Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05CS00509
SCOTLAND, P.J.
Gary Lowrey appeals from the denial of his petition for writ of administrative mandamus challenging the decision of the Public Employees’ Retirement System Board (PERS Board) finding that his position as a fire prevention officer for the City of Bakersfield did not qualify for local safety member status and benefits under the Public Employees’ Retirement System (PERS). We shall affirm the judgment.
As we will explain, because Lowrey was a fire prevention officer whose primary duties did not fall within the scope of “active firefighting” (Gov. Code, § 20433), and because the City did not contract with the PERS Board to provide safety member benefits to its fire prevention officers as “local firefighters” (Gov. Code, § 20434), he does not qualify for safety member status under controlling PERS statutes. (City of Huntington Beach v. Board of Administration (1992) 4 Cal.4th 462, 464, 467, 472; Schaeffer v. Public Employees’ Retirement System (1988) 202 Cal.App.3d 609, 612-613.) Penal Code statutes and a City ordinance authorizing Lowrey to exercise the powers of a peace officer while working as a fire prevention officer are not intended to classify him as a local safety member for purposes of PERS retirement benefits.
FACTS AND PROCEDURAL BACKGROUND
The City of Bakersfield employed Lowrey as a fire inspector. His job title was later changed to fire prevention/environmental officer, but his duties were not altered. Lowrey’s primary duties involved conducting inspections to enforce the Uniform Fire Code, the Uniform Building Code, the City Municipal Code, the National Fire Protection Code, and some sections of the Penal Code. If fire code violations occurred, Lowrey could issue notices of violation and stop work orders. If violations of the Penal Code occurred, he could issue a notice to appear/citation (NTA); but if the offender refused to sign the NTA, Lowrey was instructed to call a police officer to have the person taken into custody. In order to qualify to issue NTAs, Lowrey completed a portion of peace officer training pursuant to Penal Code section 832.
After working for ten years, Lowrey left the fire department on a disability retirement due to a knee injury. He was classified as a local miscellaneous member of PERS. Lowrey later requested reclassification as a local safety member, which would increase his retirement benefits. The request was denied, and Lowrey pursued an administrative appeal.
Following an evidentiary hearing, an administrative law judge (ALJ) denied the request for reclassification. The ALJ explained the ruling as follows: Lowrey’s employment classification was governed by the City’s contract with PERS, which designated his position as a “local miscellaneous” classification. The City never employed him as a police officer or firefighter. Indeed, Lowrey “admitted that he [was] not a firefighter, and stated that he is not claiming ‘safety’ classification based upon firefighter status.” As a fire prevention officer, he is not a “local safety member” unless the City amends it contract with the PERS Board to confer safety status for such officers. (Gov. Code, § 20434.) There was no evidence the City had done so. Although Lowrey claimed his position was that of a peace officer “whose ‘essential duties’ were ‘law enforcement,’” the evidence did not support his claim. He was not authorized to conduct arson investigations, was not allowed to carry a gun, never made an arrest, and did not transport suspects to jail by himself. His assertions that he helped fire captains dig out fire scenes where arson was suspected, guarded crime scenes, investigated arsons, and transported suspects “were not credible, because they were refuted by [his] former supervisor,” who testified that at most Lowrey helped at fire scenes by doing “some grunt work,” like hauling barricades, running errands, doing some shoveling, and occasionally “hauling evidence because [Lowrey drove a] pickup truck[].” “Like an animal control officer or a building inspector, [Lowrey] occasionally may have engaged in ‘law enforcement’ activities, such as issuing [NTAs, directing violators to appear in court regarding the citations]”; however, “his primary duties involved the inspection of buildings and other sites for code violations and did not constitute ‘active law enforcement service.’” “Given the nature of [his] employment,” Lowrey is not a “local safety member” (Gov. Code, § 20420) for purposes of his retirement benefits.
The PERS Board adopted the ALJ’s decision and denied Lowrey’s request for local safety member reclassification.
Lowrey challenged the PERS Board’s decision via a petition for writ of administrative mandate, which the trial court denied.
