Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. Nos. CGC-02-403550, CPF-02-500548
RIVERA, J.
In this class action for a writ of mandate and declaratory relief, the Veteran Police Officers Association (VPOA) and John J. Lehane, a retired police officer and member of VPOA (collectively, VPOA) appeal from a judgment denying the writ and declaring that retired police officers were not entitled to additional pension benefits attributable to the increased pay rates applicable to new police ranks based upon possession of a POST certificate. VPOA contends that the Charter of the City and County of San Francisco (Charter) requires that the pensions of retired police officers be adjusted to reflect the increase in pay attributable to the newly created POST ranks. It also argues that the City and County of San Francisco’s (City) failure to increase the retirement benefits of VPOA members unconstitutionally impairs the vested retirement benefits of its members, that the City’s Retirement Board breached its fiduciary duty, and that the “poison pill” provision contained in the memorandum of understanding between the City and the San Francisco Police Officers Association (SFPOA) violates the City Charter and is unconstitutional. We affirm.
POST certificates are issued by the California Commission on Peace Officer Standards and Training (POST Commission) pursuant to Penal Code section 13510.1.
I. FACTUAL BACKGROUND
The relevant facts are as follows. VPOA is an organization which includes members of the police department covered under the City’s retirement system. VPOA is serving as the class representative on behalf of certain retired police officers. The SFPOA is a labor organization representing active police officers in their employment relations with the City. The Charter and certain City ordinances set forth the retirement benefits for members of the San Francisco Employee’s Retirement System.
In 1996, the City and the SFPOA reached a memorandum of understanding (MOU) governing wages, hours and working conditions for the City’s police personnel (1996 MOU). In 1997, the City and the SFPOA negotiated an agreement (1997 Reopener Agreement) to establish ranks for police officers based on possession of POST certificates. The terms of the 1997 Reopener Agreement became effective on July 1, 1997. The POST ranks were subsequently approved by the electorate in a Charter amendment. The POST ranks adopted on July 1, 1997, provided additional compensation to police officers based on the possession of an “intermediate” or “advanced” POST certificate. The new ranks reflected “the education and achievement of the officers assigned to those ranks.”
In November 1998, the City electorate approved Proposition A. Proposition A amended the Charter to increase benefits for police officers hired after 1976. In particular, Proposition A amended sections A8.559-1 and A8.586.1 relating to retirement benefits for police officers as follows: “For retirement purposes, any increase in compensation attached to a rank which is based solely upon the possession of a POST certificate, compared to the equivalent rank without a POST certificate, shall be subject to the following limitations: [¶] (a) for possession of the intermediate POST certificate, no more than 4% shall be included in compensation, [¶] (b) for possession of the advanced POST certificate, no more than an additional 2% over the maximum provided in subsection (a), above, shall be included in compensation, [¶] These limits shall apply to any pay increments which are solely attributable to the possession of a POST certificate, including but not limited to premiums or special ranks which may be established in the future and which are solely attributable to the possession of a POST certificate.”
Proposition A further amended the Charter to provide that in order for members to obtain the additional POST compensation in their pensions, they must hold the POST certificate for at least four years and hold the applicable rank for at least one year.
Under the Charter, a member’s retirement allowance is increased or decreased “on the effective date of any legislation fixing the rates of compensation for police officers under section 8.405 of this charter by an amount equal to 50 percent of any increase or decrease, respectively, in the rate of remuneration attached to the rank or position upon which such retirement . . . was based . . . .” Prior to the December 18, 1998, effective date of Proposition A, additional compensation for possession of a POST certificate was not included in the final compensation for calculation of pension benefits.
VPOA initially decided not to challenge Proposition A because it understood that the new POST ranks were an attempt to equalize the future retirement pay of active officers to that enjoyed by retirees in the Tier I plan. In June 2001, however, VPOA asked the City’s Retirement Board to increase the retirement allowances of its members to reflect the increase in remuneration given active officers in possession of POST certificates. The Retirement Board declined to grant VPOA the benefits it was seeking.
Tier 1 refers to the retirement plan for police officers who were hired prior to November 2, 1976. The retirement allowances for these officers are covered under various Charter sections depending on their date of hire. Tier 2 refers to the retirement plan for officers who were hired on or after November 2, 1976.
