Moore v. Bd. of Admin. of State Emps.' Ret. Sys.

DRAPER, P. J. This appeal concerns computation of service, for retirement purposes, of a court reporter employed by a county which has joined the state employees’ retirement system. Respondent board contends that only time spent in services rendered to and paid for by the county is to be included in the retiring employee’s period of active service. Appellant, the reporter, urges that time he spent in rendition of services to private litigants, for which they paid him directly, must be included in the period which is one of the factors determining the amount of his retirement pay. The trial court accepted the board’s view, and after hearing upon an alternative writ, denied peremptory writ of mandate. The reporter appeals.

Appellant became a court reporter in Santa Clara County in 1929. On July 1, 1945, the county became a contracting agency under the State Employees’ Retirement Law.

This case is governed by the State Employees’ Retirement Law (Gov. Code, §§ 20000-21500). Under it, retirement benefits accrue for “service” rendered by “employees” and is based upon “compensation,” whether the employer be the state or a city or county as a contracting agency.

Service includes that “rendered as an employee ... of ... a contracting agency, for compensation, and only while he is receiving compensation from the . . . contracting agency therefor,” with an exception not here relevant (Gov. Code, § 20801). An employee is “Any person in the employ of any contracting agency, and for the purposes of the State Employees’ Retirement Law, and where a county . . . becomes a contracting agency, the employees and attaches of the superior court” of that county (Gov. Code, § 20012, subd. b). The second phrase is a dangling modifier of highly doubtful meaning, but on the section as a whole, it is clear that retirement benefits go only to those actually in the employ of the county or its superior court. Compensation is “the remuneration paid in cash out of funds controlled by the . . . contracting agency” (Gov. Code, § 20022).

Viewing the statutory scheme as a whole, we conclude that the period to be credited for retirement purposes under [340]the act is necessarily the time spent in rendering services compensated for by the county, exclusive of time spent in rendering services to private litigants who pay the reporter for them. This view is compelled when it is recognized that the retirement system, as to services rendered after July 1, 1945 is funded by contributions of both the employer (Gov. Code, § 20525) and the employee (Gov. Code, § 20605), based upon his compensation. There is, of course, no authorization to the county to make deductions for employee contributions from pay he receives from private employment, and no means for it to compute its own contribution upon sums paid to the employee by private litigants. Many of the considerations which led to a comparable ruling upon another retirement act (McNeil v. Board of Retirement, 51 Cal.2d 278 [332 P.2d 281]), also apply here.