Opinion
B325890
09-05-2024
SUSAN GALLOWAY, Plaintiff and Appellant, v. BOARD OF ADMINISTRATION OF CALIFORNIA PUBLIC EMPLOYEES' RETIREMENT SYSTEM et al., Defendants and Respondents; CITY OF SANTA MONICA, Real Party in Interest and Respondent.
Complex Appellate Litigation Group, Jens B. Koepke and Frank A. McGuire, for Plaintiff and Appellant. Matthew G. Jacobs, General Counsel, Renee Salazar, Deputy General Counsel, Elizabeth Yelland, Assistant Chief Counsel, and Preet Kaur, Senior Attorney, for Defendants and Respondents. Liebert Cassidy Whitmore, Steven M. Berliner and Alex Y. Wong, for Real Party in Interest and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. SS029320, Craig D. Karlan, Judge. Affirmed.
Complex Appellate Litigation Group, Jens B. Koepke and Frank A. McGuire, for Plaintiff and Appellant.
Matthew G. Jacobs, General Counsel, Renee Salazar, Deputy General Counsel, Elizabeth Yelland, Assistant Chief Counsel, and Preet Kaur, Senior Attorney, for Defendants and Respondents.
Liebert Cassidy Whitmore, Steven M. Berliner and Alex Y. Wong, for Real Party in Interest and Respondent.
KIM, J.
I. INTRODUCTION
Susan Galloway (Galloway) is a former City of Santa Monica (the City) employee who worked as an airport security guard (ASG) at the Santa Monica Municipal Airport. She appeals from the trial court's judgment denying her petition for writ of administrative mandate that sought to overturn the Board of Administration of California Public Employees' Retirement System's (the Board) decision denying her request to reclassify her employment status from "local miscellaneous member" to "local safety member." We affirm.
The California Public Employees' Retirement System, commonly referred to as CalPERS, is a "prefunded, defined benefit pension plan for state employees and employees of participating local public agencies" that was established by the Public Employees' Retirement Law (the PERL). (Hale v. California Public Employees' Retirement System (2022) 82 Cal.App.5th 764, 772.)
Reclassification from local miscellaneous member to local safety member would "substantially" enhance her retirement benefits. (Riverside Sheriffs' Assn. v. Board of Administration (2010) 184 Cal.App.4th 1, 4 (Riverside).)
II. BACKGROUND
A. Galloway Requests to Have the Board Reclassify Her Employment Status
In January 1985, Galloway began working for the City as an ASG at the Santa Monica airport. Throughout Galloway's employment with the City, her service was reported to the Board as local miscellaneous member.
We will set forth evidence concerning an ASG's job duties below in our discussion of Galloway's claim on appeal.
In a letter dated May 11, 2000, Galloway requested the Board reclassify her employment status from local miscellaneous member to local safety member. Galloway stated she intended to apply for an industrial disability retirement in the near future. The Board declined to reclassify the ASG position as a local safety member position.
In October 2000, Galloway retired from her employment with the City. In a letter dated October 27, 2000, the City informed Galloway that it had submitted a disability retirement application to the Board on her behalf.
In a letter dated May 14, 2015, Galloway again requested the Board reclassify her employment status from local miscellaneous member to local safety member. The Board denied the request, stating that because the principal duties of the ASG position did not constitute active law enforcement, the position did not qualify as a local police officer under Government Code section 20425 .
All further statutory references are to the Government Code unless otherwise stated.
On June 22, 2018, Galloway filed with the Board an appeal of its denial of her request to reclassify her employment status. In a letter dated July 19, 2018, the Board rejected Galloway's appeal, stating she was not entitled to an administrative appeal. In a letter dated February 20, 2019, the Board reaffirmed to Galloway that her ASG position was properly classified as a local miscellaneous member position, but also advised her that she could appeal its decision and her appeal would be set for a hearing before the Office of Administrative Hearings.
B. Galloway's Administrative Appeal and Hearing
Beginning on October 23, 2019, an administrative law judge heard Galloway's appeal of the Board's denial of her request to reclassify her employment status.
1. ASG and City Police Officer Job Descriptions
Among other evidence, the administrative law judge admitted three job descriptions the City issued for the ASG position-dated March 16, 1982, June 19, 1985, and January 29, 1991-that covered the time the City employed Galloway as an ASG. It also admitted a job description the City issued for the police officer position during the time the City employed Galloway as an ASG. The March 16, 1982, ASG job description described the position and its typical duties as follows:
"DEFINITION: Under minimal supervision, patrols Municipal Airport to ensure against violation of City ordinances. Performs related duties as required.