DISCUSSION
The Public Employees’ Retirement Law establishes a retirement system for certain state and local government employees. (Gov. Code, § 20000 et seq.; further section references are to the Government Code unless otherwise specified.) The employees of a city become members of PERS when the city elects, via a contract with the PERS Board, to have its employees covered by PERS. (§§ 20460, 20056.) The employees may be classified as either “local miscellaneous” (§ 20383) or “local safety” (§ 20420), depending on the nature of the principal tasks and duties of their positions.
Section 20383 states: “‘Local miscellaneous member’ includes all employees of a county office of education, school district, or community college district who are included in a risk pool and all employees of a contracting agency who have by contract been included within this system, except local safety members.”
Local safety members receive superior retirement benefits compared to those received by local miscellaneous members. (City of Huntington Beach v. Board of Administration, supra, 4 Cal.4th at p. 466.)
A “local safety member” is defined as “includ[ing] all local police officers, local sheriffs, firefighters, safety officers, county peace officers, and school safety members, employed by a contracting agency who have by contract been included within this system.” (§ 20420.) The safety member positions enumerated in section 20420 are defined more specifically in sections 20421 through 20445. Of those sections, the two that relate to local fire department employees are sections 20433 and 20434.
Lowrey, a local fire department employee, concedes that he does not qualify for local safety member classification by virtue of section 20433, which applies to local fire department officers and employees whose principal duties and functions include “active firefighting.” As the ALJ pointed out, Lowrey “admitted that he [was] not a firefighter, and stated that he is not claiming ‘safety’ classification based upon firefighter status.”
Section 20433 states: “‘Local firefighter’ means any officer or employee of a fire department of a contracting agency, 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 firefighting, or active firefighting and prevention service, active firefighting and fire training, active firefighting and hazardous materials, active firefighting and fire or arson investigation, or active firefighting and emergency medical services, even though that employee is subject to occasional call, or is occasionally called upon, to perform duties within the scope of active firefighting, or active firefighting and prevention service, active firefighting and fire training, active firefighting and hazardous materials, active firefighting and fire or arson investigation, or active firefighting and emergency medical services, but not excepting persons employed and qualifying as firefighters or equal or higher rank, irrespective of the duties to which they are assigned.”
And he does not qualify for safety member classification by virtue of section 20434, which applies to “any officer or employee of a [local fire department], 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 firefighting, fire prevention, fire training, hazardous materials, emergency medical services, or fire or arson investigation service, even though that employee is subject to occasional call, or is occasionally called upon, to perform duties within the scope of active firefighting, fire prevention, fire training, hazardous materials, emergency medical services, or fire or arson investigation service, but not excepting persons employed and qualifying as firefighters or equal or higher rank, irrespective of the duties to which they are assigned. . . .”
The reason that Lowrey does not qualify for local safety member status by virtue of section 20434 is because, by its explicit terms, “[t]his section shall not apply to the employees of any contracting agency nor to any contracting agency until the agency elects to be subject to this section by amendment to its contract with the [PERS Board], made pursuant to Section 20474 or by express provision in its contract with the [PERS Board].” (§ 20434.) Lowrey, who had the burden of proving that he was entitled to reclassification as a local safety member (see McCoy v. Board of Retirement (1986) 183 Cal.App.3d 1044, 1051, fn. 5) presented no evidence that the City contracted with the PERS Board to confer local safety status on employees of its fire department who would be covered by section 20434 if the City had done so.
Section 20474 states in pertinent part: “Whenever by any provision of law an election is given to contracting agencies to subject themselves and their employees to provisions of this part otherwise not applicable to contracting agencies and their employees, and no other means of making the election is expressly provided, any contracting agency may make the election by amendment to its contract with the board approved in the manner provided for the approval of the contracts including an election among the employees affected unless the amendment only adds benefits without affecting members’ contributions, in which case the election among the employees is not required. . . .”
