Opinion

Lanquist v. Ventura County Employees' Retirement Ass'n

  • 235 Cal. App. 4th 186
  • 185 Cal. Rptr. 3d 166
  • 2015 Cal. App. LEXIS 239
Court
California Court of Appeal
Filed
Mar 16, 2015
Status
Published
Author
Gilbert
On the bench
Gilbert, Yegan, Perren
Cited by
5 cases
Authority
More cited than 50.1%

The opinion

Filed 3/16/15

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

TIMOTHY S. LANQUIST et al., 2d Civil No. B251179

(Super. Ct. No. 56-2011-404515-

Plaintiffs and Appellants, CU-WM-VTA )

(Ventura County)

v.

VENTURA COUNTY EMPLOYEES'

RETIREMENT ASSOCIATION,

Defendant and Respondent;

COUNTY OF VENTURA,

Real Party in Interest and Respondent.

Ventura County Employees’ Retirement Association (VCERA) permits

employees to purchase retirement service credit for time spent in military service. It

excludes time spent as a midshipman at the United States Naval Academy (Academy).

Our interpretation of a Ventura County Board of Supervisors' resolution, adopting the

County Employees Retirement Law (CERL), leads us to the opposite conclusion.

"Military service" includes service as a midshipman. (Gov. Code, § 31450 et seq.)1

Ventura County employees Timothy S. Lanquist and Thomas W. Temple

appeal a judgment denying their petition for a writ of mandamus to compel VCERA to

grant their requests to purchase retirement service credit for military service as

1

All statutory references are to the Government Code unless otherwise stated.

midshipmen at the Academy. We reverse the judgment and direct the trial court to issue a

writ of mandamus requiring VCERA to grant their requests.

FACTUAL AND PROCEDURAL BACKGROUND

Lanquist and Temple served as midshipmen at the Academy for about four

years before they became commissioned naval officers. Temple was enlisted before he

attended the Academy; Lanquist was not. Both men later became employees of Ventura

County. Lanquist is a deputy sheriff, and Temple is an assistant county counsel. They are

members of VCERA.

Lanquist and Temple applied to VCERA to purchase retirement service

credit for their military service. They supported their requests with copies of their

"DD214" forms. The Department of Defense uses DD214 forms to record and report

transfer or separation of military personnel from a period of active duty. (32 C.F.R.

§ 45.2.) Lanquist's and Temple's forms did not include their Academy time in the box

labeled "Record of Service." Temple's form did include a "Remark" that reported his

Academy time.

Lanquist and Temple supplemented their DD214 forms with letters from the

Department of the Navy certifying that their service of four years as midshipmen at the

Academy was "continuous active duty." The letters, signed by the Academy's registrar,

state that Lanquist and Temple "attended the United States Naval Academy on continuous

active duty in the U.S. Navy." While attending, they were compensated by "pay and

allowances as were authorized for an active duty member of the Navy," and were subject

to the Uniform Code of Military Justice.2 The letters also refer to two provisions of the

United States Code that define "active duty" to include "attendance, while in the active

military service, at a school designated as a service school."3

VCERA denied Lanquist's and Temple's requests to purchase retirement

service credit for midshipmen service at the Academy. It granted, however, their requests

2

(10 U.S.C. § 802(a)(2) [Uniform Code of Military Justice applies to "[c]adets, aviation

cadets, and midshipmen"].)

3

(10 USCS § 101(d)(1); 37 U.S.C. 101(18).)

2.

to purchase retirement service credit for all other military service. This included 40 weeks

Temple spent at the Naval Academy Preparatory School before he attended the Academy

and two years Lanquist spent afterward at the Naval Postgraduate School earning a

master's degree.

VCERA explained that it did not consider service as a midshipman at the

Academy to be creditable "active duty." It based its decision on a 1979 legal opinion letter

prepared by an assistant county counsel. The 1979 letter "appl[ied] rules of statutory

construction" to conclude that "military academy schooling does not qualify as creditable

public service; to qualify as creditable public service, military service must be active

military duty in the armed forces of the United States." Counsel reasoned that the

"ordinary meaning" of "military service" in the CERL is "active service," based on several

opinions of the California Attorney General that considered the question whether

creditable service for military service is active duty. Those opinions did not discuss

academy time or federal law defining the term "military service" or "active duty."

