Opinion
No. 16451
9-12-1955
Lloyd R. WENDLAND, Petitioner and Respondent, v. CITY OF ALAMEDA (a municipal corporation), Pension Board of The City of Alameda (a municipal corporation), and Leland W. Sweeney, Sidney J. Dowling, Carl Froerer, Arthur A. Hobe and Malcolm McGown, as members of the Board of Trustees, known as the Pension Board of the City of Alameda, Respondents and Appellants.
J. P. Clark, City Atty., City of Alameda, Alameda, for appellants. J. W. O'Neill, Oakland, for respondent.
Lloyd R. WENDLAND, Petitioner and Respondent,
v.
CITY OF ALAMEDA (a municipal corporation), Pension Board of The City of Alameda (a municipal corporation), and Leland W. Sweeney, Sidney J. Dowling, Carl Froerer, Arthur A. Hobe and Malcolm McGown, as members of the Board of Trustees, known as the Pension Board of the City of Alameda, Respondents and Appellants.
Sept. 12, 1955.
Rehearing Denied Oct. 11, 1955.
Hearing Granted Nov. 9, 1955. *
J. P. Clark, City Atty., City of Alameda, Alameda, for appellants.
J. W. O'Neill, Oakland, for respondent.
BRAY, Justice.
Petitioner was subpoenaed before the Grand Jury of Alameda County in an investigation of certain alleged bookmaking operations in the city of Alameda. Evidence had been received tending to connect him therewith. He refused to testify on the ground of possible incrimination. At the time petitioner was, and for over 25 years continuously had been, a police officer of the city of Alameda. For his failure to testify, he was discharged from the police department of said city as guilty of an 'offense [which] impairs the efficiency or discipline of the department' mentioned in the amended ordinance in existence at the time of his discharge. Thereafter he applied to the pension board of said city for a pension. His application was denied. Thereafter he petitioned the superior court for a writ of mandamus to compel the pension board and the city to grant him such pension. The trial court held that his refusal to testify constituted an offense impairing the efficiency and discipline of the department, but that such a ground for denial of pension was not a part of the pension ordinance when petitioner joined the police department. The court ordered the board and the city to pay petitioner the pension applied for. The board and the city appeal. Questions Presented.
1. Was the amendment to the city's pension ordinance, adopted after petitioner had joined the police department, binding upon him? 2. Is the refusal by a police officer to testify in a grand jury investigation an 'offense' impairing the efficiency or discipline of the department? 3. Does section 5 of the Alameda ordinance apply?
The portion of ordinance No. 276 N.S., providing for pensions for members of the police and fire departments, important here, read: 'Section 5. Any person having served ten (10) years or more as a member of the regularly constituted Fire or Police Department shall, if he be removed from said Fire or Police Department for any cause other than conviction of a felony; notorious or consecutive insubordination or neglect of duty; or in case of voluntary or involuntary resignation, be entitled to all the provisions of Section 2 of this ordinance, in the proportion that the number of years he has served in either of said departments bears to twenty-five (25) years.'
At the time of petitioner's dismissal, ordinance No. 276 N.S. had been amended by an amendment adopted in 1943, some 17 years after petitioner's employment. The section as amended read: 'Section 5. If any person who has served ten (10) years or more as a member of the regularly constituted Fire or Police Department be discharged from said Fire or Police Department for any reason, except a dismissal for neglect of duty, insubordination, conviction of a felony, or of a misdemeanor involving moral turpitude, or a dismissal for any offense, which offense impairs the efficiency or discipline of the department, such person shall be entitled to all the benefits and provisions of Section 2 of this ordinance, in the proportion that the number of years he has served in either of said departments bears to twenty-five (25) years.
No person who has voluntarily or involuntarily resigned shall ever be entitled to a pension under any provision of this ordinance.' 1. Does The Amendment Bind Petitioner?
