Judge Curtis A. Kin, Case Number: 23STCP01080, Date: 2024-11-05 Tentative Ruling

Petitioner Jason J. Bemowski petitions for a writ of mandate directing respondent California Public Employees’ Retirement System to accept petitioner’s application for industrial disability retirement.

Respondent California Public Employees’ Retirement System (“CalPERS”) “is a unit of the Government Operations Agency responsible for administering the retirement systems for the State of California and ‘contracting agencies’—local public agencies that have ‘elected to have all or part of [their] employees become members of this system and that ha[ve] contracted with [CalPERS] for that purpose.’” (Marzec v. California Public Employees Retirement System (2015) 236 Cal.App.4th 889, 896, citing Gov. Code §§ 20001, 20002, 20004, 20022, 20028.)[1]

Pursuant to the Public Employees’ Retirement Law (“PERL”), the Board of Administration of the California Public Employees’ Retirement System (“Board”) manages and controls pensions for public employees. (Gov. Code § 20120-20122.) “The board shall determine who are employees and is the sole judge of the conditions under which persons may be admitted to and continue to receive benefits under this system.” (§ 20125.) Subject to the PERL, “the board shall determine and may modify benefits for service and disability.” (§ 20123.)

“When it is established that a member of PERS ‘is incapacitated physically or mentally for the performance of his or her duties in the state service and is eligible to retire for disability, the [Board of Administration of the Public Employees Retirement System] shall immediately retire [the member] for disability….’” (Haywood v. American River Fire Protection Dist. (1998) 67 Cal.App.4th 1292, 1303, quoting Gov. Code § 21156.) “Incapacity for performance of duty” means “disability of permanent or extended duration, which is expected to last at least 12 consecutive months or will result in death, as determined by the board, or in the case of a local safety member by the governing body of the contracting agency employing the member, on the basis of competent medical opinion.” (Gov. Code § 20026.) Disability pension laws are designed to help employees who are medically unable to perform their usual duties, not those who are unwilling to maintain the standards of public service. (Haywood, 67 Cal.App.4th at 1304.) Disability pension laws “are not intended to require an employer to pension-off an unwilling employee in order to maintain the standards of public service.” (Id. at 1304-05.)

Petitioner was employed by real party City of Chino (“City”) as a Police Officer, effective December 24, 2001. (AR 17.)[2] His highest rank at the time of his termination was Police Sergeant. (AR 97.) By virtue of his employment, he is a local safety member of CalPERS subject to Government Code sections 21154 and 21156.

In January 2019, the Roseville Police Department initiated a criminal investigation of petitioner based on an allegation that, on December 23, 2018, he engaged a minor to perform acts of prostitution. (AR 99, 121-24.) After a two-month investigation, on March 7, 2019, petitioner was arrested and booked at San Bernadino County Central Jail for violations of Penal Code sections 261.5, subdivision (a), unlawful sexual intercourse with a minor, and 647, subdivision (b), prostitution. (AR 99.)

On the day of his arrest, the City served petitioner with a Notice of Relief from

You are immediately relieved from duty as a City employee and pending the results of an investigation for acts, or failures to act, which may be grounds for disciplinary action. The relieving of an employee from duty is not a disciplinary action. You will be on a Leave of Absence, with pay, for purposes of salary, benefits and service time, until further notice. (AR 82, 646.)

On March 11, 2019, the City issued a memorandum advising petitioner that he was the subject of a personnel complaint. This memorandum notified petitioner: “[T]he investigation being conducted concerning allegations that you have engaged in conduct that, if found true, could violate sections of the Chino Police Department [“Chino PD”] Operations Manual….” (AR 84.) Petitioner acknowledged receipt of this memorandum on March 13, 2019. (AR 206 [HT 44:13-15].)

On September 17, 2019, the City’s Chief of Police issued a Notice of Intent to Discipline (“Notice of Intent”), advising petitioner of the City’s intent to terminate his employment. The Notice of Intent alleged eight separate grounds for discipline, six of which were sustained. The sustained grounds included violations of Chino PD Manual policies regarding conduct, performance, and discriminatory harassment. The Notice of Intent cited petitioner’s alleged commission of criminal sex acts with a minor on December 23, 2018, as well as his alleged inappropriate communications with other Chino PD personnel, as acts in support of the proposed termination. (AR 90-95.) Petitioner acknowledged receipt of the memorandum on September 17, 2019. (AR 95.)

