The opinion
TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
JOHN K. VAN DE KAMP
Attorney General
_________________________
:
OPINION : No. 85-904
:
of : FEBRUARY 14, 1986
:
JOHN K. VAN DE KAMP :
Attorney General :
:
CLAYTON P. ROCHE :
Deputy Attorney General :
:
________________________________________________________________________
THE HONORABLE JAMES P. FOX, DISTRICT ATTORNEY, SAN
MATEO COUNTY, has requested an opinion on the following question:
Is an individual who has elected deferred retirement pursuant to section
31700 et seq. of the Government Code eligible to receive credit in a county retirement
system for prior public service pursuant to section 31641.1 of the Government Code?
CONCLUSION
An individual who has elected deferred retirement pursuant to section
31700 et seq. of the Government code is eligible to receive credit in a county retirement
system for prior public service pursuant to section 31641.1 of the Government Code.
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ANALYSIS
San Mateo County is one of twenty counties which have adopted the
County Employees Retirement Law of 1937, Government Code, section 31450 et seq.1
Article 9 of that law contains the provisions with respect to "deferred retirement."
"Deferred retirement" is an option available to county employees who have completed at
least five years of county service and then leave such service. This option permits the
employees to leave their accumulated contributions in the retirement system instead of
withdrawing them. By doing so, the employees may receive a retirement allowance from
the county at a future date based upon their county service. The earliest date would be
the date they could have retired had they remained in county service.2
The facts which give rise to this request involve a state officer who, prior to
becoming a state officer, was a county officer. As such, he had been an active "member"
of the county retirement system. (§ 31552.) Upon leaving that position, he elected to
take "deferred retirement" pursuant to article 9. He has now requested that he receive
credit in the county retirement system pursuant to section 31641.1 for military service
which he completed before entering county service.3 Section 31641.1 provides:
"A member who was in public service before becoming a member
may elect by written notice filed with the board to make contributions
pursuant to Section 31641.2 and to receive credit in the retirement system
for all allowed public service time. Credit for part-time service shall be
calculated as provided in Section 31641.5."
1
All section references are to the Government Code unless otherwise indicated.
2
Section 31700 provides:
"Any member, whether over or under the minimum age of voluntary
service retirement, who leaves county service after completing five years of
service or who leaves county service and within 90 days becomes a member of
the Public Employees' Retirement System, or a retirement system established
under this chapter in another county, may elect in writing, within 180 days after
leaving county service, to leave his accumulated contributions in the retirement
fund and be granted a deferred retirement allowance to become effective either:
"(a) Upon the option of the member, at any time at which he could have
retired had he remained in county service in a full-time position, or
"(b) Not later than the first day of the month following that in which he attains the
compulsory retirement age."
3
He is not entitled to receive any military pension or retirement allowance. (See section
31641.4.) Military service qualifies as prior "public service." (30 Ops.Cal.Atty.Gen. 49 (1957.
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Section 31641.2 then provides that "[a]ny member of the retirement system" who makes
that election shall also make appropriate contributions to the retirement fund "prior to the
effective date of his retirement."4
The critical question as to his eligibility is, what does the word "member"
mean in sections 31641.1 and 31641.2? Does it include employees who have already
elected "deferred retirement" (hereinafter, "deferred retirement members"), or is it
restricted to current county employees (hereinafter, "active members")?
Prior to 1974 the county retirement law of 1937 did not contain provisions
for deferred retirement or provisions for prior public service credit. The deferred
retirement article was added by chapter 825, Statutes of 1945, as Article 7.5 (see now
article 9, section 31700 et seq). At that time the definition of "member" contained in the
original act was amended to include deferred retirement members. Accordingly, section
18 of the 1937 act was amended in 1945 to read:
"Sec.18. 'Member' means any person included in the membership of
the retirement association as set forth in Article 2, or any person who has
elected in writing to come within the provisions of Article 7.5." (Stats.
1945, ch. 825, § 1; emphasis added.)
Ten years later, the 1937 act was amended to add section 31641.1 to authorize counties at
their option to grant retirement credits to "members" for prior public service. (Stats. 1955,
ch. 363.)
From the foregoing sequence of events, it would appear reasonable to
conclude that the Legislature intended that the word "member" as used in section 31641.1
should mean both active members and deferred retirement members. This would seem to
flow from the fact that the 1937 act already had defined member to include both. It
would also seem to flow from the fact that the Legislature, in enacting section 31641.1,
made no attempt in that section to differentiate between the two classes of members.
Despite what appears to us to be the reasonable construction of section
31641.1, we are informed that the local administrative practice is divergent, with some
counties granting prior public service credit to deferred retirement members and others
denying it. The latter counties would point out that neither sections 31641.1 nor 31641.2
are contained in nor are in any manner cross- referenced in Article 9, the "deferred
retirement" article. However, the primary argument they would advance for denying
4
4. San Mateo County adopted the necessary resolution to make section 31641.1 applicable
to the state officer in question. (See § 31641.95.)
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credit arises from their construction of section 31470, which defines "member". That
section presently provides:
"'Member' means any person included in the membership of the
retirement association pursuant to Article 4, and includes safety members
as defined in sections 31469.3, 31470.2, 31470.4 and 31470.6, or any
person who has elected in writing to come within the provisions of Article
9." (Emphasis added.)
Their argument points out that the words "and includes safety members as defined in
sections 31469.3, 31470.2, 31470.4 and 31470.6" were added to the section subsequent to
1945, when the deferred retirement provisions were added to the 1937 law; and that,
consequently, as originally amended in 1945, the definition of "member" presented a
definition which clearly precluded both active members and deferred retirement members
from falling within the purview of section 31641.1. As will be recalled, in 1945 section
18 of the 1937 retirement law was amended to read:
"Sec.18. 'Member' means any person included in the membership of
the retirement association as set forth in Article 2, or any person who has
elected in writing to come within the provisions of Article 7.5." (Stats.