On January 16, 2002, VPOA filed a complaint seeking a declaratory judgment that the increase in compensation given active police officers as a result of their possession of POST certificates amounted to an increase in “the rate of remuneration attached to the rank” formerly held by retired officers within the meaning of section A8.559-6 of the Charter, thus requiring that the retirement allowances of retired police officers be increased. On the same date, VPOA also filed a petition for writ of mandate requesting that the court direct respondents to increase the retirement allowances for retired police officers under the Charter to reflect the increase in compensation given active officers possessing POST certificates. SFPOA moved to intervene in the action to protect its members’ interests. The court consolidated the actions, granted SFPOA’s motion to intervene, and ordered that VPOA effect joinder by filing amended pleadings seeking class-wide relief for all retired police officers affected in the action. VPOA thereafter filed a first amended petition for writ of mandate and complaint for declaratory relief. SFPOA filed a cross-complaint for declaratory relief supporting the City’s position that any increase in compensation as a result of the POST ranks was not “compensation attached to the rank” within the meaning of the Charter.
Following a court trial, the court denied VPOA writ relief, finding that the additional pay associated with the POST ranks did not attach to the ranks of the retired police officers for purposes of calculating their retirement benefits. The court found in favor of the City and the SFPOA on the parties claims’ for declaratory relief.
II. DISCUSSION
The parties agree that in interpreting the charter provisions in this case, the applicable standard of review is de novo. (Mason v. Retirement Board (2003) 111 Cal.App.4th 1221, 1227 (Mason); United Assn. of Journeymen v. City and County of San Francisco (1995) 32 Cal.App.4th 751, 759, fn. 6.) We construe the charter in the same manner as we would a statute. (Domar Electric, Inc. v. City of Los Angeles (1994) 9 Cal.4th 161, 171 (Domar Electric).) Our objective is to ascertain and effectuate legislative, in this case voter, intent. (Mason, supra, 111 Cal.App.4th at p. 1227; Domar Electric, supra, 9 Cal.4th at p. 172.) “We look first to the language of the charter, giving effect to its plain meeting. [Citation.] Where the words of the charter are clear, we may not add to or alter them to accomplish a purpose that does not appear on the face of the charter or from its legislative history.” (Domar Electric, supra, 9 Cal.4th at p. 172.)
Here, Proposition A specifically amended the definition of the term, “compensation,” under the Charter to address the effect on retirement pensions for active officers of increases in their compensation resulting from the possession of POST certificates. The intent of the voters in enacting the amendment to the Charter was to provide increased pension benefits for active officers hired after November 2, 1976 who enjoyed lower pension benefits than officers hired before that date. The amendment had no effect on the retirement allowances of officers who had already retired. Indeed, Proposition A’s amendments to the Charter painstakingly make this clear. For example, Proposition A amended section A8.559-1 to provide: “For retirement purposes, any increase in compensation attached to a rank which is based solely upon the possession of a POST certificate, compared to the equivalent rank without a POST certificate, shall be subject to the following limitations [¶] . . . [¶] These limits shall apply to any pay increments which are solely attributable to the possession of a POST certificate, including but not limited to premiums or special ranks which may be established in the future and which are solely attributable to the possession of a POST certificate.” (Italics added.) And, the charter was further amended to provide for the calculation of final compensation for retirement purposes, again referring to the possession of a POST certificate: “For purposes of calculation of final compensation, any increase in pay solely attributable to possession of a POST certificate shall be included only if the member possesses the qualifying POST certificate for a period of not less than four (4) years prior to his or her retirement date . . . .”
The trial court concluded, and we agree, that Proposition A precluded VPOA from receiving any increased benefits attributable to POST certificates: “Proposition A is clear on its face, and its provisions may be implemented without resort to rules of statutory construction. Proposition A amended the Charter to authorize new benefits for active police officers. Proposition A specifies how compensation applies for retirement purposes, and it references ranks that would be ‘based solely upon the possession of a POST certificate.’ ” Inasmuch as the voter intent in enacting Proposition A was apparent from its language, the trial court correctly ruled that the retired police officers were not entitled to increased benefits under sections A8.559-1 and A8.586-1 of the Charter. (See Mason v. Retirement Board, supra, 111 Cal.App.4th at p. 1227 [if voter intent can be determined from language of charter, court need not resort to other rules of statutory interpretation].)