He contends that his right to a pension must be determined as of the date when he was first employed, and that as to him the later amendment is not binding; that his pension rights were vested and any attempt to add restrictions additional to those in effect when he was employed constituted an unconstitutional impairment of his pension contract. As stated in Wallace v. City of Fresno, 42 Cal.2d 180, 265 P.2d 884, primarily relied upon by petitioner, a public employee who serves under pension provisions similar to those in the Alameda ordinance acquires a vested contractual right to a substantial pension. This right cannot be constitutionally abolished by subsequent changes in the law. (These principles are well settled by the cases in this state.) However, 'a public pension system is subject to the implied qualification that the governing body may make reasonable modifications and changes before the pension becomes payable and that until that time the employee does not have a right to any fixed or definite benefits but only to a substantial or reasonable pension. [Kern v. City of Long Beach] 29 Cal.2d at page 855, 179 P.2d 799. To the same effect see Packer v. Board of Retirement, 35 Cal.2d 212, 214, 218-219, 217 P.2d 660.' 42 Cal.2d at page 183, 265 P.2d at page 886. As stated in the Wallace case, 42 Cal.2d at pages 183-184, 265 P.2d at page 886: '* * * we must, therefore, determine whether the changes made come within the bounds of a reasonable modification or whether their effect is to impair his vested contractual rights.' The court listed cases which have upheld, as reasonable, amendments which were enacted after the employees involved had earned pension rights but before their pensions became payable: Packer v. Board of Retirement, 35 Cal.2d 212, 217 P.2d 660; the modification eliminated a benefit for an employee's widow but made other changes which were advantageous to the employee. Allstot v. City of Long Beach, 104 Cal.App.2d 441, 231 P.2d 498; Allen v. City of Long Beach, 104 Cal.App.2d 15, 224 P.2d 792; Palaske v. City of Long Beach, 93 Cal.App.2d 120, 208 P.2d 764. These three cases involved an amendment depriving an employee of the right to earn an increase in the amount of his pension payments by remaining in employment after reaching the retirement age. Brooks v. Pension Board, 30 Cal.App.2d 118, 85 P.2d 956; the amount of the pension was reduced from two-thirds to one-half of the employee's salary. Brophy v. Employees Retirement System, 71 Cal.App.2d 455, 162 P.2d 939; substantial reduction in pension payment if the pensioner obtained other gainful employment. (The court pointed out that this case did not discuss whether the change was reasonable and that it was decided before Kern v. City of Long Beach, 29 Cal.2d 848, 179 P.2d 799, upon which the court relied in the Wallace case.) In determining whether the addition to the original ordinance as a ground of denial of a pension, the ground of dismissal for an offense impairing the efficiency or discipline of the department, is reasonable, the determination in the Wallace case that the change there made was not reasonable is not in point. Shortly after Wallace became a police officer a pension ordinance was adopted which provided that, among other grounds, dismissal from the department for commission of a crime involving moral turpitude would be ground for denial of a pension. Later the ordinance was amended to provide that such grounds would warrant termination of a pension being paid a retired officer; in other words, a crime committed after retirement would terminate the pension. Thereafter Wallace retired after 28 years of service and was duly granted a pension. Three years later, the pension board ordered his pension discontinued because he had recently been convicted of a felony. The question before the court was not whether an amendment to the pension system giving commission of a felony before retirement as a ground of denial of a pension was reasonable, but whether one providing for such a ground after retirement was reasonable. As to this the court said: 'The termination of all pension rights upon conviction of a felony after retirement does not appear to have any material relation to the theory of the pension system or to its successful operation. Rather, the change was designed to benefit the city and, as stated in the city's brief, to meet the objections of taxpayers who would be opposed to contributing funds for the maintenance of a pensioner who had been convicted of a felony.' 42 Cal.2d at page 185, 265 P.2d at page 887; emphasis added. Thus, the court was not considering the effect of an amendment denying a pension to a police officer committing a felony before retirement and while still a member of the police department. It held that an amendment denying a pension to an officer who committed a felony after retirement, was unreasonable and did not bear any material relation to the theory of the pension system. Thus the case is not authority for the proposition that an amendment to a pension ordinance providing for denial of a pension for conviction of a felony before retirement is an unreasonable restriction upon the established pension system.
Nor is Skaggs v. City of Los Angeles, 1954, 43 Cal.2d 497, 275 P.2d 9, applicable here. There the pension board attempted to justify the denial of a pension to a police officer on the ground of his removal from office for conduct unbecoming an officer. While there is some language in the case of comfort to petitioner, the actual decision was based upon the fact that the pension ordinance did not contain any such ground of dismissal. '* * * the attempted forfeiture is not pursuant to any charter provision or specific legislation of any nature whatsoever but is merely a refusal of the pension board to grant plaintiff's application for retirement on pension.' 43 Cal.2d at page 503, 275 P.2d at page 13. The ordinance itself stated, 43 Cal.2d at page 501, 275 P.2d at page 13, that upon completion of the period of service designated, the member obtained a fully matured, absolute vested property right to retire and that "no event or occurrence of whatsoever kind or nature, whether prior, pending or subsequent, shall ever operate as a forfeiture or divestiture thereof; * * *." Obviously, with those provisions, a pension board had no authority to deny a pension.