"TYPICAL DUTIES:
"Patrols airport in emergency vehicle.
"Monitors presence of vehicles and persons in airport.
"Checks, secures and opens gates.
"Uses two-way radio to check in regularly with Santa Monica Police Department, and call for assistance when needed.
"Writes incident reports on irregular occurrences and prepares daily log.
"Issues citations for violations of City ordinances.
"Reports unsafe or unusual conditions of airport grounds or buildings.
"Collects tie-down fees.
"Operates airport fire crash rescue vehicle in aircraft emergencies.
"May log in and log out arriving and departing aircraft."
The June 19, 1985, ASG job description described the position and its typical duties as follows:
"DEFINITION: Under moderate supervision, patrols Municipal Airport to ensure against violation of City ordinances. Performs related duties as required.
"TYPICAL DUTIES:
"Patrols Municipal Airport in vehicle.
"Monitors operations and activities at Municipal Airport.
"Checks, secures and opens gates.
"Monitors compliance with Airport ordinances and regulations, informing Police department and Airport Director of violations.
"Maintains log and writes incident reports.
"Maintains field office and tiedown areas in a clean and orderly fashion.
"Reports unsafe or hazardous conditions.
"Collects tiedown fees, receives cash and issues receipt.
"Informs public of Airport ordinances and regulations.
"Registers visiting aircraft.
"Responds tactfully and courteously to public inquiries." The January 29, 1991, ASG job description described the position and its major duties as follows:
"JOB SUMMARY: Provides general security services for airport facilities. Performs facility inspections of the airside and landside of the airport. Monitors and documents adherence to noise abatement regulations. Handles parking and tie downs of transient aircraft. Performs related duties as assigned.
"MAJOR DUTIES:
"Patrols all areas of airport in marked vehicle to check for irregularities and unauthorized use of airport. Patrols at night by inspecting airport buildings and grounds for unusual circumstances.
"Depending on assigned shift, opens and closes gates of airport. Secures designated areas as required. Issues citations to drivers and pedestrians for Santa Monica Municipal Code violations.
"Performs facility inspections on a regular basis including runways, taxiways, ramps and lighting. Notes discrepancies and reports safety concerns to Ai[r]port Operations Manager. Maintains a detailed log and makes numerous operational reports.
"Monitors police, air and ground radio calls. Responds to calls when necessary. Responds to emergencies when needed. Makes calls to other emergency personnel and secures area of emergency situations. Cooperates with Federal Aviation Administration (FAA) or other local state or federal agencies in responding to security situations.
"Monitors outgoing airplanes. Enters airplane data and departure times onto a log and into a computer. Maintains noise abatement records on all departures.
"Inspects transit aircraft tie down areas. Monitors and logs over night [sic] aircraft use of tie down areas. May notify users of fees and collects fees. Registers visiting aircraft.
"Provides a wide variety of information to users of the airport. Receives inquiries from citizens. Answers inquiries or refers calls to appropriate personnel.
"Follows all applicable safety rules and regulations[.] "Performs other duties as assigned."
The job description for a City police officer described the position and its typical duties as follows:
"DEFINITION: Under moderate supervision, patrols an assigned area to enforce laws, maintain order, prevent crime and protect life and property; performs investigation work in the prevention and detection of crime. Performs related duties as required.
"TYPICAL DUTIES: "Patrols an assigned area of the city by car, foot, or three-wheel motorcycle.
"Responds to emergencies as directed by radio.
"Investigates unusual or suspicious conditions.
"Directs traffic at congested areas and investigates traffic accidents.
"Makes arrests, issues citations, investigates vice conditions, and serves subpoenas and warrants.
"Analyzes facts, clues, and evidence to determine the identity and whereabouts of violators.
"Provides information and assistance to the public.
"Questions suspects and guards prisoners.
"Notes and reports hazardous conditions.
"Searches for stolen property and lost persons.
"Writes reports, prepares evidence, and appears in court."