On October 1, 2019, the City’s Chief of Police issued a Notice of Discipline, which stated, in part:

On September 17, 2019, I issued you a Notice of Intent to Discipline wherein I informed you of my intent to terminate you from your position. You received this notice on September 17, 2019. The Notice of Intent contained the specific grounds and bases for the issuance of this level of discipline. Additionally, the Notice provided you with information on how to exercise your procedural rights pursuant to Skelly v. State Personnel Board (1975) 15 Cal.3d 194. At your request, the Skelly meeting was scheduled for October 1, 2019. On September 30, 2019, your attorney, Mr. Goldwasser informed me via email that you would not be appearing for the prescheduled October 1, 2019 Skelly meeting. As a result, you have waived your right to appeal at the Skelly level. Therefore, please consider this notice of the Department’s decision to sustain the termination, effective today October 1, 2019. (AR 97, 647-48.)

While on administrative leave, petitioner filed a workers compensation claim and applied for industrial disability retirement (“IDR”). He filed his workers’ compensation claim against the City on March 11, 2019, asserting that he had suffered dislocated shoulders and lower back pain since October 2002. (AR 88.) On April 3, 2019, petitioner applied for IDR based on his alleged left and right shoulder dislocations and back injury. (AR 51-63.) In November 2019, CalPERS received the October 1, 2019 notice of petitioner’s termination. (AR 22, 97.)

On December 4, 2019, both petitioner and the City were notified of CalPERS’ determination to cancel petitioner’s application for IDR based on the City’s termination of his employment. (AR 65.) CalPERS asserted that petitioner’s IDR application was barred by operation of law based on Haywood v. American River Fire Protection. District (1998) 67 Cal.App.4th 1292; Smith v. City of Napa (2004) 120 Cal.App.4th 194; In the Matter of the Application for Industrial Disability Retirement of Robert Vandergoot (2013) CalPERS Precedential Decision 13-01 (Vandergoot); and In the Matter of Accepting the Application for Industrial Disability Retirement of Phillip D. MacFarland (2016) CalPERS Precedential Decision 16-01 (MacFarland).

Petitioner filed a timely appeal and requested an administrative hearing, which was limited to the issue of “whether respondent Bemowski is eligible for disability retirement based on an orthopedic (bilateral shoulders, back) condition, or whether his eligibility for industrial disability retirement is precluded by operation of Haywood and Smith.” (AR 26.) That hearing was held on July 26, 2021, and the Proposed Order of Administrative Law Judge (“ALJ”) Ji-Lan Zang was made on August 26, 2021. (AR 163, 264.) At the November 17, 2021 CalPERS Board Meeting, the Board remanded the case back to ALJ Zang for consideration of further evidence. (AR 312, 317.) The State Agency Request to Set Remand Hearing was filed on January 7, 2022. (AR 364.)

Following the Board’s rejection of an initial Proposed Decision that granted petitioner’s appeal based on inapplicable case law, the matter proceeded to a remand hearing on October 25, 2022. At the hearing on remand, Lieutenant Brian Cauble from the Chino PD testified. Lieutenant Cauble was part of the Chino PD Professional Standards Unit at the time of petitioner’s arrest, placement on administrative leave, and termination, and was personally involved in the investigation into petitioner’s misconduct. Lieutenant Cauble testified about various emails and other documents reviewed during petitioner’s personnel investigation. (AR 511-40, 649-51.) Lieutenant Cauble testified that petitioner repeatedly refused to participate in the personnel investigation into his misconduct. He also testified that petitioner refused to attend an investigatory interview and did not show up at his arbitration hearing. (See AR 544.) Lieutenant Cauble confirmed that the City did not fire petitioner due to a disabling medical condition or to preempt an otherwise valid claim for disability retirement. Petitioner was fired because of his misconduct. (AR 651.)

In an affidavit dated September 14, 2020, Nancy Franklin, police sergeant at the Chino Police Department, Professional Standards Unit, stated that petitioner was permanently separated from the City effective October 1, 2019. (AR 79.) Sergeant Franklin further declared that the City’s decision to terminate petitioner was based entirely on the Notice of Intent and its supporting facts. She reiterated that the City “did not terminate [petitioner] as a result of any alleged disabling medical condition, or to prevent or preempt [petitioner] from filing a claim for disability retirement.” (AR 79.)

Petitioner also testified at the hearing on remand. He disputed that he delayed or avoided participation in his personnel investigation by claiming that he was unable to submit to an interview because he was under medical care. (AR 651.) Petitioner admitted the conduct that ultimately led to his arrest, felony conviction, and termination. (AR 651.) Petitioner also admitted to pleading nolo contendere to a felony charge, which made him a convicted felon. (AR 651.) Petitioner testified that he attempted to apply for IDR the day after his March 7, 2019, arrest and placement on administrative leave. (AR 649.) He claimed his decision to apply for IDR was unrelated to his arrest and placement on leave the previous day. (AR 649 [petitioner testified that he did not receive Notice of Intent until 9/17/19].)

