Tante v. Board of Administration

Opinion

THE COURT.

Proceeding in mandate to require the Board of Administration of the Public Employees’ Retirement System to approve petitioner’s application to retire bn October 1, 1979, with retirement benefits. At the direction of the Supreme Court of the State of California, we granted an alternative writ.

After serving as a California judge for 20 years, James D. Xante (petitioner) retired in June 1975, and on June 16, 1975, became employed as an examiner II for the Public Utilities Commission, and a miscellaneous member in the Public Employees’ Retirement System (PERS),

On the date on which petitioner became employed, section 20981 of the Government Code provided that eveiy state miscellaneous member who attained the age of 67 on or after October 1, 1973, must be retired on the first day of the calendar month next succeeding that in which he or she attained age 67.

In 1978, section 20981 was amended, operative January 1, 1979, to require retirement in the month following the attainment of age 70 instead of age 67. Petitioner will be 67 years of age on September 10, 1979.

[617]

Government Code section 20393 provides that employees credited with five or more years of service are eligible for retirement benefits, while those with less than five years of service are, upon termination of state employment, entitled to the return of accumulated contributions to the retirement system plus interest.

Under Government Code section 20981, as it existed between October 1, 1973 and January 1, 1979, the Board of Administration of the Public Employees’ Retirement System treated the statute as implicitly requiring that employees who were forced to retire before completing five years of service be given a service retirement pension based upon their years of service. Petitioner wishes to take advantage of this practice and to receive a pension, however nominal it may be, rather than a refund of his contributions plus interest. It is worth noting that on October 1, 1979, he will have completed four years, three months and thirteen days of service with the Public Utilities Commission and as a member of PERS. By working another eight months and seventeen days petitioner would qualify for the pension.