2. Galloway's Witnesses
Galloway testified that when she began working at the Santa Monica airport as an ASG in 1985 she reported to the airport supervisor. Her job duties included patrolling the airport to make sure it was in good condition; locking and unlocking buildings; unlocking gates; patrolling the runway for foreign object debris; answering calls from the federal aviation control tower to disperse birds on the runway; pulling over vehicles and writing citations for moving violations; answering burglary and suspicious persons calls; monitoring the "Santa Monica frequency" for information about potential incidents where she could assist; coordinating with the airport's fire department about inbound airplanes that were having trouble; responding to airplane crashes; responding to runway incursions-persons, dogs, and vehicles crossing the runway; assisting when the president of the United States landed at the airport; and performing criminal investigations.
Galloway was never physically assaulted while performing her job and never used force on any person. She was not trained to and did not serve subpoenas or transport prisoners. She never conducted a search pursuant to a warrant.
Galloway's uniform from about 1985 to 1989 included a badge that said, "'Airport Santa Monica Police, Deputy.'" Her uniform from about 1989 to 1992 included a badge that said, "'Officer, Santa Monica Security'" and a patch that said, "'Santa Monica Police'" with a rocker that said, "'Airport Security.'" Her uniform from about 1992 to 2000 included a badge that said, "'Airport Security'" and "'Santa Monica Police'" and a patch that said, "'Santa Monica Police'" with a rocker that said, "'Airport Security.'"
A "rocker" is "(1): any of the curved stripes at the lower part of a chevron worn by a noncommissioned officer above the rank of sergeant [or] (2): the curved stripe at the upper part of a chevron worn by a chief petty officer." (Meriam-Webster Dict. Online, <https://www.merriam-webster.com/dictionary/rocker#:~:text=(1),chief%20petty%20office > [as of Sept. 3, 2024], archived at <https://perma.cc/SF4G-T86D>.)
In 1992, the City went through a reorganization and the ASGs were assigned to the police department. Galloway was then supervised by a police sergeant. As a result of the reorganization, the ASGs received training on detention and arrest procedures from the City Attorney. In that training, the City Attorney told them they had the "ability" to detain and arrest. Galloway also completed the basic POST training with the Orange County Sheriff's Department and a firearms course at the City's Police Department range.
A training course certified by the Commission on Peace Officer Standards and Training (POST). (See Pen. Code, § 13500 et seq.; Cal. Code Regs., tit. 11, § 1000 et seq.; Hollowell v. Superior Court (1992) 3 Cal.App.4th 391, 395.)
Leonardo Iniguez testified that he began his employment with the City as an ASG in 1993 or 1994, and was a current public service officer (PSO). The ASG position had both airport operations and security functions. On the operations side, Iniguez logged aircrafts arriving at and departing from the airfield, monitored aircraft noise levels, opened and closed buildings, and performed "tie-down" audits-persons rented tiedowns from the City and he checked whether aircrafts were parked in the correct spaces. He also collected rent for tie-down and office spaces.
In the mid to late 1990s the ASG job title changed to "airport services officer." There were no significant changes in the job's duties. In 2015, the title changed to PSO.
On the security side, Iniquez investigated suspicious persons and responded to burglar alarms. While on patrol, Iniguez looked for airport Municipal Code violations. Sometimes he responded to aircraft crashes. He testified, "Mainly we did a lot of patrolling and monitoring aircraft. We did a lot of logging of aircraft. But we were also concerned with people driving onto the runway, entering the airport, trespassing onto the airport and things of that nature." Iniguez's work truck was marked "Santa Monica Police" and was equipped with police and control tower radios.
Iniguez also interacted with federal agencies. He interacted with the FAA about aircrafts he suspected were involved in smuggling, the National Transportation Safety Board about aircraft accidents or incidents, the Secret Service about presidential visits, and Homeland Security about smuggling and human trafficking.
Iniguez was not authorized to search persons or to search vehicles during traffic stops, but did conduct inventory searches of impounded vehicles. He did not serve search or arrest warrants. If Iniguez saw criminal activity he was not expected to take into custody or arrest suspects. Instead, he was to call for a police officer to help. The same procedure applied when persons refused to sign citations and were to be placed under arrest.
Iniguez was trained on and used the CLETS system (the California Law Enforcement Telecommunications System) to run license plates. He participated in POST training on writing reports and airport security concerning smuggling, suspicious aircrafts, and terrorism. He was not required to qualify with a firearm as part of his job duties and did not regularly have access to a firearm. Occasionally, when his truck was out of service, the City would provide him a vehicle that was equipped with a shotgun. The City did not give him shotgun training.