There is no merit in Lowrey’s claim that “the City did in fact elect to include him under local safety status by constructively amending [its] contract [with the PERS Board].” This occurred, in his view, when the City enacted two ordinances that gave his position peace officer status during the performance of certain duties. We could reject the contention because Lowrey has not cited any authority that would permit safety member status to be conferred by an implied, rather than express, amendment of the City’s contract with the PERS Board. (Taylor v. Roseville Toyota, Inc. (2006)138 Cal.App.4th 994, 1001, fn. 2 [a point asserted without authority is forfeited.) But we proceed to reject it on the merits. An amendment of a contract “is a change in the obligation by a modifying agreement which requires mutual assent” of the parties to the contract (Wade v. Diamond A Cattle Co. (1975) 44 Cal.App.3d 453, 457)--here the City and the PERS Board. The City’s ordinances in no way constitute a mutually-agreed-upon-amendment of the City’s contract with the PERS Board regarding retirement benefits for the City’s employees. Section 20434 is explicit; for it to apply, (1) the City’s original contract with the PERS Board must contain a provision explicitly subjecting the City to provide safety member status to the employees covered by the section, or (2) such an explicit amendment must be made to the contract pursuant to section 20474, which requires approval of the amendment “in the manner provided for the approval of the contracts.” Without that explicit agreement in the contract, the employees in question are not entitled to the benefit of local safety member status. (See Feliciano v. Board of Administration (1991) 1 Cal.App.4th 143, 147-148.)
In his reply brief, Lowrey takes a different tack in asserting that he is entitled to local safety member status via section 20434. The argument fails because, without good cause, he raises it in his reply brief, thus depriving the City of the opportunity to respond in writing. (Garcia v. McCutchen (1997) 16 Cal.4th 469, 482, fn. 10; Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8.) In any event, it lacks in merit. Lowrey first asserts that section 20434 excludes from its definition of a local firefighter those employees identified in what he refers to as the “first group (i.e., telephone operators[, clerks, stenographers, machinists, and mechanics])” and the “second group (i.e., whose function[s] do not clearly fall within the scope of [active firefighting, fire prevention, fire training, hazardous materials, emergency medical services, or fire or arson investigation service]),” thus meaning that employees like him whose functions do clearly fall within the scope of fire prevention are local firefighters within the meaning of section 20434. Then, in conclusory fashion, Lowrey claims “the election clause . . . that ‘[t]his section shall not apply to the employees of any contracting agency nor to the contracting agency until the agency elects to be subject to this section [by amendment to its contract with the PERS Board]’” refers only to those employees in the “first group” and “second group” of the statute. Therefore, he argues, the “election clause does not apply to fire prevention employees.” His argument is illogical. It would be unnecessary for the election clause to apply to employees who are excluded from the statute’s definition of a local firefighter. Rather, it is the employees included in section 20434’s definition of local firefighter who qualify for safety member status if the contracting agency, here the City, elects to subject itself and its employees to this section by so amending its contract with the PERS Board.
Looking elsewhere to support his claim of entitlement to local safety member status for retirement benefits, Lowrey cites a City ordinance and a state statute that gave him peace officer status. When he was a fire prevention officer in the City’s fire department, section 15.64.380 of the City’s Municipal Code stated in part: “Members of the fire department assigned to Fire Safety Control Division . . . are peace officers when enforcing laws related to fire prevention . . . .” And Penal Code section 830.37 includes as a peace officer a local fire department employee whose primary duty “is the enforcement of laws relating to fire prevention . . . .” (Pen. Code, § 830.37, subd. (b).) Lowrey’s status as a peace officer is also demonstrated, he says, by the fact that the fire department required him to complete a course of training prescribed by the Commission on Peace Officer Standards and Training. (Pen. Code, § 832.) Acknowledging his peace officer powers were restricted, Lowrey cites Penal Code section 830, which states in part, “[t]he restriction of peace officer functions of any public officer or employee shall not affect his or her status for purposes of retirement.”
