Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CV067807
Premo, J.
Appellant Richard R. Lane appeals from a judgment denying his petition for writ of mandate and writ of administrative mandate entered in favor of respondent California Public Employees’ Retirement System (CalPERS). Lane seeks to require CalPERS to calculate his service retirement benefit by dividing his “final compensation” by seven and one half months, the period he “actually worked,” rather than 12 months. We conclude that CalPERS has properly calculated Lane’s retirement benefit in accordance with Government Code section 20035, subdivision (a) (hereafter “section 20035(a)”) and will affirm.
All further statutory references are to the Government Code, unless otherwise specified.
I. Factual and Procedural Background
The CalPERS retirement fund is established as a trust, administered in accordance with the provisions of the Public Employees’ Retirement Law (§ 20000 et seq., hereafter “PERL”), solely for the benefit of the participants. (§ 20170.) The retirement system is funded by contributions from employers and employees, calculated as a percentage of an employee’s compensation. (Hudson v. Board of Administration (1997) 59 Cal.App.4th 1310, 1316.) A member’s retirement benefits are based on their years of service within the system, final compensation and age at retirement. (Ibid.)
From 1986 to 2002, Lane worked as a lecturer at San Jose State University (SJSU) on a temporary basis. Lane retired from that employment on May 30, 2002, and elected to have his final compensation calculated on the basis of what he earned over the prior 12-month period, i.e., May 31, 2001 to May 30, 2002. Lane’s final compensation for that period was ultimately determined to be $70,707.60.
In May 2003, Lane appealed CalPERS’ original calculation of his final compensation to the CalPERS board of administration, which subsequently adjusted Lane’s final compensation to $70,707.60 in May 2005. In its responding brief, CalPERS points out that, during that original administration appeal, Lane made certain statements which could be construed as being inconsistent with the position that he is taking in this appeal. Because we conclude that CalPERS properly calculated Lane’s retirement benefit under the PERL, we need not reach this contention.
Over the 12-month period before his retirement, Lane taught classes in three departments under three separate part-time contracts. These contracts were effective from August 23, 2001 to May 29, 2002 and comprised the fall 2001 and spring 2002 semesters at SJSU. Official dates of instruction for the fall 2001 semester consisted of August 23, 2001 to December 11, 2001 and for the spring 2002 semester, January 23, 2002 to May 14, 2002, with a one week examination and grading period at the end of each semester.
Consequently, Lane actually worked as an instructor for seven and a half months of the 12 months immediately preceding his retirement. However, Lane’s salary was paid to him in 12 monthly installments. During the four and a half months when Lane was not teaching, he was able to draw unemployment benefits.
Lane was entitled to unemployment benefits between semesters in which he taught, since his teaching assignments were contingent on funding and adequate class enrollment. As a result, Lane had no “ ‘reasonable assurance’ ” of renewed employment. (Cervisi v. Unemployment Ins. Appeals Bd. (1989) 208 Cal.App.3d 635, 638.)
On May 18, 2005, Lane wrote to CalPERS requesting that his retirement benefit be calculated by dividing the amount he earned over the 12-month period leading up to his retirement by the number of months he actually worked, i.e., seven and a half months, rather than 12 months. CalPERS rejected Lane’s request and, citing section 20035(a), stated that it would calculate his average final compensation by dividing Lane’s final compensation of $70,707.60 by 12. Accordingly, on August 8, 2005, CalPERS notified Lane that his average monthly payrate for the 12-month period before his retirement was $5,892.30.
Lane appealed CalPERS’ decision to the CalPERS board of administration, and his appeal was heard by an administrative law judge (ALJ). The ALJ denied Lane’s appeal in a proposed decision, which was adopted by the CalPERS board of administration. The CalPERS board of administration denied Lane’s subsequent request for reconsideration.
Lane filed a petition for writ of mandate and administrative mandate pursuant to Code of Civil Procedure sections 1085 and 1094.5 seeking to compel CalPERS to calculate his retirement benefit by dividing his final compensation by the number of months he actually worked during the 2001-2002 academic year, rather than the 12 months prior to his retirement date. The trial court denied the petition and entered judgment in favor of CalPERS. Lane timely appealed.
