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Court of Appeal, Second District, Division 3, California.

REDONDO BEACH POLICE SUPERVISORY AND MANAGEMENT ASSOCIATION, etc., et al., Petitioners, Respondents and Cross-Appellants, v. BOARD OF ADMINISTRATION, PUBLIC EMPLOYEES' RETIREMENT SYSTEM, etc., Respondent, Appellant and Cross-Respondent.


Decided: October 22, 1986

John K. Van de Kamp, Atty. Gen., N. Eugene Hill, Asst. Atty. Gen., Henry G. Ullerich, Supervising Deputy Atty. Gen., and John J. Crimmins, Deputy Atty. Gen., for respondent, appellant and cross-respondent. Loew & Marr, Cecil W. Marr and Diane Marchant, Los Angeles, for petitioners, respondents and cross-appellants.

The Board of Administration, Public Employees Retirement System (“Board”) appeals from a judgment granting a peremptory writ of mandate sought by Redondo Beach Police Supervisory and Management Association (“Association”), Allen D. Woods (“Woods”) and Floyd Schrader (“Schrader”).   The Association, Woods, and Schrader appeal 1 from that portion of the judgment placing their request for declaratory relief off calendar and denying their request for attorneys' fees.


On August 22, 1984, the Association, Woods, and Schrader filed a verified petition in which they sought declaratory relief and a writ of mandate against the Board and the City of Redondo Beach (“City”).

In pertinent part the petition contained the following allegations.   The Association is the bargaining representative for police officers of the rank of sergeant and above employed by the City.   Woods and Schrader, who are captains, had fulfilled all prerequisites to receiving retirement benefits under the Public Employees Retirement System (“PERS”) except for terminating their employment and applying for such benefits.   The Board, which manages and controls PERS, has authority to contract with local public employing agencies, such as the City, to provide retirement benefits to their employees.

In January, 1984, the City entered into a written Memorandum of Understanding (“MOU”) with the Association, effective July 1, 1983, to June 30, 1984, which contained certain terms and conditions of employment affecting the Association's members and which were the result of collective bargaining as provided in the Meyers-Milias-Brown Act (“MMBA”) (Government Code Section 3500 et seq.2 ).

Pursuant to section 5 of the MOU City agreed to amend its PERS contract with the Board to add an optional benefit provided by section 20862.8 for the Association's members.   That section further provided that City will make such amendment “as soon as it is legally possible ․ as determined by litigation or legislation.”

City has failed to amend its PERS contract in accordance with section 5 of the MOU, and the Board has refused to allow City to amend its PERS contract.

The Board reasoned:  such an amendment cannot be made on behalf of less than all of the “local policemen” employed by the City.

City, however, has two separate bargaining units in its classification of “local policeman”, the Association, and another which represents police officers of the ranks below sergeant.   MMBA permits recognition of more than one bargaining unit in the classification of “local policeman” where, as here, the City determined that there is inadequate “community of interest” which would permit all employees in that classification to be represented in a single bargaining unit.

The Association, Woods, and Schrader also alleged that they were entitled to an award of attorneys' fees pursuant to Code of Civil Procedure section 1021.5.

On September 10, 1984, the City filed an appearance but took no position concerning the issues raised.3

On June 13, 1985, the Board filed its verified answer to the petition.   It alleged that section 20862.8 did not permit a contracting agency, such as the City, to award its optional benefit to less than all of the City's employees who were classified as “local policemen”, that no conflict existed between that section and MMBA which would justify a different result, and that section 20862.8 was not unconstitutional.   The Board also took the position that even if petitioners prevailed, a judgment in their favor would not confer a significant benefit on the general public or a large class of persons, which is a prerequisite for an award of attorney's fees under Code of Civil Procedure section 1021.5.

On June 18, 1985, a hearing was held on the petition.

On July 5, 1985, the court entered its judgment, ordering that a peremptory writ of mandate be entered, commanding respondent City, and its agents, officers and employees, promptly upon receipt of that writ to submit the amendment to the PERS contract sought by Petitioners herein to give effect to section 5 of the negotiated Memorandum of Understanding between the City of Redondo Beach and the Redondo Beach Police Supervisory and Management Association, and to make and file a return on the writ of mandate on or before July 31, 1985;  and that a second peremptory writ of mandate be entered, commanding respondent Board of Administration, Public Employees' Retirement System and its agents, officers and employees, promptly upon receipt of that writ and the amendment to the PERS contract to accept and give effect to the amendment sought by petitioners, and requested by the City of Redondo Beach, to extend the benefit of Government Code § 20862.8 (credit for unused sick leave) to those individuals covered by the Memorandum of Understanding (“MOU”) between the City and the Redondo Beach Police Supervisory and Management Association, retroactive to the effective date of that MOU, July 1, 1983, so as to extend that benefit to Petitioners Woods and Schrader and to any other members of the represented bargaining unit since that date.

The Board and the City were further commanded to make and file returns on the writs of mandate on or before July 31, 1985.