Relying on section A8.559-6 of the Charter, VPOA contends that retired police officers were entitled to an increase in their retirement allowances because the POST ranks were simply wage scales included within the existing basic ranks of sergeant, lieutenant, captain, etc. They cite language in section A8.559-6 that retirement allowances “shall be increased . . . on the effective date of any legislation fixing the rates of compensation for police officers under section 8.405 of this charter by an amount equal to 50 percent of any increase . . . in the rate of remuneration attached to the rank or position upon which such retirement . . . allowance was based . . . .” (Italics added.) They assert that the phrase “attached to the rank” is associated with the structure and hierarchy of the police department and refers to the traditional ranks of lieutenant, captain and sergeant, etc.
VPOA’s argument ignores the precise language of Proposition A and the amendments to the Charter. Nothing in the Charter supports its position that retired officers are now entitled to increases in retirement benefits based on salaries received by active officers who have attained the new POST ranks. That the hierarchal structure of officers in the police department is not affected by POST certificates is not the issue.
VPOA’s reliance on Dunham v. City of Berkeley (1970) 7 Cal.App.3d 508 (Dunham) is misplaced. While Dunham involved a “fluctuating” pension plan as here, the new compensation programs for active officers there were effectively based on length of service for which the retirees would have been eligible. In Dunham, the City of Berkeley instituted a new program adding new classifications to the police ranks, giving officers increased pay. In order to be eligible for the new program, the officers were required to participate in departmental training courses or other projects that previously resulted in officers receiving compensating time off. (Dunham, supra, 7 Cal.App.3d at p. 512.) However, anyone who enrolled in the program was given full credit for years in service as “qualifying training.” (Ibid.) Plaintiffs, who retired prior to the initiation of the new program, claimed that they were entitled to increased pension benefits based on the new programs. The court concluded that the new classifications were not separate ranks but instead a restructuring of ranks based on longevity, as evidenced by the “ ‘grandfather clause’ ” that “may reasonably be termed a system of general pay raises.” (Id. at p. 515.) The court held that although not “every incentive program that a city might establish [would] necessarily result in an increase in the fluctuating pensions,” under this program, the retirees were entitled to increased pension benefits because otherwise “the purpose of the fluctuating pension system in maintaining parity between retired and active employees” would be defeated. (Id. at p. 516.)
In a fluctuating plan, a retiree’s benefits are increased or decreased based on the compensation paid to active officers having the same rank. (Dunham, supra, 7 Cal.App.3d at p. 511; Kreeft v. City of Oakland (1998) 68 Cal.App.4th 46, 48 (Kreeft).) In a “fixed” pension system, retirement benefits are based on the compensation paid to a retiree in a defined period prior to retirement. (Ibid.)
Here, unlike Dunham, in order for officers to qualify for increased compensation, they are required to meet certain educational and training requirements; mere longevity does not merit POST certification. For example, the minimum qualifications for an intermediate POST certificate are 15 college units, eight years of law enforcement experience and 15 training points. Twenty classroom hours of POST certified police training equal one training point. If an officer has additional college units or a college degree, he may obtain a POST certificate with fewer years of law enforcement experience, e.g., an officer with a baccalaureate degree needs only two years of law enforcement experience to qualify for a POST certificate. The minimum requirements for an advanced POST certificate are 30 college units, 12 years of law enforcement experience and 30 training points. For both certificates, it is possible to qualify for certification by substituting additional college units or degrees for years of law enforcement training. While POST certificates were first authorized by the POST Commission in 1966, the education requirements have changed to require an additional 15 units of college credit, for a minimum of 30 college units, for an advanced POST certificate. The evidence established that the prior police ranking system did not necessitate any college education for advancement through the ranks. Nor was there a requirement under the prior system that officers hold an intermediate or advanced certificate for advancement. Moreover, in Dunham, there was evidence that the retirees had undergone the same training for which the active officers were now being compensated, under the new program, with extra pay. (Dunham, supra, 7 Cal.App.3d at p. 515.) Thus, the retirees would have received the same pay had they been employed under the new program. The Dunham court reasoned that the plaintiff retirees should not be penalized when they did not have the choice between time off and extra pay now available to the active officers. (Ibid.) These considerations are not present here where the evidence was lacking that the retirees would have been eligible for the new POST ranks.