Iniguez wrote incident and crime reports on forms marked "'Santa Monica Police Department.'"
The City issued Iniguez a utility belt. On his belt, Iniguez carried handcuffs that he purchased. He used the handcuffs twice during his employment. He also carried mace or pepper spray. The other ASGs also carried handcuffs and pepper spray. Neither he nor the other ASGs carried a sidearm.
Retired Los Angeles County Sheriff's Department Lieutenant Richard Lichten testified as an expert witness. According to Lichten, police officers perform many of the same duties as security guards. The positions differ in that police officers can arrest persons for felonies and misdemeanors not committed in their presence and perform searches and seizures whereas security guards are civilians with no police power and do not respond to police calls. Police are in the prevention and apprehension business-they have a duty to act on what they see-and security guards are in the prevention business-they are to observe and report.
Based on the facts of this case as presented to him, Lichten believed the majority of Galloway's duties were consistent with those of a police officer and not a security guard. Galloway's badge and patch said, "Santa Monica Police"; she appeared to wear a police uniform; she drove a patrol vehicle with blue and red lights; she and her colleagues were referred to as "'law enforcement officers'" in materials he reviewed; she received law enforcement training, including firearms training; she was a sworn officer; she was supervised by a police sergeant; she was covered by the Peace Officers Bill of Rights; she wrote incident reports and citations and appeared in court on the citations; she monitored and responded to the police radio; she responded to aircraft crashes; and she secured access to the airport.
Before she began her employment as an ASG, Galloway signed an "Oath or Affirmation of Allegiance for Public Officers and Employees" required of all public officers and employees. (Cal. Const., art. XX, § 3.) The oath was administered by an airport supervisor and not a police department official.
Lichten explained that although Galloway was not issued a firearm as part of her job, not all active law enforcement officers were required to carry a firearm. Issuing a citation was "an arrest of sorts."
3. The City's Witnesses
John Grammatico testified he was a current lead PSO for the City. In 1997, he worked for the City part-time as an ASG. In 1998 or 1999, the City hired him as a permanent ASG.
In a typical day, Grammatico would patrol the airport. He wrote down tail numbers of aircrafts not normally at the airport, made sure the airport's perimeter fence was intact, and secured buildings. The "few times that somebody would actually be in violation of the [M]unicipal [C]ode, [he] would contact them and if need be call [City] police to assist." Grammatico issued a Municipal Code citation once every month or two and a few parking citations a month. He spent between five and 10 percent of his day on Municipal Code enforcement.
An important part of Grammatico's job was observing and removing foreign object debris from the runway. Grammatico also removed debris from surface roads on the runway's perimeter.
Grammatico responded to aircraft crashes, reporting information about the crashes to dispatch and providing victim assistance if possible. One of the five or six aircraft crashes he responded to resulted in a fire. He did not participate in extinguishing the fire.
Grammatico did not perform criminal investigations and was not allowed to arrest persons for Penal Code violations or physically detain persons for Municipal Code violations. If a Municipal Code violator attempted to flee, he was not allowed physically to prevent them from leaving-he was to call the police department dispatcher and provide a description of the perpetrator.
Grammatico also was not allowed to search persons or vehicles or seize property. He was not expected to "take down" combative suspects, engage in apprehensions, or physically engage with suspects. He was unaware of an ASG ever physically engaging with a suspect.
The ASGs did not respond to burglar alarm or suspicious person calls-dispatch would send police officers. If Grammatico heard such a call, he would go to the vicinity to provide directions to the arriving officers. Apart from airplane crashes, ASGs were never dispatched to known dangerous situations-"dispatch knew that airport security guards were not sworn, were not armed."
If Grammatico came upon a crime in progress, he had to call for a police unit. He emphasized to trainees that ASGs were not sworn police officers and did not have the same equipment as sworn police officers so they should keep their distance in such situations and call dispatch and describe the incident.
Grammatico had two incidents during his employment where a person tried to strike him.
Grammatico had a badge that said, "Santa Monica Police." His uniform patch was the same as the patch on police officer uniforms. He explained that all "civilian units," including the ASGs and parking enforcement, had the same uniform patch as police officers. The civilian unit uniforms additionally had a rocker beneath the patch that identified the specific unit. Grammatico was issued pepper spray which he could use only if he was afraid for his or another person's safety or life.