In a subsequent letter to Lanquist in 2007, VCERA "confirm[ed] [its] prior

conclusion that such schooling [at the Academy] does not constitute 'active duty' military

service" and he is therefore ineligible for retirement service credit. VCERA relied on

federal authorities to conclude that training at a military academy is only "active duty" if it

takes place after an officer is commissioned. It cited section 971 of title 10 of the United

States Code for the proposition that general military law "does not consider academy

schooling as active duty 'service' when computing length of service for any purpose,

including eligibility for retirement service credit."4

Lanquist and Temple appealed VCERA's denial to the VCERA retirement

board. At the hearing, Lanquist and Temple presented evidence that as midshipmen at the

Academy they were compensated as active duty servicemen and experienced hardships

and dangers on surface cruises with active naval vessels similar to those experienced by

commissioned officers.

4

"[S]ervice as a cadet or midshipman . . . may not be counted in computing, for any

purpose, the length of service of an officer . . . ." (10 U.S.C. § 971(a).)

3.

The retirement board upheld VCERA's denial, on a two-to-six vote, with one

abstention. Two members stated their belief that they "have to comply with [County of

Ventura's] interpretation of the resolution" in the 1979 opinion letter. One member asked

staff to research the issue whether the retirement board had authority to promulgate a rule

allowing credit for Academy time.

Lanquist and Temple filed a petition for writ of mandamus and complaint for

declaratory relief in the trial court. In addition to the administrative record, they requested

judicial notice of various legislative, administrative, and other official acts of the United

States government pertaining to cadets and midshipmen.

VCERA submitted a declaration from VCERA's retirement benefits

manager. The manager stated that VCERA allows military service credit only for that

"period reported in the member's [DD214] Record of Service," and has followed this

policy for over 30 years. It does so in reliance on the 1979 opinion letter, and "later

opinions [that] confirm and expand upon the 1979 opinion" to explain that "military

academy service" is ineligible because the "DD Form 214's do not identify . . . academy

attendance . . . as active duty service," and because "such service is not identified by the

Department of the Navy as active duty service that is creditable for retirement pay."

The VCERA retirement benefits manager declared that written procedures

for processing "buy back" requests require certification for "active military service" with a

DD214 form. VCERA uses a "Public Service Worksheet" to calculate the cost of service

credit purchases. That worksheet requires the retirement specialist to record the "Dates of

Service" and to indicate the source of proof as "DD214" or "other." The manager declared

that VCERA does not accept evidence of compensation as a cadet or midshipman at the

Academy as proof of prior military service.

Lanquist and Temple submitted a declaration of Clifford L. Williams, Jr., a

Ventura County district attorney investigator, who stated that VCERA denied his request

to purchase retirement service credit as a cadet at the United States Air Force Academy in

2011, although that period of service was listed in the "Record of Service" block of his

DD214 form. Williams's form is an older version than the forms issued to Lanquist and

4.

Temple. It includes a remark: "Ref Item #18a is cadet time at USAF Academy and not

creditable for basic pay purposes in a commissioned status."

The trial court denied the petition. It determined that VCERA's policy of

denying retirement service credit for service at the Academy is "appropriate" in view of

state and federal authorities interpreting the terms "public service," and "active duty." It

gave "some consideration" to VCERA's interpretation, in deference to VCERA's technical

expertise with regard to administration of retirement systems.

DISCUSSION

Standard of Review – Agency Interpretation of Statute

Our review of the trial court's decision is de novo. (Prentice v. Board of

Administration (2007) 157 Cal.App.4th 983, 989.) Our review of an agency's quasi-

legislative administrative decision is limited to a determination whether the action was

arbitrary, capricious, lacking in evidentiary support, or contrary to procedures provided by

law. (Code Civ. Proc., § 1085; California Teachers Assn. v. Ingwerson (1996) 46

Cal.App.4th 860, 867.) But our review of an agency's interpretation of a statute is not so

limited. (Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 7.)