The trial court further ordered that the Association, Woods and Schrader should recover their costs in the sum of $100.00 of suit herein pursuant to the filing of a Memorandum of Costs and Disbursements, but their motion for attorney fees was denied.

On July 30, 1985, the City filed a return to the peremptory writ of mandate issued to it.   The City represented that it had fully complied with the writ, which was issued on July 15, 1985, by submitting the amendment to the PERS contract to the Board.

On July 31, 1985, the Board filed its return in which it announced that on that date it had filed a notice of appeal from the judgment.


The Optional Benefit Provided For In Section 20862.8 Is Available To Less Than All “Local Policemen”

On appeal the Board reiterates its position at the hearing that the optional benefit set forth in section 20862.8 is available only when it is afforded to all the “local policemen” employed by the contracting Agency.

Under the facts of this case we disagree.

The Board contends that there is no statute or other authority which would enable the City to provide the subject benefit to only one of its two police officer bargaining units.   It concludes that the City is without power to act in the absence of specific authority to act.  (Irwin v. City of Manhattan Beach (1966) 65 Cal.2d 13, 20, 51 Cal.Rptr. 881, 415 P.2d 769.)

The Board's reliance on the Irwin case, however, is misplaced.  Irwin involved a “general law” city.   The City of Redondo Beach, on the other hand, is a city operating under a charter.  “A city charter is construed to permit the exercise of all powers not expressly limited by the charter or by superior state or federal law.  [Citations.]”  (Taylor v. Crane (1979) 24 Cal.3d 442, 450–451, 155 Cal.Rptr. 695, 595 P.2d 129.)

In this regard the Board asserts that the authority for requiring the benefit to be afforded, if at all, to all the City's “local policemen” is section 20496, which provides in pertinent part:  “Whenever in this part an election is given to contracting agencies to subject themselves and their employees to provisions of this part otherwise not applicable to contracting agencies and their employees, a contracting agency may exercise such right of election independently ․ with respect to those employees who are local policemen, local firemen, county peace officers, local safety members other than local policemen or local firemen or county peace officers, and local miscellaneous members.”

The Board points out that nothing in section 20496 specifically authorizes a contracting agency to afford a retirement benefit to some but not all of its “local policemen”.   As added support, the Board refers to Variations In Retirement Benefits, 61 Ops.Cal.Atty.Gen. 240 (1978).   In that opinion the Attorney General took the position that different retirement benefits may not be prescribed for members of the same safety member group under the Public Employees Retirement Law (PERL).  (Section 20000 et seq.)

The Board's reliance on that opinion is also misplaced.   The inquiry before the Attorney General concerned the proposed amendment of its PERS contract by a city which wanted to provide its new fire department employees with a lesser benefit than the one-fiftieth at age fifty-five formula in section 21252.6 already elected for its existing firefighters.   The Attorney General was not confronted with the situation here, which involves a proposed amendment to add an optional benefit which had not heretofore been afforded to any “local policeman” of the City in any form whatsoever.   Additionally, the Attorney General was not confronted with a classification of employees which under MMBA must be segregated into two distinct groups for the purpose of entering into employment contracts with the city.   Instead, the city referred to in the Attorney General's opinion apparently decided on its own to treat newly hired employees differently, i.e., afford them lesser benefits than already-hired employees, simply to save money.   Such discrimination was neither mandated nor authorized under the PERL.

We agree with the Board's assertion that the PERL does not differentiate between members in a particular PERS classification.4  However, our inquiry does not end here.  “Under established principles [the Board's] construction is to be regarded with deference by a court performing the judicial function of statutory construction, and will generally be followed unless it is clearly erroneous.  [Citations.]”  (San Mateo City School Dist. v. Public Employment Relations Bd. (1983) 33 Cal.3d 850, 856, 191 Cal.Rptr. 800, 663 P.2d 523.)

The Board's restrictive “all or none” approach would effectively frustrate the basic purpose of MMBA, which is “to permit as much flexibility in employee-governmental agency relations with regard to all aspects in the employer-employee milieu as a voluntary system will permit.”  (San Joaquin County Employees' Assn., Inc. v. County of San Joaquin (1974) 39 Cal.App.3d 83, 88, 113 Cal.Rptr. 912.)   Moreover, it would serve to defeat the MMBA's function “to promote full communication between public employers and their employees by providing a reasonable method of resolving disputes regarding wages, hours, and other terms and conditions of employment․”  (§ 3500.)

It is beyond dispute that retirement benefits may constitute a condition of employment within the meaning of MMBA.   It is therefore incumbent upon us to construe provisions of the PERL to harmonize with the provisions of MMBA.  (Organization of Deputy Sheriffs v. County of San Mateo (1975) 48 Cal.App.3d 331, 340, 122 Cal.Rptr. 210.)

