Poppa v. Board of Administration

Opinion

FEINBERG, J. The Board of Administration (Board) of the Public Employees’ Retirement System (PERS) appeals from a judgment of the trial [850]court granting Mrs. Poppa special death benefits pursuant to Government Code section 21363 for the death of her husband.1

The decedent was a correctional officer for the Department of Corrections and retired on May 1, 1977. He voluntarily returned to active duty in October 1980 upon the request of prison officials, but continued to receive his monthly retirement allowance. Mr. Poppa died on October 7, 1980, and the Workers’ Compensation Appeals Board determined that his death was “industrial.” Mrs. Poppa received from PERS the lump sum Retired Death Benefit of $500 and Mr. Poppa’s retirement contribution of $8,058.57. She also petitioned for special death benefits under section 21363, which were denied because Mr. Poppa was not a member of PERS at the time of his employment that resulted in his death. After an administrative hearing which upheld PERS’ position, the superior court issued a writ of mandamus ordering PERS to pay her special death benefits provided for by section 21363. We disagree and reverse.

As far as pertinent, section 21363 provides: “special death benefit is payable if the deceased was a patrol, state safety, state industrial or local safety member, if his death was industrial and if there is a survivor who qualifies

The uncontroverted facts show that following his retirement in May 1977, Mr. Poppa never sought reinstatement and continued to draw his monthly retirement allowance.

Respondent argues here, as she did successfully in the court below, as follows: In 1968, former section 21163 (Stats. 1968, ch. 98, § 1, p. 308) was added to provide, in relevant part: “A person retired under this part may be appointed by the appointing power .... Such appointment shall be without reinstatement from retirement or loss or interruption of benefits under this part and no additional rights or benefits under this system shall be extended with respect to such appointment.” (Italics added.)

The same year, section 21163 was repealed. (Stats. 1968, ch. 1150, § 5, p. 2184.) In 1969 the Legislature enacted the present version of section 21150 (Stats. 1969, ch. 1227, § 4, p. 2374, operative Dec. 1, 1969) which provided, as relevant here: “A person who has been retired under this system, for service . . . shall not be employed in any capacity thereafter by the state . . . unless he has first been reinstated from retirement ... or unless such employment, without reinstatement, is authorized . . . . A re