We "'tak[e] ultimate responsibility for the construction of the statute, [but] accord[] great

weight and respect to the administrative construction.'" (Id. at p. 12.) The quasi-

legislative standard of review is not applicable here because VCERA did not exercise

discretionary rule-making power; it merely construed a statute. (Ibid.)

The weight we accord VCERA's interpretation depends upon factors that

include the agency's expertise and technical knowledge, indications of careful

consideration by the agency's senior officials, evidence that the agency consistently

maintained the interpretation over time, and indications that the interpretation was

coterminous with enactment of the statute. (Yamaha Corp. of America v. State Bd. of

Equalization, supra, 19 Cal. 4th 1, 12.) An interpretation of a statute contained in a

regulation adopted after public notice and comment is more deserving of deference than

one contained in an opinion letter prepared by a single staff member. (Id. at p. 13.)

VCERA's denial was based on an opinion letter prepared by counsel that interpreted the

5.

CERL and the resolution. It is not embodied in a regulation. VCERA has expertise and

technical knowledge in the operation and management of a retirement plan, but it does not

have expertise in the nature of active military service. It has plenary authority over

administration of the retirement system only within the confines of the CERL. (Cal.

Const., art. XVI, § 17; § 31520 [management of a county retirement system vested in the

retirement board].) Like the trial court, we give VCERA's interpretation due

consideration. But we reach a different result.

The Statutory Framework

Under the CERL, a county employee may purchase additional retirement

service credit based on "allowed" prior service for a public agency if the county has

adopted the applicable provisions of the CERL. (§§ 31641.1, 31641.95.5) The United

States military is a public agency for purposes of the CERL. (Ibid.) A county's board of

supervisors may limit applicability to one or more public agencies. (§ 31641.95;

Association of Orange County Deputy Sheriffs v. County of Orange (1982) 138 Cal.App.3d

569, 570, 572 [Orange County properly limited applicability to exclude all military

service].)

In 1974, the Ventura County Board of Supervisors (Board) adopted the

provisions of the CERL that authorize purchase of retirement service credit for previous

"military service." It did not limit or define that term. It did not adopt any resolution

excluding service as a midshipman at the Academy from eligible "military service." 6 The

term "military service" is not defined by the CERL. VCERA has promulgated no rules to

define or limit it.

5

"Sections 31470.7, 31478, 31479, 31480, 31641.1, 31641.2, 31641.3, 31641.4, 31641.8,

and 31641.9 may only be applicable in any county or district on the first day of the month

after the governing board of such county or district adopts, by majority vote, a resolution

providing that those sections shall become applicable in such county or district. Such

resolution may limit the applicability of such sections to any one or more of the public

agencies as defined by Section 31478." (§ 31641.95.)

6

We express no opinion on its authority to do so.

6.

A handbook submitted by VCERA defines "public service" to include

employment with any department or agency of the United States government, including

"active military service." In response to a request for public information, VCERA stated it

has "no particular records that evidence the definition of 'military service' or 'service in the

armed forces.'" VCERA's retirement benefits manager declared that its written procedures

require certification of military service with a DD214 form.

The CERL defines creditable "public service" to be service rendered (a) for

"compensation," and (b) as "an officer or employee" of a public agency, such as the U.S.

military. (§§ 31479, 31478.) VCERA contends that midshipmen are neither compensated

nor employees and their service is, therefore, not creditable.

(a) Midshipmen Compensation

Lanquist and Temple submitted evidence that they "received compensation"

as midshipmen by "pay and allowances as were authorized for an active duty member of

the Navy." VCERA contends the letters from the Department of Defense are immaterial

because the CERL requires that the service be "established to the satisfaction of the

[county's retirement] board." (§ 31641.4.) That is only part of a disjunctive provision.