II. Discussion
A. Standard of review
The parties disagree on the proper standard of appellate review in this case. Lane asserts that because the issue presented is one of statutory interpretation and there is no dispute over the facts of the case, the matter is subject to our de novo review. CalPERS argues that the trial court exercised its “independent judgment” in reviewing the evidence presented in the administrative record below and that this court must therefore review the record to determine whether the trial court’s judgment is supported by “substantial evidence.” However, CalPERS also argues, in the alternative, that the parties’ “differing interpretations” of section 20035(a) presents a question of statutory interpretation, which is subject to de novo review.
We are presented here, as was the trial court, with the question of how to interpret and apply a statute to certain undisputed facts, i.e., a question of law. “On questions of law arising in mandate proceedings, we exercise independent judgment.” (Bunnett v. Regents of University of California (1995) 35 Cal.App.4th 843, 849.) In those circumstances, the trial and appellate courts perform the same function. (Shapell Industries, Inc. v. Governing Board (1991) 1 Cal.App.4th 218, 233.) Accordingly, to decide the meaning of section 20035(a), we apply our independent review without reference to the trial court’s actions. (McGill v. Regents of University of California (1996) 44 Cal.App.4th 1776, 1786.)
In exercising our independent judgment, we rely upon settled rules of statutory construction. “ ‘Statutes are to be interpreted in accordance with their apparent purpose . . . .’ (Kaiser Foundation Health Plan, Inc. v. Lifeguard, Inc. (1993) 18 Cal.App.4th 1753, 1762.) First and foremost, we look for that purpose in the actual language of the statute. (Mercer v. Department of Motor Vehicles (1991) 53 Cal.3d 753, 763.) If the meaning is without ambiguity, doubt, or uncertainty, then the language controls. (Security Pacific National Bank v. Wozab (1990) 51 Cal.3d 991, 998.) If the meaning of the words is not clear, we may refer to various extrinsic aids, including the history of the statute, to determine the intent of the Legislature. (Kaiser Foundation Health Plan, Inc. v. Lifeguard, Inc., supra, 18 Cal.App.4th at p. 1762.) Finally, if neither the words of the statute nor its legislative history reveal[s] a clear meaning, we apply reason and practicality, and interpret the statute in accord with common sense and justice, and to avoid an absurd result. (Halbert’s Lumber, Inc. v. Lucky Stores, Inc. (1992) 6 Cal.App.4th 1233, 1240.)” (In re Marriage of Campbell (2006) 136 Cal.App.4th 502, 506.)
Although our review is independent, we must accord proper deference to CalPERS’ interpretation of the law. (MHC Operating Limited Partnership v. City of San Jose (2003) 106 Cal.App.4th 204, 219.) “An agency interpretation of the meaning and legal effect of a statute is entitled to consideration and respect by the courts; however, . . . the binding power of an agency’s interpretation of a statute or regulation is contextual: Its power to persuade is both circumstantial and dependent on the presence or absence of factors that support the merit of the interpretation.” (Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 7.) The rationale for this rule is simple: When interpreting a statute which falls within the administrative jurisdiction of an agency, there is a presumption that the agency possesses a more in-depth familiarity with certain legal and regulatory issues associated with that statute. (Id. at p. 11.) However, because a “statute’s legal meaning and effect, [are] questions lying within the constitutional domain of the courts,” the courts are the ultimate arbiters of whether the agency’s interpretation is correct. (Ibid.) It follows that if application of the settled rules of statutory interpretation does not clearly reveal the Legislature’s intent, CalPERS’ interpretation of the statute in the context of this case may be helpful, but not dispositive.
B. There is no basis for interpreting section 20035 (a) to require CalPERS to calculate Lane’s average monthly payrate by dividing his final compensation by the number of months he “actually worked”
Section 20035(a) provides, in pertinent part, as follows: “Notwithstanding Section 20037, ‘final compensation’ for the purposes of determining any pension or benefit with respect to a state member who retires or dies on or after July 1, 1991, and with respect to benefits based on service with the state, means the highest annual compensation which was earnable by the state member during the consecutive 12-month period of employment immediately preceding the effective date of his or her retirement or the date of his or her last separation from state service if earlier or during any other period of 12 consecutive months during his or her membership in this system that the member designates on the application for retirement.”