As said in MacIntyre v. Retirement Board of S. F., 42 Cal.App.2d 734, 736, 109 P.2d 962, 963, quoting from People ex rel. Hardy v. Greene, 87 App.Div. 589, 84 N.Y.S. 673, 674: "The pension roll is a roll of honor--a reward of merit, not a refuge from disgrace; and it would be an absurd construction of the language creating it to hold that the intention of the Legislature was to give a life annuity to persons who, on their merits, as distinguished from mere time of service, might be dismissed from the force for misbehavior."
In the MacIntyre case the court also said 42 Cal.App.2d at page 735, 109 P.2d at page 963: 'It is assumed that upon acceptance of a position as officer or employee of a governmental agency, an appointee will perform his duties conscientiously and faithfully. In some instances an oath is required. When it is not required, efficiency and fidelity in the performance of duty are nevertheless paramount considerations, It is never contemplated that an officer or employee guilty of conduct warranting dismissal should continue in office or be permitted to receive other emoluments offered as an inducement to honesty and efficency. The right to a pension is not indefeasible, and an employee, though otherwise entitled thereto, may not be guilty of misconduct in his position and maintain his rights notwithstanding such dereliction of duty.'
In Douglas v. Pension Board, 75 Cal.App. 335, 340, 242 P. 756, as quoted in the MacIntyre case, 42 Cal.App.2d at page 736, 109 P.2d at page 963, the court pointed out that one of the considerations for the adoption by a government of a pension system is: "* * * (1) To encourage those public officers or employees who have by experience or otherwise demonstrated peculiar fitness for the performance of the public services to which they have been assigned to continue in the service of the government and at all times faithfully discharge the duties involved in such service. The hope held out for future additional reward or compensation for their public services to that which they receive concurrently with the period during which they are actually and actively engaged in performing such services is conducive to uniform faithfulness to and efficiency in discharging the duties which their offices or employments have exacted."
To hold that a governmental body cannot make such reasonable changes in its pension system as to provide for denial in case of dismissal from service for such serious matters occurring before retirement as conviction of a felony or commission of an offense impairing the efficiency or discipline of a police department, does not encourage police officers to discharge their duties faithfully. Under such an interpretation, no encouragement is given for faithful service because the officer would get a pension regardless of the type of service.
While petitioner had a vested right to a pension, see Kern v. City of Long Beach, supra, 29 Cal.2d 848, 179 P.2d 799, such right was subject to loss upon the occurrence of certain conditions subsequent, such as lawful termination of employment before completion of the period of service designated in the pension plan, and the conditions expressly contained in the ordinance at the time of his employment; also such additional conditions as reasonably might be added.
'The cited cases are authority for the proposition that reasonable changes detrimental to the pensioner may be made in pension provisions for public employees or their beneficiaries before the happening of the contingency.' Terry v. City of Berkeley, 41 Cal.2d 698, 702, 263 P.2d 833, 836. 'Thus it appears, when the cases are considered together, that an employee may acquire a vested contractual right to a pension but that this right is not rigidly fixed by the specific terms of the legislation in effect during any particular period in which he serves. The statutory language is subject to the implied qualification that the governing body may make modifications and changes in the system. The employee does not have a right to any fixed or definite benefits, but only to a substantial or reasonable pension. There is no inconsistency therefore in holding that he has a vested right to a pension but that the amount, terms and conditions of the benefits may be altered.' Kern v. City of Long Beach, supra, 29 Cal.2d 848, 855, 179 P.2d 799, 803.
In determining the reasonableness of such additions, the type of employment must be kept in mind. A police department, in order to be effective, must maintain the respect and confidence of the public. This requires that the police officers conduct themselves in such manner as to cause that respect and confidence. A pension system providing benefits to encourage such conduct is important. To preserve the respect and confidence of the public such system must not grant benefits for dishonest service, or the type of service which tends to break down the morale of the department. Hence there must be and is an inherent right in the governing body to make changes in pension conditions which are reasonably necessary to assure that the pension system will continue to be a reward for honest and efficient service, and not a payment to a person whose actions while in service bring disgrace to the department and definitely lower the morale of the department.