1945, ch. 825, 1; emphasis added.)5
Accordingly, or so goes the argument, by using the disjunctive "or" in the
definition of "member", the Legislature intended that term, when found in a provision
such as section 31641.1, to mean either active member or deferred retirement member,
but not both; that had it intended to mean both, it would have used "and" in the section.
Those counties which would grant benefits under section 31641.1 for prior
public service would reject this approach. Such approach could be rejected on the basis
that the use of "or" in the definition of "member" instead of the word "and" is merely a
recognition that a single individual can be only an active member or a retired member;
that he cannot be both at the same time. Accordingly, under this argument, the word "or"
is the appropriate connective to include both active members or deferred retirement
members as individuals.
We believe this points out graphically that the words "or" and "and" are not
absolutes, but are occasionally ambiguous. Although no California case law which we
5
Present article 4 contains the provisions with respect to membership of current county
employees which were previously found in article 2. And as noted above, article 9, providing for
deferred retirement, was originally article 7.5.
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have found discusses these connectives in such terms6, a most enlightening and
convincing discussion of the difficulties facing lawyers in the use and interpretation of
the words "and" and "or" may be found in the American Bar Association article,
Dickerson, "The Difficult Choice Between 'And' and 'Or'", (46 A.B.A.J. 310, March
1960). Such article notes:
"The difference between 'and' and 'or' is usually explained by saying
that 'and' stands for the conjunctive, connective, or additive and 'or' for the
disjunctive or alternative. The former connotes 'togetherness' and the latter
tells you to 'take your pick'. So much is clear. Beyond this point,
difficulties arise.
"One difficulty is that each of these two words is on some occasions
ambiguous. Thus, it is not always clear whether the writer intends the
inclusive 'or' (A or B, or both) or the exclusive 'or' (A or B, but not both).
This long recognized uncertainty has given rise to the abortive attempt to
develop 'and/or' as an acceptable English equivalent to the Latin 'vel' (the
inclusive 'or').
"What has not been so well recognized is that there is a
corresponding, though less frequent, uncertainty in the use of 'and'. Thus, it
is not always clear whether the writer intends the several 'and' (A and B,
jointly or severally) or the joint 'and' (A and B, jointly but not severally).
This uncertainty will surprise some, because 'and' is normally used in the
former sense.
". . . . . . . . . . . . . . . . . . . . . .
"Observation of legal usage suggests that in most cases 'or' is used in
the inclusive rather than the exclusive sense, while "and" is used in the
several rather than the joint sense. If true, this is significant for legal
draftsmen and other writers, because it means that in the absence of special
circumstances they can rely on simple 'or's' and 'and's' to carry these
6
The case law usually states that the word "or" intends alternatives, that is, "either this or
that." Accordingly, if the court feels both should be included, it will substitute "and" for "or".
(See generally, e.g., De Sylva v. Ballentine (1956) 351 U.S. 570, 573-580; Houge v. Ford (1955)
44 Cal.2d 706, 712; People v. Smith (1955) 44 Cal.2d 77, 78-79 Bianco v. Ind.Arc. Com.(1944)
24 Cal.2d 584, 587; Universal Sales Corp. v. Cal.Etc. Mfg. Co. (1942) 20 Cal.2d 751, 775-776;
Arnold v. Hopkins (1928) 203 Cal.553, 562-564; Los Angeles County - U.S.C. Medical Center v.
Superior Court (1984) 155 Cal.App.3d 454, 461.)
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respective meanings. This, incidentally, greatly reduces the number of
occasions for using the undesirable expression 'and/or' or one of its more
respectable equivalents, such as 'A or B, or both', or 'either or both of the
following'." (Id., at pp. 310-311, fns. omitted.)
That the use of the word "or" in defining a "member" for purposes of the
county retirement system can be ambiguous is evident from the foregoing discussion.
That it may be to some degree ambiguous in the 1937 act is evident from the
administrative construction given to the definition found in section 31470 by 1937 act
counties. The counties which would grant benefits for prior public service under section
31641.1 would be applying the inclusive "or." Those which would deny such benefits
would be applying the exclusive "or."
Having established that some ambiguity may exist in the 1937 law with
respect to the meaning of "member" as used in section 31461.1, the prior public service
credit provision, we believe that the resolution of the question presented should be
determined from the following rule of statutory construction. As stated recently in Flint
v. Sacramento County Employees' Retirement Assn. (1985) 164 Cal.App.3d 659, 666:
"It is well established that pension legislation 'should be liberally
construed resolving all ambiguities in favor of the applicant.' (Neeley v.
Board of Retirement (1974) 36 Cal.App.3d 815, 822 [111 Cal.Rptr. 841];
see Gorman v. Cranston (1966) 64 Cal.2d 441, 444 [50 Cal.Rptr. 533, 413
P.2d 133].). . ."7
Resolving any possible ambiguity in favor of the applicant state officer, we
conclude that he is eligible to receive credit for his prior public services, that is, his
military service, pursuant to section 31641.1.
*****
7
See also generally Hittle v. Santa Barbara County Employees Retirement Assn. (1985) 39
Cal.3d 374, 390 and Wheeler v. Board of Administration (1979) 25 Cal.3d 600, 604-605 for more
recent applications of the basic rule of liberal construction in favor of the retired employee.
We also note that some support for our ultimate conclusion herein may be found in the case
Dodosh v. County of Orange (1981) 127 Cal.App.3d 936.
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