BONNER v. COUNTY OF SAN DIEGO

Filed 5/26/06

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

Story Continue from Part I ……

Similarly, section 31676.1 provides a mathematical formula for calculating a general member's retirement allowance.   It provides in relevant part:  " This section may

be made applicable in any county on the first day of the month after the board of supervisors of such county adopts, by majority vote, a resolution providing that this

section shall become applicable in such county.  Notwithstanding any other provisions of this chapter the current service pension or the current service pension combined with the prior service pension is an additional pension for members purchased by the contributions of the county or district sufficient, when added to the service retirement annuity, to equal the fraction of one-sixtieth of the member's final compensation set forth opposite the member's age at retirement, taken to the preceding completed quarter year, in the following table multiplied by the number of years of current service or years of current and prior service with which the member is entitled to be credited at retirement, but in no event shall the total retirement allowance exceed the member's final compensation.

" Age  of  Retirement                                        Fraction

"           50                                                            .7091

"           50-1/4                                                            .7183

[¶]  .  .  .  [¶]

"           65  and  over                                                  1.4593" ^[1]

                      In determining the scope of section 31705, we begin by noting that the statute provides that a deferred member's retirement allowance shall be " calculated" by the version of the CERL that exists when the member begins to receive a retirement allowance.^[2]  " Calculate" means " to determine by mathematical processes."   (Merriam-Webster's Collegiate Dict. (11th ed. 2006) p. 174.)  As noted above, the CERL prescribes

various mathematical formulas for calculating a member's retirement allowance.  The member's status as either a general or safety member determines which formula is to be used.  Section 31705 uses the verb " calculate," which is associated with mathematics, in describing its subject matter.  Accordingly, the text of section 31705 suggests that its purpose is to provide that the formula contained in either section 31676.1 or section 31664 (or the local option tables described in footnotes 7 and 8, ante), that is in effect at the time a member begins to receive his retirement allowance, is to be used in calculating the amount of the member's retirement allowance, absent some other applicable statutory provision prescribing the use of a different formula.  The text of section 31705 does not indicate that a deferred member's eligibility for safety member benefits is to be determined by changes to the CERL that are made after the member takes deferred retirement.

                      B.  Related statutory provisions support the conclusion that section 31705 does not mandate that a deferred member's eligibility for safety member benefits is to be determined by amendments to the CERL that occur after the member takes deferred retirement.

                      With respect to general members, there is a separate statutory provision that defines the proper method for calculating the member's retirement allowance when a county has changed the statutory table it uses for calculating such benefits.  Section 31678 provides:  " Notwithstanding any other provision of this chapter, any member of a retirement association established in any county pursuant to this chapter, who upon retirement receives a retirement allowance calculated in accordance with Sections 31676.1, 31676.11, 31676.12, 31676.13, 31676.14, and 31676.15, shall have his or her retirement allowance calculated under each such section only for the period of time that the section was effective in the county.

                      " The Legislature recognizes that counties subject to this chapter may adopt two or more of the enumerated retirement allowance calculation sections when changing from a section providing a lesser allowance to a section providing a larger allowance and thereby creates a windfall for a person who retires immediately after the adoption of a section providing the larger allowance because the retirement allowance is calculated as if the section had been in effect during the entire career of the member.  The purpose of this section is to prevent this practice.  This section shall apply only to persons who become members of the retirement system after January 1, 1981."

                      Section 31678 provides the method by which to apply the CERL to a general member who is subject to more than one retirement allowance calculation section of the CERL.  The provisions of section 31678 support the conclusion that section 31705 does not require the Association to reclassify appellants as safety members for two reasons.  First, the text of section 31678 refers to a member who has his " retirement allowance calculated in accordance with Sections 31676.1, 31676.11, 31676.12, 31676.13, 31676.14, and 31676.15" and refers to these sections as " retirement allowance calculation sections."   (§  31678, italics added.)  Thus, in section 31678, the Legislature used the phrase " retirement allowance calculated" to refer to the process of calculating a member's retirement allowance within a particular statutory formula, and not to refer to the determination of which statutory formula applies to the member.  The Legislature repeatedly uses the phrase " retirement allowance calculated" or a derivation thereof, in related statutory provisions of the CERL to refer to the process of calculating a retirement allowance within a given statutory formula.  (See § 31678.2 [referring to a " section of this chapter prescribing a formula for calculation of retirement benefits" ]; §  31664.65 [referring to a " retirement allowance calculated pursuant to Section 31644" ].)  This suggests that the Legislature intended the phrase " retirement allowance shall be calculated" to have that same meaning in section 31705.  (See e.g.,People v. Coker  (2004) 120 Cal.App.4th 581, 588 [" ' " To understand the intended meaning of a statutory phrase, we may consider use of the same or similar language in other statutes, because similar words or phrases in statutes in pari materia [that is, dealing with the same subject matter] ordinarily will be given the same interpretation."   [Citations.]'  [Citation.]" ].)  These related statutory provisions support the conclusion that section 31705 provides that the calculation of a deferred member's retirement allowance within a given statutory formula ─ but not the classification of the member as a general member or safety member ─ is provided by the version of the CERL that is in effect at the commencement of the member's retirement allowance.