Lowrey fails to appreciate that the purpose of those statutes and ordinance defining a peace officer is “merely to authorize the named persons to exercise the statutory powers of a peace officer.” (Dyas v. Superior Court (1974) 11 Cal.3d 628, 635-636, fn. 3; accord, Boxx v. Board of Administration (1980) 114 Cal.App.3d 79, 85.) They are not intended to confer safety member status for purposes of PERS classification and retirement benefits. (See Charles v. Board of Administration (1991) 232 Cal.App.3d 1410, 1414.) The controlling statutes regarding local safety member status for PERS retirement benefits are sections 20420 through 20445 of the Government Code, not the ordinance and Penal Code sections upon which Lowrey relies. (Boxx v. Board of Administration, supra, 114 Cal.App.3d at p. 88.)
Thus, there is no merit in Lowrey’s assertion that “the City must be stopped from denying local safety membership status to [him] given all the benefits they [sic] have received over the years by having [him] perform peace officer duties.”
In a final effort to secure safety member status, Lowrey intimates that he is a local safety member because his duties involve active law enforcement, thus qualifying him as a local police officer within the meaning of section 20425, which states in part: “‘Local 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.”
Lowrey sees no obstacle in the fact that he was not employed by a police department or by an entity that was a de facto police department. (See, e.g., City of Oakland v. Public Employees’ Retirement System (2002) 95 Cal.App.4th 29, 56; Boxx v. Board of Administration, supra, 114 Cal.App.3d at p. 84 (hereafter Boxx).) This is so, he says, because “labeling the individuals as members of a police department is not as important as whether they are engaged in active law enforcement.” (Boxx, supra, at p. 85.) Lowrey misses the point of this quotation from Boxx. Its reference was to whether a person is entitled to local safety member classification, rather than miscellaneous member classification, simply because the person is employed by a police department. The point was that such status depends not on the label that the person is a member of a police department, but on whether the person’s primary duties constitute active law enforcement service. (§ 20425.) Boxx did not suggest that a person can be considered a local police officer even though the person is not employed by a local police department.
In any event, substantial evidence supports the ALJ’s finding that Lowrey’s primary duties, which involved the inspection of buildings and other sites for code violations, did not constitute active law enforcement service, and that Lowrey’s testimony to the contrary was not credible. (Smith v. City of Napa (2004) 120 Cal.App.4th 194, 198 [review of factual findings is limited to whether they are supported by substantial evidence].) Lowrey was not authorized to conduct arson investigations, was not allowed to carry a gun, did not transport suspects to jail by himself, and never made arrests--if an offender refused to sign a citation issued by Lowrey, he was required to summon a police officer to have the person taken into custody. Thus, his primary duties did not fall within the scope of active law enforcement service. (See Crumpler v. Board of Administration (1973) 32 Cal.App.3d 567, 578-579 [“The provision of a special category of retirement membership for policemen relates to the hazardous nature of their occupation. [Citation.] The phrase ‘active law enforcement service’ . . . was no doubt intended to mean law enforcement services normally performed by policemen. As the Attorney General has suggested, it means the active enforcement and suppression of crimes and the arrest and detention of criminals. [Citation.] In a loose sense animal control officers are engaged in active law enforcement but so are a myriad of other public employees such as building inspectors, health officers, welfare fraud investigators and the like but their duties can hardly be said to constitute ‘active law enforcement service’ as contemplated by the statute”].)
Lowrey may believe his duties ought to qualify automatically for local safety member status, but the Legislature has decided otherwise by making such status optional for fire prevention officers at the election of the contracting agency employer. (§ 20434.) We are bound by the clear language of section 20434. As a matter of law, Lowrey is not entitled to local safety member status because the City did not elect to amend its contract with the PERS Board to give him such status. (City of Huntington Beach v. Board of Administration, supra, 4 Cal.4th at pp. 464, 467, 472; Schaeffer v. Public Employees’ Retirement System, supra, 202 Cal.App.3d at pp. 612-613.)
DISPOSITION
The judgment denying Lowrey’s petition for writ of mandate is affirmed. Lowrey shall reimburse respondents for their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
We concur: MORRISON, J., HULL, J.