Edward Cardona testified he was a current PSO supervisor. He had worked at the Santa Monica Municipal Airport for about a year and knew the day-to-day activities of the employees he supervised.
Cardona's uniform had a patch that displayed the City police department shield. Beneath the patch was a PSO rocker.
PSOs were considered civilian employees. They were not allowed to take persons into custody for Penal Code violations, transport suspects to jail, physically restrain suspects, perform investigations of any kind, seize property, or conduct searches of persons or their vehicles unless the vehicle was to be impounded. PSOs did not have the authority to arrest suspects and were not expected to "take down" combative suspects, to use physical force to defend others, or to physically engage with suspects. They did not serve subpoenas.
There were no crimes where a PSO could intervene. Instead, the PSO was to use his radio to broadcast information about the incident. If a PSO encountered a dangerous situation or a crime in progress, the PSO was to retreat to a safe location and observe and report on the incident.
PSOs were required to complete POST training. They were not issued a firearm. They were not issued or expected to carry a baton or handcuffs. They were issued pepper spray.
Cardona had never worked with Galloway and did not know her duties when she worked for the City.
After the parties presented evidence and submitted posthearing briefs, the administrative law judge issued a proposed decision denying Galloway's appeal. It ruled that the ASG position's duties did not meet section 20425's definition of a local police officer. The administrative law judge found that Galloway was not a police officer and her "job duties differed from the 'active law enforcement service' of police officers in that: (1) she did not and was not required to complete[] the POST basic academy training; (2) she was not required to qualify for the use of any firearms; (3) she was not authorized to carry a weapon, other than pepper spray; (4) she was not required to engage in physical confrontations with suspects; (5) she did not respond to police dispatches or to crime scenes; (6) she did not make any arrests where she took the suspect into custody; (7) she did not transport suspects to jail; (8) she did not guard suspects; (9) she did not engage in pursuits of suspects by foot or car[;] (10) she did not serve any search or arrest warrants; (11) she did not enforce criminal laws outside the premises of the Airport; and (12) she did not conduct any criminal investigations."
The administrative law judge accorded Cardona's testimony little weight because the City did not employ him while Galloway was an ASG and he had no personal knowledge of her job duties and activities as an ASG.
Galloway requested the Board to vacate the administrative law judge's proposed decision. The Board adopted as its own the administrative law judge's proposed decision.
C. Galloway's Petition for Writ of Administrative Mandate
On January 5, 2021, Galloway filed a "Verified Amended Petition for Peremptory Writ of Mandate to Set Aside Administrative Decision and Direct Respondent to Reclassify Petitioner From Local Miscellaneous to 'Local Safety' Member" (petition for writ of administrative mandate) asking the trial court, in part, to direct the Board to reclassify her employment status from local miscellaneous member to local safety member retroactive to the first day of her employment. She contended she qualified for local safety member status under section 20425 because: "(1) [s]he was an employee of a police department; (2) her principal duties were not those of a telephone operator, clerk, stenographer, machinist, mechanic, or otherwise; and (3) [s]he was engaged in active law enforcement service."
The trial court reviewed the evidence presented at the administrative hearing and, using its independent judgment, denied Galloway's petition for writ of administrative mandate. It explained: "The Court is mindful that ASGs were given a badge, were authorized to carry handcuffs, and wore a uniform and drove a vehicle clearly displaying the words 'Airport' and 'Santa Monica Police.' Neverth[e]less, the evidence presented does not support the conclusion that [Galloway] qualifies as a safety member pursuant to her job as an ASG. [Galloway's] work did not include work that primarily pertained to the active investigation and suppression of crime, nor the arrest and detention of criminals. While [Galloway's] work clearly provided a safety function, [Galloway] does not properly qualify as a 'safety member' because her work was not that of active law enforcement service. Moreover, though [Galloway] may have performed work common to those of a police officer on occasion, such as responding to an airplane crash . . ., this does not equate [Galloway's] job to that of a police officer or other safety members identified in . . . section 20371."
The trial court did not expressly refer to Cardona's testimony in its ruling.
III. DISCUSSION
Galloway contends the trial court erred when it denied her petition for writ of administrative mandate based on its ruling that her duties as an ASG did not qualify as "active law enforcement" under section 20425. The court did not err.