We deny VPOA’s request for judicial notice of the “Fall 2006 Course Descriptions and Schedules” of the San Francisco Law Enforcement Regional Training Facility. The schedules were not before the trial court and are nonetheless irrelevant inasmuch as training points and college units are required for POST certification. (See Brosterhous v. State Bar (1995) 12 Cal.4th 315, 325-326 [appellate court may decline to take judicial notice under Evidence Code sections 452 and 459 of a matter which should have been presented to the trial court in the first instance].)
VPOA points out that many retired officers held POST certificates. Yet the record is far from clear as to the number of retirees who held the certificates, whether they held the requisite POST certificates, and their length of service with the POST certification. The record contains two charts setting forth the numbers of officers from 1966 to 1990 who were current or former employees who held POST intermediate and advanced certificates, and declarations from two retired officers who held advanced certificates for more than ten years prior to their retirement. The record also contains a POST certificate issued to plaintiff Lehane for meeting the requirements of advanced officer training after taking an examination given by POST. This certificate, however, issued for completing an advanced officer course, does not constitute an Advanced POST certificate.
VPOA next contends that because seniority, promotions, and officer duties are not dependent on POST status, that the POST ranks are not bona fide ranks but simply wage scales. Again, this contention ignores the fact that the retirees have not shown they met the criteria for the POST certificates, and hence, the POST pay. The courts which have found that premium pay increases “ ‘attached’ to a rank” involve situations where the retiree met the criteria necessary to receive the additional pay. (See Kreeft, supra, 68 Cal.App.4th at p. 60 and cases cited therein.)
Kreeft is instructive. There, the court held that federal Fair Labor Standards Act (FLSA) overtime pay was not compensation attached to the rank even though firefighters typically work overtime as part of their normal schedule. (Kreeft, supra, 68 Cal.App.4th at p. 53.) Based on the evidence before it, the court determined that FLSA premium pay was dependent upon an individual’s actual work hours and not simply on which rank the employee held. (Id. at p. 55.) Thus, it was not attached to the rank because attachment requires that “the employee . . . be entitled to the compensation by virtue of the rank, and not his individual efforts over and above what are required to obtain the rank.” (Id. at pp. 57-58.)
Here, as in Kreeft, the evidence demonstrates that officers were entitled to POST compensation only upon completing certain education, training, and service requirements. The new POST ranks required intermediate or advanced certification for advancement through the ranks unlike the prior rank system. The record fails to demonstrate that the retired officers met the requirements for the new ranks.
VPOA further contends that the City’s failure to increase their retirement allowances commensurate with the increase in compensation given active officers possessing POST certificates, unconstitutionally impairs the vested retirement benefits of its members.
It is well settled that public employees have vested contractual rights to pension benefits that accrue upon acceptance of employment. (Betts v. Board of Administration (1978) 21 Cal.3d 859, 863.) “An employee’s contractual pension expectations are measured by benefits which are in effect not only when employment commences, but which are thereafter conferred during the employee’s subsequent tenure.” (Id. at p. 866.)
For example, in Abbott v. City of Los Angeles (1958) 50 Cal.2d 438 (Abbott), the court was faced with a city charter amendment that changed the pension rights of retirees from a fluctuating (based upon salaries currently being paid) to a fixed plan where benefits were determined at the time the pension was granted. (Id. at p. 445.) The court held that the new plan adversely affected the pension rights of the retirees and was unreasonable and invalid as applied to the retirees. (Id. at pp. 453-455.) The court acknowledged that “[t]o be sustained as reasonable, alterations of employee’s pension rights must bear some material relation to the theory of a pension system and its successful operation, and changes in a pension plan which result in disadvantage to employees should be accompanied by comparable new advantages.” (Id. at p. 448.)
Similarly, in City of Long Beach v. Allen (1956) 143 Cal.App.2d 35, the court considered the effect of a city ordinance which changed the conditions and increased the salaries for particular ranks of police officers. The result was to downgrade the positions of retired police officers whose pensions had been based on the top salary paid to current employees holding the same position they had held one year prior to their retirements. (Id. at p. 40.) The court held that the ordinance violated the vested contractual rights of the retired officers because, under the terms of their contract with the city, they had already performed the required services and earned and acquired the seniority to justify benefits based on the higher salary now paid to officers at the highest salary for their particular rank. (Id. at p. 40-41.)
