MacIntyre v. Retirement Board of SF

California Court of Appeal Feb 3, 1941 No. Civ. 11394Published

Before: Ward

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Holding. A police officer who is dismissed for misconduct prior to the Retirement Board's final order granting a pension is not entitled to receive that pension, even if the officer had already applied and met the age and service requirements.

Issues

Whether an officer dismissed for misconduct before the Retirement Board acts on a pension application is entitled to the pension.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“The right to a pension is not indefeasible, and an employee, though otherwise entitled thereto, may not be guilty of misconduct in his position and maintain his rights notwithstanding such dereliction of duty.”

“The pension roll is a roll of honor—a reward of merit, not a refuge from disgrace”

“If, prior to an order of the Retirement Board he is dismissed upon charges of conduct unbecoming an officer, he is not entitled to “a pension” as that term is used in the charter.”

WARD, J.

An appeal by petitioners from a judgment denying their application for a writ of mandate to compel the Retirement Board of the City and County of San Francisco to permit their retirement on pension as lieutenants of the police department.

At the time of filing the application, each officer had reached the retirement age, with sufficient years of service to his credit, and had made all necessary contributions to the retirement system pension fund. Three days after the application of MacIntyre, and thirteen days prior to that of

[735]

Mignola, to be retired from active service, a verified complaint setting forth charges of conduct unbecoming an officer, disobedience of orders and insubordination was filed against each petitioner with the Board of Police Commissioners. Both officers were suspended, and tried before the police commission. Bach was found guilty of the charges and dismissed from the department.

The question involved is whether an officer otherwise eligible for a pension and who makes an application therefor, but who is dismissed for misconduct by the police commission prior to final action on his application, is entitled to have such application granted. The sufficiency of the verified complaint, the weight of the evidence or the propriety of the order of dismissal are not involved in this proceeding.

Petitioners contend that their right to a pension vested upon attaining the required age, with necessary years of service, and the payment of proper contributions to the fund; in other words, that the right to pension vests upon the filing of the application and cannot be defeated by dismissal thereafter. They rely primarily upon

O’Dea

Cook,

176 Cal. 659 [169 Pac. 366] and

Kavanagh

Board of Police P. F. Commrs.,

134 Cal. 50 [66 Pac. 36], which deal with pension rights as affected by subsequently enacted legislation. Petitioners’ rights have nothing to do with subsequent legislation, but rather with the question whether such rights have been forfeited as the result of misbehavior.

MacIntyre v. Retirement Board of SF

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WARD, J.

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