                      Second, section 31678 eliminates the " windfall" many general members would otherwise receive by retiring soon after an increase in benefits was passed, a windfall that would otherwise be expressly authorized for members on deferred retirement pursuant to section 31705.  Section 31678 does so by providing that when a county adopts a more favorable formula for calculating retirement benefits for its members, use of the new formula is restricted to service that is rendered after the adoption of the formula.^[3]  It would be anomalous to construe section 31705 to provide members on deferred retirement with a potentially greater windfall, i.e., the reclassification from general to safety member status, given that the Legislature has drastically limited the impact of the broad rule set forth by section 31705 by enacting section 31678.

                      Additional support for our construction of the phrase " retirement allowance shall be calculated" in section 31705 is found by examining the statutes that expressly address the classification of a member as a safety member.  These statutes do not refer to such classification as the process of " calculating a member's retirement allowance," but instead use language not found in section 31705.  For example, section 31639.7 discusses the manner by which members who are " brought within [the] field of safety membership" may receive credit for service completed prior to an amendment to the CERL reclassifying the member as a safety member.  Similarly, section 31470.8 provides:  " In cases of doubt as to whether a person is eligible to become a safety member, the board shall decide."   Such language is consistent with the conclusion that section 31705 refers only to the calculationof a member's retirement allowance, and not to the member's

eligibility to receive safety member benefits.  (Cf. § 20968 [distinguishing between the

" retirement purposes" of " benefit eligibility and calculations of retirement allowances" ], italics added; see also In re Marriage of Loh (2001) 93 Cal.App.4th 325, 337 [" ' [D]etermining or modifying' are broad words in this statutory context [that] go beyond mere calculation' " ].)

                      C.  The only published case considering the scope of section 31705 is consistent with our interpretation of the statute and is distinguishable on its facts.

                      In Maffei v. Sacramento County Employees' Retirement System (2002)103 Cal.App.4th 993 (Maffei), the only published case to consider the scope of section 31705, the court considered whether section 31705 required a county to grant a former employee on deferred retirement status the benefit of a statute, enacted after she had taken a deferred retirement with the county, that established reciprocity between the county's retirement system (SCERS) and the retirement system of her current employer (STRS).  The Maffei court explained that the reciprocity provisions of the CERL allow " an employee to defer retirement in the first job and then retire from both jobs simultaneously and have the retirement allowance for both jobs be based on the employee's highest compensation for either."   (Maffei, supra, 103 Cal.App.4th at p. 995.)  The Maffei court further noted that if the member were to receive " reciprocal retirement benefits, her retirement from SCERS will be about $700 more per month than it would be without reciprocal retirement benefits."   (Id. at p. 996.)  The Maffei court held:  " Government Code section 31705, a part of CERL, provides:  'The retirement allowance shall be calculated according to the provisions of this chapter as they exist at the time of the commencement of the retirement allowance.'  Maffei has not begun receiving a retirement allowance from SCERS because, when she resigned her job with the County, she deferred her retirement.  When she retires from both SCERS and STRS simultaneously, she will begin receiving a retirement allowance from SCERS.  At that time, the retirement allowance will be calculated according to the provisions of CERL.  If, at that point, SCERS and STRS remain reciprocal, as they now are, she will be entitled to the benefit of the reciprocity in determining her retirement allowance."   (Maffei, supra, 103 Cal.App.4th at pp. 997-998.)

                      Although the Maffei court did not explain the precise manner in which the application of the CERL reciprocity provisions would increase the member's pension in that case, the court noted that the reciprocity provisions affected how a member's " highest compensation" is measured.  (Maffei, supra, 103 Cal.App.4th at pp. 995-996.)  " Final compensation" is one of the components of the formula for calculating a member's retirement allowance in the CERL.  (See §§  31664 [using " final compensation" as part of the formula for calculating a safety member's retirement allowance], 31676.1 [same with respect to general members].)

                      The changes in the CERL that were at issue in Maffei were essentially changes to the variables contained within the formulas used to calculate a member's retirement allowance.  Unlike in Maffei, the change in the CERL^[4] at issue in this case does not merely alter the manner by which a retirement allowance of a member is calculated within a given statutory formula.  Rather, the effect of the adoption of section 31469.4 by the County is to change the classification of a group of persons, with the result that their retirement allowances will be calculated using a different statutory formula.  Thus, the question presented in Maffei is distinguishable from that presented in our case, and the holding of Maffei is consistent with our construction of section 31705.