Petitioner emphasized that, on March 7, 2019, he was placed on administrative leave, which is not a disciplinary action. (AR 649.) Petitioner also testified that, during his administrative leave, he received his pay and benefits and made contributions towards his CalPERS benefits. Petitioner testified that he did not receive the Notice of Intent until September 17, 2019, more than five months after he submitted his IDR application to CalPERS on April 3, 2019. The City terminated petitioner for cause on October 1, 2019. (AR 649.)

Petitioner presented a medical report prepared by Dr. Ronny G. Ghazal in his workers’ compensation claim. (AR 152-57.) Petitioner had been seen by Dr. Ghazal on May 9, 2019, and again on June 12, 2019 for a “final evaluation.” (AR 152-53.) Dr. Ghazal prepared his declaration of his findings and recommendation in a report dated July 16, 2019. (AR 157.) Based on his tests and observations, Dr. Ghazal declared that petitioner could not perform his job based on his then current physical condition and therefore he was a “Qualified Injured Worker.” (AR 156.) Dr. Ghazal’s declaration also identified petitioner’s date of injury as March 7, 2018. (AR 152.)

ALJ Zang issued a Proposed Decision after remand denying petitioner’s appeal on January 9, 2023. (AR 657.) The Board of Administration for CalPERS adopted the Proposed Decision at its Board Meeting on February 14, 2023. (AR 658-60, 696.)

On April 7, 2023, petitioner Jason J. Bemowski filed a Verified Petition for Peremptory Writ of Mandate. On February 1, 2024, petitioner filed a First Amended Verified Petition for Peremptory Writ of Mandate. On February 16, 2024, respondent California Public Employees’ Retirement System filed an Answer. On June 24, 2024, real party in interest City of Chino filed a Return.

On September 5, 2024, petitioner filed an opening brief. On October 7, 2024, CalPERS and the City both filed oppositions. On October 22, 2024, petitioner filed a reply. The Court has received an electronic and hard copy of the administrative record.

Under CCP § 1094.5(b), the pertinent issues are whether the respondent has proceeded without jurisdiction, whether there was a fair trial, and whether there was a prejudicial abuse of discretion. An abuse of discretion is established if the agency has not proceeded in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence. (CCP § 1094.5(b).)

Because the administrative decision substantially affects a fundamental vested right, the Court exercises its independent judgment on the record. (See Prentice v. Board of Admin. (2007) 157 Cal.App.4th 983, 988.) “Retirement benefits of the nature involved here have long been held to be a vested and fundamental right.” (Molina v. Board of Admin. (2011) 200 Cal.App.4th 53, 60 [petition concerning right to receive pension benefit “in an amount specified by law”]; O’Connor v. State Teachers’ Retirement System (1996) 43 Cal.App.4th 1610, 1620 [same].)

Under the independent judgment test, “the trial court not only examines the administrative record for errors of law, but also exercises its independent judgment upon the evidence disclosed in a limited trial de novo.” (Bixby, 4 Cal.3d at 143.) The court must draw its own reasonable inferences from the evidence and make its own credibility determinations. (Morrison v. Housing Authority of the City of Los Angeles Board of Commissioners (2003) 107 Cal. App. 4th 860, 868.)

“In exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.” (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817, internal quotations omitted.) When an appellant challenges “‘the sufficiency of the evidence, all material evidence on the point must be set forth and not merely their own evidence.” (Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 317.)

Petitioner contends that he is entitled to disability retirement because he was a fully paid employee at the time he applied for IDR, or alternatively, his right to disability retirement had matured before his employment was terminated.

“[W]here…an employee is fired for cause and the discharge is neither the ultimate result of a disabling medical condition nor preemptive of an otherwise valid claim for disability retirement, the termination of the employment relationship renders the employee ineligible for disability retirement regardless of whether a timely application is filed.” (Haywood v. American River Fire Protection Dist. (1998) 67 Cal.App.4th 1292, 1307.) This is because “disability retirement laws contemplate the potential reinstatement of that relationship if the employee recovers and no longer is disabled.” (Id. at 1296.) Such laws are not intended to require an employer to pension-off an unwilling employee in order to maintain the standards of public service. (Ibid.)

However, “if a plaintiff were able to prove that the right to a disability retirement matured before the date of the event giving cause to dismiss, the dismissal cannot preempt the right to receive a disability pension for the duration of the disability.” (Smith v. City of Napa (2004) 120 Cal.App.4th 194, 206.) “A vested right [to a disability retirement] matures when there is an unconditional right to immediate payment.” (Ibid.) As applicable here, the maturity date is “when the pension board determined that the employee was no longer capable of performing his duties.” (Ibid.) In cases where there has not been any determination of eligibility, a court could deem the right to a disability retirement to have matured where the applicant (1) “had an impending ruling on a claim for a disability pension that was delayed, through no fault of his own, until after his dismissal” or (2) “was eligible for a CalPERS disability retirement, such that a favorable decision on his claim would have been a foregone conclusion (as perhaps with a loss of limb).” (Id. at 207.)

