Benefits, California HR

Is Disability Retirement ‘Honorable’ if Retiring Police Officer is Facing Termination?

A California police officer was being evaluated for not properly investigating a sexual abuse incident. The police department decided to proceed with discipline by recommending that the officer be terminated from the department. After the internal investigation was completed and the notice of intent to impose discipline was sent, the officer’s lawyer tried to extend the deadline to respond to the notice so that the officer could complete an industrial disability retirement application for a recent back injury. Was the officer eligible for disability retirement if he was in the process of being terminated?retirement

Officer Evaluated for Not Properly Investigating Sexual Abuse Incident

“Jerome,” became a police officer with the Riverside Police Department (RPD) in 1995. In June 2012, he went to a residence to investigate a 14-year-old girl’s report of sexual abuse. He had investigated similar claims by the girl in 2010, but they were determined to be unsubstantiated because she wouldn’t disclose the abuse.

During the June 2012 investigation, Jerome visited the girl at her friend’s house. She told him that her mother was physically abusing her and that she was being sexually abused by her 16-year-old brother. She didn’t want to return home because she feared her family would take her to Mexico before she could get help. Jerome took her home anyway and told her mother that he had contacted Child Protective Services (CPS).

Jerome didn’t file a police report about the incident. The next day, CPS contacted Jerome’s supervisor out of concern that the girl had been returned to her home. Another RPD detective went to the girl’s home and arrested her brother, who admitted he had been abusing her since 2010.

Jerome was investigated by the RPD’s Internal Affairs Department. A “memorandum of finding” issued on May 21, 2013, concluded that he had failed to properly investigate the incident and prepare a police report. On May 31, the chief of police reviewed the memorandum and decided to proceed with discipline by recommending that Jerome be terminated from the RPD.

That same day, Jerome was sent a “notice of intent to impose discipline,” which recommended that his employment be terminated. He was given until June 10 to respond to the termination recommendation at a formal hearing.

Officer Applies for Disability Retirement While Recommendation Pending

In October 2012, before he was investigated by Internal Affairs, Jerome suffered a back injury while he was on duty. After the internal investigation was completed and the notice of intent to impose discipline was sent, his lawyer tried to extend the deadline to respond to the notice so that Jerome could complete an industrial disability retirement application for his injured back.

Jerome applied for disability retirement on June 25, 2013. Based on his permanent work restrictions, the city of Riverside prepared a letter stating that Jerome was unable to perform his duties as a police officer. He officially retired because of his industrial disability on August 2, 2013. In light of his retirement, the termination proceedings against him were suspended.

After his disability retirement became effective, Jerome requested his retirement identification badge and asked that the badge include a Carry Concealed Weapon (CCW) endorsement. On August 29, 2013, the RPD’s assistant chief notified Jerome’s attorney that his request for a CCW endorsement would not be issued because he had applied for disability retirement in lieu of termination and he therefore wasn’t “honorably retired” as that term is defined in Penal Code Section 16690.

Court Agrees Officer Was Honorably Retired within the Meaning of the Law

Jerome asked the Superior Court of Riverside County to compel the city to issue his retirement badge with the CCW endorsement because he was honorably retired. Alternatively, he asked the court to order the city to provide him a hearing at which he could challenge the denial of his CCW privileges. He claimed that “honorably retired” is defined as a “peace officer who has qualified for, and accepted, a service or disability retirement.”

Jerome further claimed that although an exception in Penal Code Section 16690 excludes officers who have agreed to service retirement in lieu of termination, he did not agree to a service retirement in lieu of termination. He maintained that the plain language of the law is clear that his disability retirement qualified him as honorably retired. The city opposed Jerome’s request that the court compel the CWW endorsement.

The city claimed that Section 16690 generally excludes peace officers who accept any form of retirement in lieu of termination. It argued that Jerome was facing termination proceedings and took disability retirement rather than being terminated. It further argued that the court should consider the intent of the California Legislature when it drafted Section 16690, which was to exclude all officers who choose to retire rather than be terminated, whether the retirement is service- or disability-related. The city claimed that not considering the legislature’s intent and relying only on the literal meaning of the code section would result in “absurd consequences.”

The court sided with Jerome, basing its conclusion on the plain meaning of Section 16690, not the legislative intent. The court stated that Section 16690’s language “couldn’t be clearer” that the only officers removed from the definition of “honorably retired” are those who accept service retirement in lieu of termination. The court also concluded that the presumption is that the legislature meant exactly what it wrote, but if that wasn’t what lawmakers meant, it isn’t the court’s place to rewrite the law.

The city urged the court to find in its favor on the grounds that ruling in favor of Jerome was an absurd result. Jerome countered that it wasn’t absurd because unlike a service retirement, it isn’t possible to negotiate a disability retirement. Either a person is medically retired based on an on-duty injury, or he isn’t. The court agreed with that distinction and determined that Jerome didn’t fall within the plain language of the exclusion.

The city was commanded to issue Jerome’s retirement identification with the CCW endorsement or issue the badge without the CCW endorsement and provide Jerome a hearing to challenge the denial of his CCW privileges. The city appealed the court’s decision, arguing it was required to consider the legislature’s intent—that lawmakers meant to deny CCW endorsements for officers who chose to retire in lieu of termination, regardless of whether it was a disability or service retirement.

The court of appeal affirmed the trial court’s conclusion that the language of Section 16690 is clear that it excludes only officers who accept service retirement in lieu of termination, and officers who accept disability retirement are honorably retired under any circumstances. Bonome v. City of Riverside (California Court of Appeal, 4th Appellate District, 3/24/17).

Bottom Line

The court has made it clear that its interpretation of Section 16690 is based strictly on the statutory language itself. As a result, only police officers who accept service retirement in lieu of termination are excluded from being honorably retired. Officers who retire based on a disability, even while a termination proceeding is pending, are still considered honorably retired in the eyes of the law.

Beth A. Kahn and Ashley A. Escudero, contributors of California Employment Law Letter, can be reached at Morris Polich & Purdy LLP in Los Angeles, bkahn@mpplaw.com and aescudero@mpplaw.com.