A. Standard of Review
"Section 1094.5 of the Code of Civil Procedure governs judicial review by administrative mandate of any final decision or order rendered by an administrative agency. A trial court's review of an adjudicatory administrative decision is subject to two possible standards of review depending upon the nature of the right involved. (Code Civ. Proc., § 1094.5, subd. (c).) If the administrative decision substantially affects a fundamental vested right, the trial court must exercise its independent judgment on the evidence. [Citations.] The trial court must not only examine the administrative record for errors of law, but must also conduct an independent review of the entire record to determine whether the weight of the evidence supports the administrative findings. [Citation.] If, on the other hand, the administrative decision neither involves nor substantially affects a fundamental vested right, the trial court's review is limited to determining whether the administrative findings are supported by substantial evidence. [Citations.]" (Wences v. City of Los Angeles (2009) 177 Cal.App.4th 305, 313.)
With the parties' agreement, the trial court independently reviewed the Board's decision. On appeal, neither party contends the court applied the wrong standard. (See Molina v. Board of Administration, etc. (2011) 200 Cal.App.4th 53, 60 (Molina) [plaintiff had a "fundamental, vested right to receive a pension benefit in an amount specified by law"].)
We review the trial court's factual findings for substantial evidence, upholding them unless they are "so lacking in evidentiary support as to render them unreasonable." (Molina, supra, 200 Cal.App.4th at p. 61 (internal quotation marks and citations omitted).) "We may not reweigh the evidence, but instead are bound to consider the facts in the light most favorable to [the Board], giving it every reasonable inference and resolving all conflicts in its favor." (Ibid.) "Our sole inquiry is 'whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted,' supporting the court's finding. [Citation.] 'We must accept as true all evidence . . . tending to establish the correctness of the trial court's findings . . ., resolving every conflict in favor of the judgment.' [Citation.]" (Sabbah v. Sabbah (2007) 151 Cal.App.4th 818, 822-823.)
We review legal questions de novo. (Molina, supra, 200 Cal.App.4th at p. 61.) However, we accord great weight to the Board's interpretation of the PERL unless it is clearly erroneous. (City of Sacramento v. Public Employees Retirement System (1991) 229 Cal.App.3d 1470, 1478.)
B. Analysis
Under the PERL, "employees may be eligible for retirement benefits either as 'local miscellaneous members' or as 'local safety members.'" (County of Sutter v. Board of Administration (1989) 215 Cal.App.3d 1288, 1293.) Section 20420 defines "'[l]ocal safety member'" to include all "local police officers ...." Section 20425 provides, in relevant part, that "'[l]ocal police officer' means any officer or employee of a police department of a contracting agency which is a city, except one whose principal duties are those of a telephone operator, clerk, stenographer, machinist, mechanic, or otherwise and whose functions do not clearly fall within the scope of active law enforcement service even though the employee is subject to occasional call, or is occasionally called upon, to perform duties within the scope of active law enforcement service, but not excepting persons employed and qualifying as patrolmen or equal or higher rank irrespective of the duties to which they are assigned." (Italics added.)
In Crumpler v. Board of Administration (1973) 32 Cal.App.3d 567 (Crumpler), the court addressed whether animal control officers hired by a police department were entitled to local safety member status under former sections 20019 and 20020 (respectively, current sections 20420 and 20425 with revisions not relevant here). (Crumpler, supra, 32 Cal.App.3d at pp. 570571, 576.) The animal control officers "were sworn in as police officers and were issued identification cards showing them to be police officers. They wore uniforms bearing the insignia of police officers, carried guns, and were required to be trained in the use of firearms. Their primary duties involved the enforcement of state and local laws and ordinances pertaining to the licensing, control and maintenance of animals. In performing those duties they sometimes used marked police vehicles equipped with police radios and were occasionally called upon to serve as back up officers at the scene of a crime." (Id. at p. 572.)
To determine whether the animal control officers qualified for local safety member status, the court had to interpret the phrase "active law enforcement" in former section 20020. (Crumpler, supra, 32 Cal.App.3d at p. 577.) The court relied on an Attorney General opinion that stated, "'It is not possible to provide any more than a broad definition of what constitutes active law enforcement within the intendment of the County Employees' Retirement Law. We would say generally that it includes positions, the principal duties of which pertain to the active investigation and suppression of crime; the arrest and detention of criminals and the administrative control of such duties .... [T]he main reference is to duties which expose officers and employees to physical risk in the law enforcement filed [sic] ....'" (Ibid., italics added.)