                    Finally, we note that in Maffei the court imprecisely used the term " determined" as a synonym for " calculated" in describing the scope of section 31705:  " Government Code section 31705 makes it clear that, as a general proposition, the version of CERL existing at the time of retirement is used to determine a member's retirement allowance.  Nothing in CERL suggests this general provision concerning determination of the retirement allowance does not apply to Maffei's situation. Accordingly, we reject SCERS's argument that Maffei is not entitled to the benefits of reciprocity.  Her retirement allowance will be determined by applying CERL as it exists when she retires."   (Maffei, supra, 103 Cal.App.4th at p. 998, italics added.)

Although perhaps immaterial to the resolution of the issues before the Maffei court, we think it significant that the Legislature did not state that a deferred member's

retirement allowance is to be " determined" by the provisions of the CERL that are in effect at the time of the commencement of the retirement allowance, but instead used the narrower and more precise verb " calculated" in section 31705.  (See In re Marriage of Loh, supra, 93 Cal.App.4th at p. 337.)  As discussed above, the use of the verb " calculate" indicates that the purpose of section 31705 is to provide that the formula contained in either the section 31676.1 sequence of tables (§§  31676.01-31676.18) or the section 31664 sequence of tables (§§ 31664-31664.2) that are in effect at the time a member begins to receive his retirement allowance is to be used to calculate the member's retirement.  Section 31705 does not provide that classification of a deferred retiree's prior service " shall be determined" according to the provisions of this chapteras they exist at the time of the commencement of the retirement allowance, and we decline to interpret it as such.

CONCLUSION

                      By its terms section 31469.4 does not authorize retrospective reclassification of prior service and nothing in section 31705 alters application of section 31469.4 according to its express terms.  Although other statutes provide express exceptions to the prospective terms of section 31469.4, those exceptions are not available to appellants.  Thus, the trial court properly granted respondents' motion for summary judgment.

DISPOSITION

                      The judgment is affirmed.  Respondents are entitled to costs on appeal.

CERTIFIED FOR PUBLICATION

BENKE, Acting P. J.

I CONCUR:

        NARES, J.

AARON, J., concurring.

                      Appellants contend that because Government Code^[5] section 31705 provides that the retirement allowances of members on deferred retirement are to be calculated under the provisions of the County Employees Retirement Law (CERL) as they exist at the time the retirement allowance commences, and because section 31469.4 was (or, in the case of appellant Birkenbach, will be) applicable in the County at the time appellants' retirement allowances commenced, section 31705 requires that they be deemed safety members for purposes of the calculation of their retirement allowances.^[6]  Appellants' argument regarding the scope of section 31705 is thus a necessary predicate to their claim for relief in this case.

                      As noted in section V of the majority opinion, section 31705 provides only that the retirement allowance of a member on deferred retirement is to be calculated under the provisions of the CERL as they exist at the time the retirement allowance commences.  Section 31705 does not purport to affect the classification of members as either general or safety members.  The majority's rejection of appellants' argument as to the scope of section 31705 is, in my view, dispositive of appellants' contentions.  The discussion of additional provisions of the CERL in other parts of the opinion is unnecessary.

                      Accordingly, I concur in the result and join in section V of the majority opinion.

AARON, J.

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^[1]                   As with safety members, the CERL provides counties with a series of optional tables for calculating general members' retirement allowances.  (§§  31676.01-31676.18.)

^[2]                   It is undisputed that the phrase " at the time of the commencement of the retirement allowance," in section 31705 refers to the time at which a member on deferred retirement begins to receive a retirement allowance, rather than the time at which the member initially leaves County employment and takes deferred retirement.

[3]                             Section 31678.2 provides counties with " the option of applying an improved benefit formula to service credit earned prior to the adoption of the formula."   (Sen. Rules Com., Off. of Sen. Floor Analyses, Analysis of Sen. Bill 1696 (1999-2000 Reg. Sess.) as amended May 18, 2000, p. 1, italics added.)  However, section 31678.2, subdivision (b), also provides that counties may require members to pay for the increased benefits under the circumstances outlined in the statute.

^[4]                   See footnote 11.

^[5]                   All statutory references are to the Government Code.

^[6]                       Appellants assert, " Unless there is something in the legislative history of section 31469.4 that reveals an intent to contravene the general rule established by section 31705, i.e., an intent to deprive probation officers on 'deferred' status from the benefit of the statute, the plaintiffs are entitled to be classified and treated by [the Association] as 'safety' members."