Section 20035(a) makes no mention of a “payrate,” monthly or otherwise. It does, however, refer to “compensation which was earnable.” Section 20636, subdivision (a) defines “compensation earnable” as “the payrate and special compensation of the member . . . .” “Payrate” is then defined in section 20636, subdivision (b)(1) as the “normal monthly rate of pay or base pay of the member paid in cash to similarly situated members of the same group or class of employment for services rendered on a full-time basis during normal working hours, pursuant to publicly available pay schedules.” (Italics added.)
As a result, in order to find a basis for determining a member’s “monthly payrate,” section 20035(a) must be read in conjunction with section 20636. Section 20035(a) refers to “compensation which was earnable,” and, under section 20636, subdivision (a), “compensation earnable” refers to “payrate.” As shown above, “payrate” means “the normal monthly rate of pay” as defined in section 20636, subdivision (b)(1). There is thus a direct correlation between a member’s “normal monthly rate of pay,” found in section 20636, subdivision (b)(1), and a member’s “final compensation,” defined in section 20035(a).
Lane argues that the phrase “compensation which was earnable” as used in section 20035(a) should be interpreted to mean what he would have earned if he were paid for working 12 months, rather than only seven and a half months. In other words, since Lane was paid $70,707.60 and worked seven and one half months, the “compensation which was earnable” by him had he worked for 12 months was $113,132.16. Lane relies on Ventura County Deputy Sheriffs’ Assn. v. Board of Retirement (1997) 16 Cal.4th 483 (Ventura County), to support his contention that the salary he received for working seven and a half months should be annualized.
We derived this amount by multiplying $70,707.60 by 12 and dividing the result by 7.5.
In Ventura County, the California Supreme Court addressed the issue of whether or not sick leave payments made to county employees counted as “ ‘compensation earnable’ ” for purposes of calculating retirement benefits under the County Employees Retirement Law (CERL). In its opinion, the court discussed the meaning of the phrase “ ‘compensation earnable,’ ” noting that it is used in “some 80 pension-related code sections,” including the PERL. (Ventura County, supra, 16 Cal.4th at p. 503, fn. 24.) As there was “no reason to think that the Legislature intended that the same specifically defined term take on a different meaning in computing the pension of a county employee, the construction of ‘compensation earnable’ should be consistent under CERL, . . . and PERL, . . .” (Id. at p. 504.)
“Each of these definitions suggests that ‘compensation earnable’ is the average pay of the individual retiring employee computed on the basis of the number of hours worked by other employees in the same class and pay rate--that is the average monthly pay, excluding overtime, received by the retiring employee for the average number of days worked in a month by the other employees in the same job classification at the same base pay level.” (Ventura County, supra, 16 Cal.4th at p. 504.) Lane seizes on the use of the phrase “number of days worked” to support his argument that the four and a half months during which he did not work should not be included in the calculation of “compensation earnable.” However, he conveniently ignores the language immediately preceding this phrase, in which the court notes that “compensation earnable” “is the average monthly pay . . . .” (Ibid., italics added.) Consequently, we do not agree that Ventura County is particularly helpful to Lane’s position in this matter. There is no reference in that decision to annualizing the pay of a part-time employee who has worked less than a full year.
Furthermore, there is nothing in sections 20035 or 20636 which supports Lane’s interpretation. As discussed above, “compensation earnable” refers to “payrate,” which means “normal monthly rate of pay.” (§ 20636, subds. (a), (b)(1).) There is no reference in either section 20035 or section 20636 to annualizing a member’s compensation, which is what Lane contends CalPERS was required to do. Presumably, if the Legislature intended to allow for annualizing a member’s compensation, it would have expressly provided such a mechanism. Since section 20035(a) includes the terms “annual” and “consecutive 12-month period,” it appears that the Legislature intended that a member’s retirement benefit be calculated on the basis of an entire year, rather than some portion thereof.
Accepting Lane’s interpretation would require CalPERS to consider as “compensation earnable” money Lane did not earn and was not paid during a period of time he did not work. We decline to interpret the PERL in a way that would compel such a result.
III. Disposition
The judgment is affirmed.
WE CONCUR: Rushing, P.J., Duffy, J.