Association of Orange County Deputy Sheriffs v. County of Orange

Opinion

KAUFMAN, J. The Association of Orange County Deputy Sheriffs (Association) appeals from a judgment denying its petition for a writ of mandate to compel the County of Orange1 to allow Association members the right to obtain credit in the county retirement system for federal military service before they were employed by the county.

Association contends on appeal as it did in the trial court that federal law requires Orange County to permit members of its retirement system to obtain [571]credit for prior military service.2 After some procedural complexities not relevant to this appeal, the trial court determined that the allowance of credit for prior military service is not legally required.3 We agree and therefore affirm the judgment.

In support of its contention that the County of Orange is required to allow credit in its retirement system for prior military service Association relies on 10 United States Code section 1336 which reads: “No period of service included wholly or partly in determining a person’s right to, or the amount of, retired pay under this chapter may be excluded in determining his eligibility for any annuity, pension, or old-age benefit, under any other law, on account of civilian employment by the United States or otherwise, or in determining the amount payable under that law, if that service is otherwise properly credited under it.”

What Association fails to appreciate is the significance of the last clause of section 1336: “if that service is otherwise properly credited under it.” What the statute says is that no part of a period of service may be excluded if “that service is otherwise properly credited.” The question is, therefore, whether prior military service is “otherwise properly credited” under the Orange County Employees Retirement System. The answer is that it is not.

Government Code sections 31641.1 and 31641.2 establish a procedure pursuant to which a county employee can purchase additional retirement credit based on prior public service. Section 31641.1 provides in relevant part: “A member who was in public service before becoming a member [of the retirement system] may elect by written notice filed with the board to make contributions pursuant to Section 31641.2 and to receive credit in the retirement system for all allowed public service time.” (Italics added.) But Government Code section 31641.95 provides in pertinent part: “Sections . . . 31641.1 [and] 31641.2 . . . may only be applicable in any county or district on the first day of the month after the governing board of such county or district adopts by majority vote, a resolution providing that those sections shall become applicable in such county or district. Such resolution may limit the applicability of such sections to any one or more of the public agencies as defined by Section 31478.” (Italics added.) And Government Code section 31478 expressly lists as one of the enumerated public agencies the United States of America. Thus, the