Here, petitioner’s employment was terminated on October 1, 2019 due to his felony conviction. (AR 90-95, 97, 647-48.) Further, that termination was not the result of any disabling medical condition or any attempt to preempt a valid claim of disability retirement. Two officers with the Chino Police Department’s Professional Standards Unit testified that petitioner was terminated because of petitioner’s misconduct. (AR 79, 90-95, 651.) Due to the felony conviction, petitioner could no longer serve as a police officer. (See Gov. Code § 1029(a)(1).) Accordingly, regardless of petitioner’s paid status at the time he applied for IDR, petitioner was not eligible for disability retirement because his employment relationship with the City was severed.

Petitioner is thus not entitled to approval of his IDR application unless he can prove that his right to a disability retirement matured before the termination of his employment. (Smith, 120 Cal.App.4th at 206.) Although petitioner submitted his application on April 3, 2019 (AR 51-63), which was before his termination, the CalPERS Board never approved petitioner’s application, let alone prior to April 3, 2019. Indeed, the Board declined to accept petitioner’s application on December 4, 2019, after petitioner had been terminated. (AR 65.) Petitioner thus never had a right to a disability retirement that had matured.

Petitioner fails to demonstrate any exception to a determination of eligibility by the CalPERS Board. Petitioner has not shown that his April 3, 2019 IDR application was delayed until after his dismissal. Petitioner only asserts without citation to authority or evidence that the application should have been approved by the Board before his application was cancelled on December 4, 2019. (Reply at 2:12-16; Fukuda, 20 Cal.4th at 817 [party challenging administrative decision bears burden of persuasion]; Evid. Code § 664 [agency is presumed to have regularly performed its official duties].)

With respect to whether petitioner was eligible for a disability retirement such that a favorable decision on the IDR application was a foregone conclusion, petitioner relies on the report from Dr. Ghazal with respect to his workers’ compensation claim, wherein Dr. Ghazal stated that petitioner is a “Qualified Injured Worker” and that the date of injury was March 7, 2018. (AR 152-59.) To begin with, “a workers’ compensation ruling is not binding on the issue of eligibility for disability retirement because the focus of the issues and the parties is different.” (Smith, 120 Cal.App.4th at 207.) Unlike, for example, the loss of a limb, petitioner’s purported shoulder and back injuries were certainly subject to dispute as to whether they rendered him substantially unable to perform his duties and therefore eligible for disability retirement. (Ibid.) Accordingly, petitioner’s workers’ compensation report is insufficient to establish an eligibility to disability retirement. (Ibid. [finding that entitlement to disability retirement could not rest on the plaintiff’s equivocal medical evidence].)

Petitioner relies on Willens v. Commission on Judicial Qualifications (1973) 10 Cal.3d 451 to assert that, because he was on paid administrative leave and was making CalPERS contributions when he applied for IDR, he is entitled to disability retirement. In Willens, the Supreme Court held that a judge charged for criminal conspiracy and bribery but not yet convicted may still be entitled to disability retirement, even though the charges had resulted in automatic disqualification from acting as a judge. (Willens, 10 Cal.3d at 456.) The Supreme Court relied on the principle that an accused is presumed innocent until proven guilty. (Id. at 457.)

However, Willens was based on the Judges’ Retirement Law (id. at 456-57), whereas petitioner is subject to PERL as a local safety member. As observed by the Court of Appeal, Willens “turns on peculiarities of the office of judge.” (Smith, 120 Cal.App.4th at 204.) Notably, the California Constitution explicitly provided that indicted judges are entitled to keep their salary, which includes retirement benefits, while the charges are pending. (Willens, 10 Cal.3d at 456, citing Cal. Const., art. VI, § 18, sub. (a).) By contrast, petitioner can point to no similar provision for other public employees. Moreover, the judge in Willens presented evidence of physical and emotional disabilities at the time of his IDR application. (Willens, 10 Cal.3d at 455.) Here, by contrast, for the reasons stated above, petitioner has presented insufficient evidence to establish that he would have been granted disability retirement. Petitioner’s citation to Willens is thus unavailing.

Based on the foregoing, petitioner fails to meet his burden to demonstrate an abuse of discretion in CalPERS’ decision not to accept petitioner’s application for industrial disability retirement.

The petition is DENIED. Pursuant to Local Rule 3.231(n), respondent California Public Employees’ Retirement System shall prepare, serve, and ultimately file a proposed judgment.

[1] All statutory citations refer to the Government Code, unless otherwise stated.

[2] The citations to the Administrative Record refer to Bates stamp numbers beginning with ARII.