WINSLOW v. CITY OF PASADENA (1982)

Petitioner appeals from a judgment denying his petition for a Writ of Mandate, seeking to prevent the termination of his disability pension.   We reverse.

Petitioner became a full-time police officer of respondent city in 1961.   In 1973 he developed an upper respiratory tract infection—admittedly service connected.   In 1975 the city's retirement board, after considering medical reports, granted him a medical disability retirement.   At that time, the police department had no “restricted” or “light” duty job assignments.   In 1978, purportedly for budgetary reasons, the city created 10 “light duty” assignments.   Acting under statutory and charter provisions, the city required petitioner to submit to new medical examinations.   Those examinations resulted in reports, accepted by the retirement board of the city, showing that petitioner's condition did not prevent him from performing the duties of one of the newly created “light duty” assignments—to wit a “desk officer.”   As a result, the city terminated his pension and ordered him to duty as a desk officer.   The present proceeding is petitioner's attempt to set aside that action.

In considering the issue before us we proceed in the light of three factors:  (1) admittedly, petitioner's physical condition has not improved since his retirement;  (2) the record before the retirement board adequately supports its finding, concurred in by the trial court, that petitioner is physically qualified to perform the duties to which he has now been assigned;  (3) that, had such a “light duty” assignment been in existence in 1975, petitioner would have qualified for it and, under Mansperger v. Public Employees Retirement System (1970) 6 Cal.App.3d 873, 86 Cal.Rptr. 450, and Craver v. City of Los Angeles (1974) 42 Cal.App.3d 76, 117 Cal.Rptr. 534, he could have been assigned to such a position and denied a pension.

We also recognize that, under Kern v. City of Long Beach (1947) 29 Cal.2d 848, 179 P.2d 799, it is possible ¹ that, had the city created the present “light duty” assignments prior to petitioner's eligibility for a pension, they might have lawfully applied Mansperger and Craver to him.

However, it is well settled that, once a retirement pension has been granted, the employee's rights to it are vested and cannot be removed or restricted.   The present case is, we conclude, governed by Newman v. City of Oakland Retirement Bd. (1978) 80 Cal.App.3d 450, 145 Cal.Rptr. 628.   In that case, although at the time of Newman's retirement, there did exist “light duty” assignments, the settled policy of the city was to retire police officers, with service-connected disabilities, unless they were capable of performing a “full range” of police duties.   Subsequently, the city changed that policy to retire only if the officer was unable to perform “a reasonable range” of police duties.   The city sought to apply that new policy to Newman and terminate his pension and restore him to duty.   The Newman court held that Newman's right to his pension had become vested when the city had retired him under its then policy and that a new policy could not retroactively be applied to him.   The case at bench is even stronger in favor of petitioner.   Here there was not merely a change in policy but a total change in the department's organization—it created new posts never before existing.   If a change in policy cannot be applied to the detriment of a retirement pensioner, the creation of entirely new positions cannot.

The judgment is reversed.

FOOTNOTES

1.   A “possibility” which we need not here decide.

KINGSLEY, Associate Justice.

WOODS, Acting P. J., and McCLOSKY, J., concur.