Section 31641.4 provides: "The service for which he elects to contribute . . . must be

certified to by an officer of the public agency where he rendered such public service or

must be established to the satisfaction of the board." (Italics added.) The Board adopted

this provision without limitation. The Navy is the agency where Lanquist and Temple

rendered service. The letters certified that both men were "on continuous active duty" and

were compensated by "pay and allowances as were authorized for an active duty member

of the Navy." The letters satisfy section 31641.4.

(b) Midshipmen as Employees

The California Attorney General has broadly interpreted the term

"employee" in sections 31479 and 31478 to include "enlisted men."7 (30

Ops.Cal.Atty.Gen. 49, 51 (1957).) The Attorney General has not considered whether

"employee" includes a person who attends a military academy. The term "employee" has

7

We prefer "persons."

7.

no fixed meaning. (Knight v. Board of Administration (1948) 32 Cal.2d 400, 402.) "The

flexibility of the term 'employee' is of special significance when considered in connection

with the rule that statutory provisions for pensions must be liberally construed to the end

that their beneficial purposes are broadened rather than narrowed." (Ibid.)

In determining the meaning of a statute, we look first to its language as the

most reliable indicator of legislative intent, giving the words their ordinary and usual

meaning and construing them in their statutory context. (Commission on Peace Officer

Standards & Training v. Superior Court (2007) 42 Cal.4th 278, 305.) If the plain,

commonsense meaning of a statute's words is unambiguous, the plain meaning controls.

(Ibid.) The terms "officer or employee of a public agency" and "military service" do not

plainly exclude service as a midshipman. In the absence of any further definition in the

CERL, we consider (but are not bound by) the federal government's use of the term

"military service" in the context of retirement service credit for midshipmen.

The general military law defines "active duty" to include "attendance, while

in the active military service, at a school designated as a service school by law or by the

Secretary of the military department concerned." (10 U.S.C. § 101(d)(1) [definitions

applicable to title 10, Armed Forces]; 37 U.S.C. § 101(18) [definitions applicable to title

37, Pay and Allowances of the Uniformed Services]; 38 U.S.C. § 101(21) [definitions

applicable to title 38, Veterans' Benefits].8)

A retiring federal civilian employee may purchase credit for military

academy time in the federal retirement system. (5 U.S.C. §§ 8332(c)(1)(B) [civil service

retirement credit shall include credit for "military service"]; 8331(13)(C) ["military

service" is honorable active service including service "as a midshipman at the United

States Naval Academy"]; 8411(c)(1) [a member of the Federal Employee's Retirement

8

"Active duty" is "full-time duty in the active military service of the United States,"

including "full-time training duty, annual training duty, and attendance, while in the active

military service, at a school designated as a service school by law or by the Secretary of

the military department concerned." (10 U.S.C. § 101(d)(1); 37 U.S.C. § 101(18).)

"Active duty" includes "service as a cadet at the United States Military, Air Force, or Coast

Guard Academy, or as a midshipman at the United States Naval Academy." (38 USCS

§ 101(21)(D).)

8.

System shall be allowed credit for "military service"]; 8401(31)(C) ["military service" is

honorable active service including service "as a midshipman at the United States Naval

Academy"].) The contrary holding in Horner v. Jeffrey (Fed.Cir. 1987) 823 F.2d 1521

(Horner) was superseded by enactment of 5 United States Code section 8331. The United

States Office of Personnel Management requested the enactment in 2007 to "clarify the use

of service as a cadet at a U.S. military academy for civilian retirement purposes,"

consistent with a "long-standing policy."

A retiring enlisted person is allowed retirement service credit for service as a

midshipman at the Academy, but a retiring officer is not. (10 U.S.C. §§ 8911 [service

years for enlisted retirement], 971(a) ["The period of service under an enlistment or period

of obligated service while also performing service as a cadet or midshipman or serving as a

midshipman . . . may not be counted in computing, for any purpose, the length of service

of an officer"].)

