2d 799.)

V

In view of this analysis we do not discuss the factual-legal basis upon which the trial court found defendants were estopped from increasing the contribution rates of those Safety Members who received a copy of the “Safety Member Retirement Handbook.” However, we have examined the trial court's conclusion and legal premise with great care and can find no fault in the factual base, logic or law applied or in the result reached. If an alternative but less broad base is needed to uphold the trial court's decision, certainly the City's representation in the “handbook” forms a classic base from which to approach an estoppel.

VI

Local 145 urges trial court error in denying its request for attorneys' fees under section 1021.5 of the Code of Civil Procedure.4 Local 145's motion for attorneys' fees and its cross-appeal on this issue were based on its status as the “successful party” in the underlying litigation. (See Pacific Legal Foundation v. Unemployment Ins. Appeals Bd. (1981) 29 Cal.3d 101, 118, 172 Cal.Rptr. 194, 624 P.2d 244.) The disposition of this issue does not depend upon Local 145's status as “successful party.” Local 145 does not meet the statutory requisites for such award. On this record, we find the denial of the motion for attorneys' fees did not constitute an abuse of discretion. The trial court considered the criteria enumerated in section 1021.5 and found two of the criteria were not satisfied. The conclusion is supported by the statute, case law interpreting this section and the factual posture of these plaintiffs.

The judgment is affirmed.

FOOTNOTES

1.  Section 144 provides in part: “The Board of Administration shall be the sole authority and judge under such general ordinances as may be adopted by the Council as to the conditions under which persons may be admitted to benefits of any sort under the retirement system; and shall have exclusive control of the administration and investment of such fund or funds as may be established; and shall be permitted to invest in any bonds or securities which are authorized by General Law for savings banks; ”

2.  In the 1968 handbook, the phrasing of the question was: “As a member grows older does his rate of contribution change?” We perceive a difference in wording only but no difference in the representation made.

3.  See Wallace v. City of Fresno, 42 Cal.2d 180, 183, 265 P.2d 884: “(W)hen a city originally sets up its pension system it has a rather wide latitude in prescribing the terms and conditions for retirement, and it may adopt restrictions that would be considered unreasonable impairments of the contract if subsequently imposed upon employees who have served under the plan.” (Italics added.)

4.  Section 1021.5 provides: “Upon motion, a court may award attorneys' fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit, whether pecuniary or non-pecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any. With respect to actions involving public entities, this section applies to allowances against, but not in favor of, public entities, and no claim shall be required to be filed therefor.”

STANIFORTH, Associate Justice.

COLOGNE, Acting P. J., and WIENER, J., concur.