The court found that the "provision of a special category of retirement membership for policemen relate[d] to the hazardous nature of their occupation." (Crumpler, supra, 32 Cal.App.3d at p. 578.) It concluded the phrase "active law enforcement" in former section 20020 meant law enforcement services that policemen normally perform-that is, "the active enforcement and suppression of crimes and the arrest and detention of criminals." (Crumpler, supra, 32 Cal.App.3d at p. 578.)
The court held that the animal control officers' job duties did not constitute active law enforcement. Although animal control officers engaged in "active law enforcement" in a loose sense-as did "a myriad of other public employees such as building inspectors, health officers, welfare fraud investigators" and similar officials-their duties did not constitute "active law enforcement" as contemplated by former section 20020 because the "crimes with which policemen normally deal are those against persons and property and not violations of police regulations." (Crumpler, supra, 32 Cal.App.3d at p. 579.)
Like the animal control officers and other public employees identified in Crumpler, supra, 32 Cal.App.3d at pages 578-579, the ASG position consisted of duties that might loosely be described as, but do not constitute "active law enforcement" within the meaning of section 20425. ASGs differed from police officers because ASGs were not trained to and did not serve subpoenas or transport prisoners; they did not serve search or arrest warrants; they did not carry firearms; they did not perform criminal investigations; they were not allowed to "take down" combative suspects, engage in apprehensions, or physically engage with suspects; other than airplane crashes, ASGs were not dispatched to known dangerous situations; when encountering criminal conduct, ASGs were to observe and report and not intercede; and if a person refused to sign a citation, the ASG was expected to call for a police officer and not to take into custody or arrest the person. Although ASGs performed some duties that can be described as active law enforcement-for example, responding to aircraft crashes and issuing citations-an employee who occasionally "perform[s] duties within the scope of active law enforcement" is not engaged in active law enforcement. (§ 20425; Crumpler, supra, 32 Cal.App.3d at pp. 578-579 &fn. 9.)
Galloway relies on Boxx v. Board of Administration (1980) 114 Cal.App.3d 79 (Boxx) and City of Oakland v. Public Employees' Retirement System (2002) 95 Cal.App.4th 29 (City of Oakland) as support for her contention that ASGs engaged in active law enforcement, even if only infrequently. Boxx and City of Oakland are distinguishable.
In Boxx, supra, 114 Cal.App.3d 79, the court considered whether housing authority patrolmen were engaged in active law enforcement. Unlike ASGs, the patrolmen were armed with guns, responsible for enforcing the Penal Code, and required to make arrests for criminal activity on and around housing authority property. (Id. at pp. 86-88.)
In City of Oakland, supra, 95 Cal.App.4th 29, the court considered whether airport servicemen were firefighters entitled to safety member status even though they did not regularly fight fires-having responded to only three aircraft fires in over 10 years-and "had other subordinate duties to perform, instead of just sitting around waiting for a fire." (Id. at p. 59.) The court held the servicemen were entitled to safety member status because they were "exposed to the same risks as firefighters"- "their primary duty was to fight airplane fires and perform other dangerous work when airport emergencies arose." (Id. at p. 62.) Here, in contrast, the ASG's primary duty was airport security and not the active investigation and suppression of crime and the arrest and detention of criminals. (Crumpler, supra, 32 Cal.App.3d at p. 577.)
The trial court did not err in denying Galloway's petition for writ of administrative mandate.
IV. DISPOSITION
The judgment is affirmed. The Board and the City are entitled to their costs on appeal.
I concur: LEE, J. [*]
BAKER, Acting P. J, Concurring
I believe the opinion for the court reaches the correct result, i.e., that on this record, plaintiff and appellant does not qualify as having been engaged in "active law enforcement service" within the meaning of Government Code section 20425. I write separately to explain that in reaching that conclusion, I have found it unnecessary to proceed on the understanding that Crumpler v. Board of Administration (1973) 32 Cal.App.3d 567 was correctly decided on its facts, which is a question we have not been asked to answer and I do not now answer.
I add one further observation: some of the cases interpreting active law enforcement service in Government Code section 20425 reach what I see as inconsistent results-or at least results that are in tension with others. It would be beneficial if at some point the Legislature, or perhaps our Supreme Court, provides more definitive clarification of what constitutes active law enforcement service.
[*] Judge of the San Bernardino Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.