Farina v. Town of Emeryville

DRAPER, J. This appeal concerns the amount of retirement pension to which plaintiff is entitled. He joined the police department of defendant city in 1935, and was continuously employed therein until his retirement April 1, 1956. At that time he was over 60 years of age, and had been chief of [102]police for about 10 years. He received a pension of $211.41 per month for three years after his retirement. He then brought this action, asserting that he was entitled to receive half the salary of the active police chief, whose pay from the date of plaintiff’s retirement had risen from $670 to $880 per month. He was awarded money judgment for the excess of this 50 per cent allowance over what had actually been paid to him for three years, and also a declaration that henceforth his retirement allowance should be half of current salary of the police chief. Defendant appeals.

In 1929, Emeryville adopted Ordinance 224, setting up a pension system for police department employees, and incorporating by reference the provisions of the Police etc. Pension Fund Act (Stats. 1889, ch. 62, p. 56). At an election held October 23,1944, the voters of the city adopted Ordinance Number 331, authorizing a contract with the California State Employees’ Eetirement System. This contract, effective January 1, 1945, set up a new retirement system for city employees, including those of the police department. The allowance paid to plaintiff from date of retirement to judgment herein was that fixed by this contract. By Ordinance Number 335, effective April 19, 1945, the city council purportedly abolished the retirement system provided by the 1929 ordinance.

The statute incorporated in the 1929 ordinance provided that a policeman who had served as such for 20 years could, after reaching age 60, retire with an allowance of "one-half of the amount of salary attached to the rank which he may have held in said police department for the period of one year next preceding the date of such retirement” (Stats. 1927, ch. 508, p. 854.) There can be no question that this act entitled one retired thereunder to a pension varying from time to time as the salary of the current incumbent of the same rank fluctuated (Klench v. Board of Pension Fund Commrs., 79 Cal.App.2d 171, 189 [249 P. 46]).

An employee acquires a vested right in a retirement system which is in effect during his rendition of service, and the plan cannot thereafter be changed to his disadvantage unless compensating advantages are afforded (Terry v. City of Berkeley, 41 Cal.2d 698 [263 P.2d 833] ; Wallace v. City of Fresno, 42 Cal.2d 180 [265 P.2d 884]). This rule has been applied to bar change from a fluctuating to a fixed retirement allowance (Abbott v. City of Los Angeles, 50 Cal.2d 438 [326 P.2d 484]; Allen v. City of Long Beach, 45 Cal.2d 128 [287