It should be pointed out, also, that the amendment to the ordinance did not affect petitioner's right to a substantial pension. Under the terms of the ordinance as amended the only person who could upset petitioner's right to a pension was petitioner himself, by no longer conducting himself as a police officer is expected to, and by actually becoming a menace to the department because impairing its efficiency or discipline. As long as he continued to be a decent, honest officer, his pension could not be denied him. If he became otherwise, it would be reasonable to deny him such pension. In fact it would be unreasonable to do otherwise.
The experience of San Francisco, some of which is shown in Christal v. Police Commission, 33 Cal.App.2d 564, 92 P.2d 416; In re Lemon, 15 Cal.App.2d 82, 59 P.2d 213; and In re Hoertkorn, 15 Cal.App.2d 93, 59 P.2d 218, where police officers refused to testify before grand jury investigations of corruption in the police department, demonstrates that such action has a demoralizing effect upon the whole department, and evidences the reasonableness of the action of the city of Alameda in including in its pension ordinance the clause in question here. Requiring a police officer to conduct himself so as not to impair the efficiency or discipline of the department does not add an unreasonable condition to his contract of employment and the attendant right to a pension. In fact, such a condition is an implied part thereof. 2. Is Refusal To Testify An 'Offense' Impairing The Efficiency or Discipline Of The Department?
Petitioner concedes that the city had the right to discharge petitioner for his refusal to testify before the grand jury. See Christal v. Police Commission, supra, 33 Cal.App.2d 564, 92 P.2d 416; In re Lemon, supra, 15 Cal.App.2d 82, 59 P.2d 213; In re Hoertkorn, supra, 15 Cal.App.2d 93, 59 P.2d 218. 'Among the duties of police officers are those of preventing the commission of crime, of assisting in its detection, and of disclosing all information known to them which may lead to the apprehension and punishment of those who have transgressed our laws. When police officers acquire knowledge of facts which will tend to incriminate any person, it is their duty to disclose such facts to their superiors and to testify freely concerning such facts when called upon to do so before any duly constituted court or grand jury. It is for the performance of these duties that police officers are commissioned and paid by the community, and it is a violation of said duties for any police officer to refuse to disclose pertinent facts within his knowledge even though such disclosure may show, or tend to show, that he himself has engaged in criminal activities.' Christal v. Police Commission, supra, 33 Cal.App.2d 564, 567-568, 92 P.2d 416, 419. However, petitioner contends that his action is not an 'offense' and that the meaning of that word in the ordinance is not 'act or conduct' as the trial court construed it, but 'crime.' In 67 C.J.S. p. 88, 'offense' is defined as 'A word used in various senses, and, in construing it in any specific instance, regard must be had to the sense in which it is used. In a broad sense it may signify anything which injures or wounds the feelings or causes displeasure, affront, or anger. 'Offense' has been held to be synonymous with 'misconduct' see 58 C.J.S. p. 819 note 40 * * *.' In Bailey v. Examining & Trial Board, 45 Mont. 197, 200-201, 122 P. 572, 574, it is stated: 'In Mechem on Public Offices & Officers, § 457, the author says: 'Misconduct, willful maladministration, or breach of good behavior, in office, do not necessarily imply corruption or criminal intention. The official doing of a wrongful act, or the official neglect to do an act which ought to have been done, will constitute the offense, although there was no corrupt or malicious motive.' [Citations.]' (Emphasis added.)
In determining the sense in which 'offense' is used in the ordinance regard must be had to the fact that immediately preceding it appears reference to conviction of a felony or misdemeanor involving moral turpitude. Thus it would appear that 'offense' impairing the efficiency or discipline was used in a much broader sense than 'crime.' In Daly v. Otis, 92 Cal.App. 242, 267 P. 921, in construing the original ordinance this court referred to a charge of 'absence without leave' as an 'offense.' 92 Cal.App. at page 244, 267 P. at page 922.
Various statutes use the word 'offense' without denoting a crime. Financial Code sections 3355 and 3356 provide for civil liability for the 'offense' of purchasing assets of banks by their officers for less than market value.
Webster's New International Dictionary (2d ed.) defines 'offense': 'A breach of moral or social conduct; an infraction of law; a crime; sin, transgression; misdeed, any public wrong, whether a crime or misdemeanor.' Funk & Wagnalls Dictionary (1947) defines 'offense' as 'any wrong.'