 To adopt the Board's construction would violate the above principle.   We must, instead, construe section 20862.8 of the PERL as providing a benefit that is available to less than all members of a PERS classification when such classification may be fragmented into smaller bargaining units pursuant to MMBA.   The Board does not contest the legitimacy of the Association, which is comprised of police officers with the rank of sergeant and above only.5  Accordingly, we conclude that the trial court did not err in ordering the Board to amend its contract with the City to extend the benefit set forth in section 20862.8 to the members of the Association and specifically to Woods and Schrader.

Attorneys' Fees

 The Association, Woods, and Schrader contend that the trial court erred in denying them an award of attorneys' fees under Code of Civil Procedure section 1021.5.

On this issue, in denying the request for attorneys' fees, the court stated:

“THE COURT:  I cannot say as a matter of law that what was done here was [so] arbitrary or capricious that attorney's fees are proper.   So I am not going to award attorney's fees.

“I think there is here a confusing statute.   I'm not saying it's ambiguous, but it lends itself at least to being read as it's being read here, and under the circumstances I don't think it's fair to penalize PERS to award attorney's fees against it in this matter.   So I am going to deny attorney's fees.”

From the foregoing it is clear that the trial court did not evaluate the request for attorneys' fees on the basis of the specific factors set forth in Code of Civil Procedure section 1021.5,6 which provides in pertinent part:  “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 nonpecuniary, 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.”

The issue concerning the propriety of an award of attorneys' fees and the amount of such award, if any, must therefore be remanded for a proper determination by the trial court since “[t]he trial court, using its traditional equitable discretion now codified in section 1021.5, is in the best position to realistically assess the litigation from a practical perspective under the private attorney general theory.”  (Save El Toro Assn. v. Days (1979) 98 Cal.App.3d 544, 554, 159 Cal.Rptr. 577;  cf. Baggett v. Gates (1982) 32 Cal.3d 128, 142–144, 185 Cal.Rptr. 232, 649 P.2d 874.)   By this statement we do not indicate whether attorneys' fees should, or should not, be awarded, but we leave that decision to the sound discretion of the trial court.


That portion of the judgment denying an award of attorneys' fees is reversed, and the matter is remanded with directions to the trial court to hold a further hearing on that issue in conformity with Code of Civil Procedure section 1021.5 and the views expressed in this opinion.   In all other respects the judgment is affirmed.   All parties to this appeal are to bear their own costs.


1.   The Association, Woods, and Schrader have abandoned their appeal from the judgment with regard to the denial of their request for declaratory relief.

2.   All future statutory references are to the Government Code, unless otherwise indicated.Section 20862.8 provides in pertinent part:  “A local miscellaneous member and a local safety member, whose effective date of retirement is within four months of separation from employment with the employer which granted the sick leave credit, shall be credited at his retirement with 0.004 year of service credit for each unused day of sick leave certified to the board by his employer.This section shall not apply to any contracting agency nor to the employees of any contracting agency unless and until the agency elects to be subject to this section by amendment to its contract made in the manner prescribed for approval of contracts, except that an election among the employees is not required, or, in the case of contracts made after September 26, 1974, by express provision in the contract making the contracting agency subject to this section.”

3.   The City has not appealed from the judgment.

4.   The general definition of a “local policeman” is found at section 20020, which reads:“ ‘Local policeman’ means any officer or employee of a police department of a contracting agency which is a city, except one whose principal duties are those of a telephone operator, clerk, stenographer, machinist, mechanic, or otherwise and whose functions do not clearly fall within the scope of active law enforcement service even though the employee is subject to occasional call, or is occasionally called upon, to perform duties within the scope of active law enforcement service, but not excepting persons employed and qualifying as patrolmen or equal or higher rank irrespective of the duties to which they are assigned.“ ‘Local policeman’ does not include persons employed to perform identification or communication duties, other than persons in such employment on August 4, 1972, who elected within 90 days thereafter to be local safety members.   A contracting agency may elect by amendment to its contract to include as ‘local policeman’ all persons who were employed to perform identification or communication duties on August 4, 1972, and who elect within 60 days of the effective date of the contract amendment to be local safety members.   The election shall apply to the person's past as well as future service in the employment held on the effective date but shall not apply to service following any subsequent acceptance of appointment to a position other than that held on the effective date.   This paragraph shall not apply to persons employed and qualified as patrolmen or equal or higher rank.”Community college police officers and city jailors are also “local policemen”.  (§§ 20020.8 and 20020.9, respectively.)

5.   To lump both supervisory and nonsupervisory “local policemen” in the same bargaining unit, which is the effect of the Board's interpretation, would impermissibly create conflicts-of-interest since they would not share the same community of interest and the desires of the majority, i.e., nonsupervisory, would overwhelm and perhaps wipe out those of the minority, i.e., supervisory.  (See generally, Grodin, Wollet & Alleyne, Collective Bargaining in Public Employment (3rd ed. 1979) pp. 60–61.)

6.   Instead, the court apparently applied the “arbitrary or capricious” standard set forth in Government Code section 800, which is not applicable to the present case.

DANIELSON, Acting Presiding Justice.

ARABIAN and KENNARD *, JJ., concur.