Orange County Employees' Ass'n v. Board of Administration

Opinion

BROWN (Gerald), P. J. Orange County Employees’ Association and Alphonso Candella appeal a judgment denying them a peremptory writ of mandate to order respondent Board of Administration, Public Employees’ Retirement System to pay Candella a pension.

Candella began work as a custodian for the City of Anaheim on September 12, 1967. He was a member of the Public Employees’ Retirement System (PERS) and made contributions to it. By June 21, 1971, when he was over 55 years old, he had well over $500 on deposit in the PERS. He was “terminated” on February 24, 1972, after 4 years, 5 months and 12 days. On May 2, 1972, Candella was told he could withdraw his contributions from PERS or leave them on deposit in case he joined again by February 24, 1973. Candella rejected both options and asked for retirement. An executive officer of PERS denied Candella a pension on the ground Government Code section 203931 as amended in 1971 required [827]him to have five years of service. A hearing officer decided section 20393 did not bar Candella from electing retirement under the previous law which required $500 in contributions rather than five years service for eligibility. The board refused to follow the hearing officer’s recommendation and denied Candella’s pension, saying he was not eligible.

At the pre-June 21, 1971, retirement rate actuarially Candella will lose about $7,800 plus contingent widow’s benefits. The trial court denied Candella’s petition for writ of mandate.

The only issue is whether Candella is eligible for a pension.

The board concedes Candella would have been eligible had he applied before July 1, 1971.2 Eligibility before June 21, 1971, was determined by age and amount of contributions (Gov. Code, § 20953); after that date five years of service was substituted for the $500 minimum eligibility requirement (Gov. Code, § 20951).

Government Code section 21203 provides: “. . . after a member has qualified ... as to age and service for retirement for service, nothing shall deprive him of the right to a retirement allowance as determined under this part.” This section, however, does not dispose of Candella’s case. “This sweeping language envelops a legislative purpose of more limited scope. The statutory history indicates that the section serves the objective of ensuring that once an employee has qualified for a pension, no statutory or administrative change in the retirement law can deprive him of his pension rights.” (Phillipson v. Board of Administration, 3 Cal.3d 32, 45 [89 Cal.Rptr. 61, 473 P.2d 765].) Section 103a, State Employees Retirement Act (Stats. 1943, ch. 640, § 23.5) from which section 21203 derived, contained the sentence: “ ‘Such retirement allowance and qualification therefor shall be subject otherwise to the provisions of this act.’ (Italics added.) This language shows the legislative concern . . . other provisions of the retirement act, or future changes in the act, might deprive an employee of a vested pension right. The changes in wording which accompanied the codification of the State Employee’s Retirement Act into the Government Code do not indicate any change in legislative intent.” (Phillipson v. Board of Administration, supra, 3 Cal.3d 32, 45, fn. 13.)