Pearsall v. Board of Administration

Opinion

LILLIE, Acting P. J. Raymond D. Pearsall appeals from judgment denying petition for writ of mandamus to require the Board of Administration, Public Employees’ Retirement System (PERS), to credit him with four years of military service in the computation of his city retirement benefits.

Appellant served in the United States Army from 1939 to 1968. He thereafter was employed by the City of Pasadena for the period 1968 to 1975, and by reason of such employment was a member of PERS.1 Appellant retired from city service in 1975. Pursuant to the statutory scheme which provides that an employee, when applying for retirement benefits, may elect to receive credit for public service rendered in addition to his current employment, appellant had requested PERS to [127]credit him with a four-year period of military service.2 Appellant was receiving a monetary stipend from the federal government as a result of that service. PERS denied the application. An administrative hearing followed in which the hearing officer recommended that appellant not receive increased benefits as a result of his military service because Government Code section 20809 precludes the granting of public service credit if the employment for which it is sought entitles the applicant to credit in another retirement system supported by public funds. PERS adopted the proposed disposition whereupon appellant sought a writ of mandate in the superior court to compel PERS to reconsider its action.

The sole issue presented by this appeal is whether appellant is entitled to credit for the four years of military service that also forms a partial basis of his right to federal benefits. In urging that Government Code section 20809 does not preclude such credit, appellant points out that the statute merely states that a “person shall not receive credit for the same service in two retirement systems supported wholly or in part by public funds under any circumstance.” (Italics added.) Appellant thus urges that inasmuch as he is receiving only a federal “pension,” receipt of that benefit does not constitute payment from a retirement system within the meaning of the statute so that its prohibition is inapposite to his case. PERS responds with the assertion that appellant’s military “pension” is in substance a retirement benefit that falls within the purview of the statute.

At the outset, we note that the factual predicate of appellant’s claim, to wit, that he is receiving a military “pension,” is not supported by the record. Appellant’s military discharge3 states that he left the Army pursuant to title 10, United States Code, section 3911, which provides for retirement after 20 years of service. As a result thereof, appellant is entitled to a “monthly retired pay” that is computed pursuant to a formula found in title 10, United States Code, section 3991. Neither section attaches the appellation “pension” to the money which appellant receives from the federal government. Thus, to the extent that appellant’s assignment of error is based upon the factual premise that he is receiving a “pension,” it is without merit.