Here, by contrast, VPOA members have not shown that they met the criteria for the new ranks. Proposition A did not modify the pensions of VPOA’s members, but offered a new pension system to current officers. The pension benefits of retired officers were not implicated, they were merely not entitled to receive higher pensions based on new salaries afforded current officers with POST certificates. They, however, continued to be entitled to cost of living increases in their pensions under section A8.559-6 of the Charter. As the City points out, the vested rights doctrine inevitably results in officers receiving different pensions depending on their respective years of service and retirement. Indeed, one of the purposes of Proposition A was to equalize benefits between officers hired prior to 1976 and those hired after 1976. (See Mason, supra, 111 Cal.App.4th at p. 1227 [court ascertains voter intent from language of charter provision].) The courts have acknowledged that an enhanced retirement package may be offered to active officers in order to attract and hold competent employees and “ ‘induce competent persons to enter and remain in public service.’ ” (Abbott, supra, 50 Cal.2d at p. 461.)
VPOA suggests that its members’ pensions have been modified to their detriment. To the contrary, their pensions have not been modified at all. While they are not entitled to new increases based on the premium pay attributable to the new POST ranks, they continue to be entitled to all cost of living increases based on salaries attached to the rank or position of active officers upon which their retirement was based. (Charter, § A8.559-6.) The Charter also contains a provision protecting the vested retirement benefits of VPOA members. Specifically, section A.8590-6 provides that “[n]o agreement reached by the parties and no decision of the arbitration board shall reduce the vested retirement benefits of retirees or employees of the . . . police department . . . .” Here, as we have explained, there has been no reduction in benefits.
VPOA further contends that the City’s Retirement Board breached its fiduciary duty by treating police officers differently than firefighters. It points to a stipulated judgment in an action between The Retired Firemen and Widows Association of the San Francisco Fire Department and the City’s Retirement Board in which the City agreed to include training and education achievement pay in the retirement allowance adjustments due to retired firefighters who retired on or after July 1, 1999.
There is no merit to this contention. The applicable MOU between the City and the members of the fire department has provided for a training and education premium since 1999. Under the MOU, any member who retired after July 1, 1999, and had satisfied certain length of service and annual training requirements was entitled to the premium. The fire department considered the regular in-service training required of all active members to satisfy the annual training requirement. While obtaining an associate degree or a Bachelor of Arts degree could qualify an officer for the premium, simply reaching a 10th year of service without any additional education qualified a member for the premium. Because the firefighters were entitled to the pay premium simply after 10 years of service and by virtue of performing their regularly assigned duties, the City’s Retirement Board agreed to treat the pay as attached to the rank for purposes of calculating retirement benefits. This is in stark contrast to the case here where active officers are required to attain certain education levels and meet particular training requirements in order to qualify for the newly created ranks. Longevity, in and of itself, unlike the case with the firefighters, does not merit the premium pay associated with the new ranks.
Finally, VPOA contends that the provision in the 1997 Reopener Ordinance, providing that a successful judicial challenge to the POST rank system would invalidate increases in retirement allowances for retirees and revert the pay of active officers to that previously provided prior to the creation of the new ranks, is unconstitutional. Specifically, the provision stated, “[s]hould any final judgement by superior court or court of competent jurisdiction at any time adjudge and decree that retirees are entitled to an adjustment of their allowances as a result of the provisions of the re-opener negotiations, then the provisions of the re-opener agreement which creates the new ranks and sets a new base wage for such ranks to be included within the rate of remuneration for pension calculation purposes shall be null and void, and shall cease immediately. The parties further hereby agree that the base pay rate and premium eligibility of each appointee to the new ranks shall retroactively revert to the base rate of pay and premium eligibility provided by the Memorandum of Understanding prior to the creation of the new ranks.” VPOA has described this provision as the “poison pill.” In light of our disposition upholding the trial court’s judgment that the POST pay does not attach to the rank for purposes of calculating the retirement allowances of VPOA members, we need not reach VPOA’s claim or the additional contentions raised by the parties.
III. DISPOSITION
The judgment is affirmed. The parties are to bear their own costs on this appeal.
We concur: RUVOLO, P.J., REARDON, J.