Applying the rule stated in 23 Cal.Jur. 745, 'Words and phrases will, when possible, be given a reasonable construction, 'according to the context and the approved usage of the language,' and in furtherance of what appears from a consideration of the whole enactment to be its true purpose and object' (emphasis added), it appears that the word 'offense' was used in a broader sense than 'crime.' In People v. Brannon, 70 Cal.App. 225, 233 P. 88, where the court was construing the constitutional inhibition against double jeopardy for the 'same offense,' it said, quoting from State v. Rose, 89 Ohio St. 383, 106 N.E. 50, L.R.A.1915A, 256: "Layman and lawyer alike understand the word 'offense' to here mean simply a crime." 70 Cal.App. at page 228, 233 P. at page 89; emphasis added. Obviously this language applies only to the use of the word in the constitutional provision. There are authorities which define 'offense' as 'crime.' However, we believe that the sense in which the word is used in the ordinance is much broader. As said in Ballentine, Law Dictionary (1930): 'The words 'crime' and 'offense' are not necessarily synonymous. All crimes are offenses, but some offenses are not crimes.'
Sometime after the controversy over petitioner's application for pension arose, the pension ordinance was amended. Among other changes the phrase 'any offense, which offense impairs' etc., was changed to 'any act or conduct which impairs * * *' Petitioner contends that in making such change the Alameda City Council indicated that the former ordinance did not express the legislative intent, and by the amendment changed the meaning of the phrase, citing People v. Weitzel, 201 Cal. 116, 255 P. 792, 52 A.L.R. 811, and other cases to the effect that generally a material change in the phraseology of a statute by an amendment raises a presumption that a change in the meaning of the statute was intended. But as said in W. R. Grace & Co. v. California Emp. Comm., 24 Cal.2d 720, 729, 151 P.2d 215, 221: Although courts ordinarily infer an intent to change the law from a material change in the language of a statute (People v. Weitzel, 201 Cal. 116, 118, 255 P. 792, 52 A.L.R. 811; Loew's Inc., v. Byram, 11 Cal.2d 746, 82 P.2d 1; see Crawford, Statutory Construction [1940], p. 618), the circumstances may indicate merely a legislative intent to clarify the law (Union League Club v. Johnson, 18 Cal.2d 275, 278-279, 115 P.2d 425; Martin v. California Mut. B. & L. Ass'n, 18 Cal.2d 478, 484, 116 P.2d 71; San Joaquin Ginning Co. v. McColgan, 20 Cal.2d 254, 263, 264, 125 P.2d 36: see 1 Sutherland, Statutory Construction, [3rd ed., 1943] pp. 415, 416, 418).' See also Koenig v. Johnson, 71 Cal.App.2d 739, 753, 163 P.2d 746; Dalton v. Baldwin, 64 Cal.App.2d 259, 148 P.2d 665 (holding that the general rule only applies to a material change). Under all the circumstances here, it appears that the amendment was not intended to change the meaning of the clause but merely to clairfy it. 3. Application of Ordinance.
Petitioner, at oral argument, contended that section 5 of the ordinance is limited to officers serving between 10 and 25 years, and as he had served more than that period it does not apply to him. The section provides that persons serving more than 10 years, who are discharged for causes other than those listed as depriving them of a pension altogether, shall be granted benefits in proportion as the number of years served bears to 25 years (the retirement period). Thus, a person so discharged who has served 15 years would receive 15/25ths of the pension payable at the retirement period. To construe this section as meaning that a person discharged for conviction of a felony (or any of the other causes for denial of pension mentioned in the section) can be denied a pension only if his service is between 10 and 25 years, and that he cannot be denied a pension if his service is over 25 years would be absurd. Even if this were a possible construction of the section, the rule stated in Snyder v. City of Alameda, 58 Cal.App.2d 517, at page 520, 136 P.2d 857, at page 860, would apply: 'Moreover, it is a well established rule of statutory construction that where the language of a statute is susceptible of two constructions, one of which in its application will render it reasonble, fair and harmonious with its manifest purpose, and another which would be productive of absurd consequences, the former construction will be adopted.'
The judgment is reversed.
PETERS, P. J., and FRED B. WOOD, J., concur. --------------- * Opinion vacated 298 P.2d 863.