Thus, an enlisted staff sergeant is allowed retirement service credit for prior

service at a military academy (1980 U.S. Comp.Gen. LEXIS 3352); whereas, a Coast

Guard officer is not. (Jacobs v. U.S. (9th Cir. 1982) 680 F.2d 88.) "[S]ervice as a cadet or

midshipman at a service academy is creditable for the purpose of determining eligibility

for retirement under 10 U.S.C. 8914 (enlisted retirement) but is not creditable for a

member retiring under 10 U.S.C. 8911 (commissioned officer retirement)." (1980

Comp.Gen., supra.) Similarly, the United States Bureau of Naval Personnel, Instructions

for Issuance of DD 214 provides at page 11: "[S]ervice while attending a service academy

as a midshipman, USN, or as a cadet is creditable for enlisted members reverted to enlisted

status, but in no case is it creditable for warrant or commissioned officers."

VCERA points out that Lanquist and Temple were both commissioned

officers before they separated from the military. But they are not commissioned officers

now. They are not retiring in a commissioned officer status.

An enlisted person is allowed retirement service credit for Academy time

even if they were a commissioned officer for a period of time. For example, in the

Comptroller General’s opinion, Staff Sergeant Shirley was entitled to credit in the military

9.

retirement system for his four years of service as a cadet at the Air Force Academy, even

though he was a commissioned officer for 14 years, because he was not an officer when he

retired. He resigned from his appointment as an officer and later enlisted in the regular

Air Force; then he retired. (1980 U.S. Comp.Gen., supra.)

Like Staff Sergeant Shirley, Lanquist and Temple are no longer

commissioned officers. They are former commissioned officers who separated from the

military and became civilian public employees before retiring. The military therefore

would consider their attendance at the Academy to be "military service" and "active duty"

for purposes of retirement service credit. (5 U.S.C. §§ 8332(c)(1)(B), 8331(13),

8411(c)(1), 8401(31).) The language of the CERL does not suggest our Legislature

intended more restrictive use of the terms. The Board has not acted to limit credit for

military service under the CERL. Accordingly, we interpret the terms "public service" and

"military service," as used in the CERL, and adopted by the Board, to include service as a

midshipman at the Academy.

California Public Employees' Retirement System's (CalPERS) Policy

With Regard to Academy Time

We are not persuaded by VCERA's unproven assertion that CalPERS

excludes Academy time. The Government Code provides that a member of CalPERS may

purchase prior retirement service credit for "active service with the Armed Forces or the

Merchant Marine of the United States." (§§ 21024, 21050.) The term "active service" is

undefined. The CalPERS Board of Administration has promulgated rules governing its

administration, but none interpret or limit the term "active service."

Other States' Practices With Regard to Academy Time

VCERA cites several out-of-state cases that uphold agency decisions to deny

retirement service credit for Academy time. (Donovan v. State Employees' Retirement

System (Pa. 1997) 701 A.2d 310; Canzoneri v. Hevesi (N.Y. 2005) 2l A.D.3d 639; Morris

v. Division of Retirement (Fla. 1997) 696 So.2d 380; Crawford v. Department of

Transportation (Fed.Cir. 2004) 373 F.3d 1155; Whalen v. Office of Personnel

Management (Fed.Cir. 1992) 959 F.2d 924.) These cases are unpersuasive because they

10.

involve dissimilar statutory schemes, rely on the superseded Horner opinion, or are

factually inapposite.

DISPOSITION

We reverse the judgment and direct the trial court to issue a writ of

mandamus requiring VCERA to allow Lanquist and Temple to purchase retirement service

credit for midshipman service at the Academy. Costs are awarded to appellants Lanquist

and Temple.

CERTIFIED FOR PUBLICATION.

GILBERT, P. J.

We concur:

YEGAN, J.

PERREN, J.

11.

Mark S. Borrell, Judge

Superior Court County of Ventura

______________________________

Timothy S. Lanquist, in pro. per., for Plaintiff and Appellant.

Thomas W. Temple, in pro. per., for Plaintiff and Appellant.

Leroy Smith, County Counsel, Lori A. Nemiroff, Assistant County Counsel,

for Defendant and Respondent Ventura County Employees' Retirement Association.

Atkinson, Andelson, Loya, Ruud & Romo, Edward B. Reitkopp for Real

Party in Interest and Respondent County of Ventura.

12.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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