DICKEY v. RETIREMENT BOARD OF CITY AND COUNTY OF SAN FRANCISCO (1975)

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

Ruscel DICKEY, Plaintiff and Appellant, v. RETIREMENT BOARD OF the CITY AND COUNTY OF SAN FRANCISCO, Defendant and Respondent.

Kenneth COUEY, Plaintiff and Appellant, v. RETIREMENT BOARD OF the CITY AND COUNTY OF SAN FRANCISCO, Defendant and Respondent.

Civ. 35068 and Civ. 35069.

Decided: August 15, 1975

George J. Engler, San Francisco, for plaintiffs and appellants. Thomas M. O'Connor, city Atty. of San Francisco, Donald J. Garibaldi, Deputy City Atty. of San Francisco, San Francisco, for defendants and respondents.

The issue before us on these appeals by disabled police officers is whether an application for full-pay disability benefits for a limited period of time involves a fundamental vested right so as to invoke the independent judgment test of Strumsky v. San Diego County Employees' Retirement Assn. (1974) 11 Cal.3d 28, 112 Cal.Rptr. 805, 520 P.2d 29. Respondent contends that the benefit sought is not a disability retirement pension which invokes the application of Strumsky (Craver v. City of Los Angeles (1974) 42 Cal.App.3d 76, 79, 117 Cal.Rptr. 534, hrg. den.), but simply a form of workers' compensation benefit (Pasquinelli v. State of California (1975) 45 Cal.App.3d 457, 460, 119 Cal.Rptr. 438).

In Perea v. Fales (1974) 39 Cal.App.3d 939, 114 Cal.Rptr. 808, a police officer, who was suspended from duty without pay for five days on the bound that an off-duty speeding violation was ‘conduct unbecoming an officer’ and cause for discipline, was denied a petition for writ of mandate to set aside the decision of the city personnel board. On appeal, the police officer contended that the court erred in reviewing the personnel board's findings according to the substantial evidence test; he argued that the trial court should have applied independent judgment to the local administrative agancy's findings (at p. 942, 114 Cal.Rptr. 808). In reversing with directions to the trial court to apply independent judgment to the record of the administrative agency hearing, the court relied on Boutwell v. State Board of Equalization (1949) 94 Cal.App.2d 945, 950, 212 P.2d 20 holding that there is no vested right in public employment other than that given by the statute, and noted that the vested right was created by the city's own regulations. (Perea v. Fales, supra, 39 Cal.App.3d at p. 942, 114 Cal.Rptr. 808, hrg. den.)

In the appeals before us, appellants' right vested pursuant to section 8.515 of the San Francisco charter which provides in pertinent part:

‘Whenever any member of the . . . police department . . . is incapacitated for the performance of his duties by reason of any bodily injury received in or illness caused by the performance of his duty, as determined by the retirement board, he shall become entitled . . . to disability benefits equal to and in lieu of his salary as fixed by the charter, while so disabled, for a period or periods not exceeding twelve months in the aggregate, with respect to any one injury or illness.’

It is therefore clear that the independent judgment test of Strumsky applies. (See also Hadley v. City of Ontario (1974) 43 Cal.App.3d 121, 126, 117 Cal.Rptr. 513.)

Strumsky was decided after notice of appeal was filed, but it applies to ‘all pending and future appeals.’ (11 Cal.3d at p. 45, 112 Cal.Rptr. 805, 520 P.2d 29.) Although we are unable to determine from the record before us what standard was applied by the trial court, that court was compelled to apply the substantial evidence standard in light of the existing case law prior to the Strumsky decision. We assume that it did so.

The judgments are reversed and the causes remanded to the trial court with directions to proceed in accordance with the new standard.

FOOTNOTES

FOOTNOTE.  

THE COURT:* FN* Before Taylor, P. J., and Kane and Rouse, JJ.