Jelincic v. Cal. Public Employees Retirement System etc. CA1/1

Filed 12/15/23 Jelincic v. Cal. Public Employees Retirement System etc. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or

ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

JOSEPH JOHN JELINCIC, JR.,

Plaintiff and Appellant,

A165562

v.

CALIFORNIA PUBLIC (Alameda County

EMPLOYEES’ RETIREMENT Super. Ct. No. RG21090970)

SYSTEM BOARD OF

ADMINISTRATION,

Defendant and Respondent.

Plaintiff Joseph John Jelincic, Jr., filed a petition for writ of mandate

seeking declaratory and injunctive relief for alleged violations of the Bagley-

Keene Open Meeting Act (Bagley-Keene Act; Gov. Code, § 11120 et seq.) in

connection with an August 17, 2020 closed session meeting of the California

Public Employees’ Retirement System (CalPERS) Board of Administration

following the resignation of its former chief investment officer (CIO), Ben

Meng. Among other things, plaintiff sought a declaration that CalPERS

improperly relied on Government Code1 section 11126, subdivision (a)(1)

(section 11126(a)(1)) to discuss matters pertaining to the CIO in closed

1 All further statutory references are to the Government Code unless

otherwise indicated.

session, and injunctive relief prohibiting CalPERS from citing that section to

authorize closed session discussions related to its CIO in future.

The trial court concluded the August 2020 meeting had been

improperly closed and ordered the production of records and most of the

transcript from the meeting. As to the application of section 11126(a)(1), the

so-called “personnel exception” to open-meeting requirements, the trial court

ruled it was “[o]bjectively” not a basis to close the meeting in this case

because none of the subjects authorized to be discussed in closed session

under that section were discussed at the meeting. The trial court determined

the injunctive relief sought by plaintiff was moot.

On appeal, plaintiff contends that CalPERS may not rely on

section 11126(a)(1) to discuss matters related to its CIO in closed session, and

may not cite that section on meeting agendas to justify closed sessions about

the CIO. The parties disagree as to whether this appeal presents a

justiciable issue, and if so, whether section 11126(a)(1) authorizes CalPERS

to hold closed sessions to have discussions related to its CIO.

As we explain below, we conclude that the question is justiciable.

However, whether the personnel exception in the Bagley-Keene Act applies to

the CalPERS CIO ultimately depends on whether the CIO is a public officer

within the meaning of the statute. Because the resolution of that question is

a mixed question of law and fact that plaintiff failed to raise in the trial court

and we are unable to resolve on this undeveloped record, we will affirm.

I. BACKGROUND

On August 5, 2020, CalPERS CIO Ben Meng resigned, following

accusations he had violated conflict-of-interest laws and failed to make

financial disclosures required under California’s Political Reform Act of 1974

(§ 81000 et seq.). A meeting of the CalPERS Board of Administration (the

2

Board) was noticed for August 17, 2020. The agenda for the meeting listed as

its sole substantive item the “ ‘Chief Executive Officer’s Briefing on

Performance, Employment, and Personnel Items,’ ” which was to be a closed

session pursuant to section 11126, subdivisions (a)(1), (e), and (g)(1). The

Board held the closed session on August 17. After the meeting, plaintiff and

his counsel submitted a public records request to CalPERS for a copy of the

closed session transcript. CalPERS denied the request, asserting the meeting

had been properly closed to discuss personnel matters under section 11126,

subdivisions (a) and (g) (hereafter section 11126(a) and section 11126(g),

respectively).

On March 8, 2021, plaintiff filed a petition for writ of mandate and

complaint for equitable relief in the Alameda County Superior Court, alleging

violations of the Public Records Act (former § 6250 et seq.) and the Bagley-

Keene Act in connection with the closed session meeting held by the Board

following Meng’s resignation. Among other things, plaintiff alleged in his

verified petition that (1) section 11126(a)(1) does not apply to discussions

regarding the CalPERS CIO, and that such discussions are instead governed

exclusively by section 11126, subdivision (g)(1) (section 11126(g)(1)); (2) the

August 17 meeting was improperly closed to discuss matters related to the

CalPERS CIO, and CalPERS continues to take the position it was lawful to

do so; and (3) unless enjoined, CalPERS would continue to expend public

funds by improperly closing its meetings and listing section 11126(a)(1) on its

agendas when the only personnel matters it planned to discuss relate to the

employment of the CIO.

3

In addition to seeking disclosure of the full meeting transcript,2

plaintiff sought a declaration from the court that the “August 17, 2020 closed

session violated the Bagley-Keene Act because the Board discussed matters

that were not covered in its disclosure and that cannot lawfully be discussed

in closed session,” and that “§ 11126(a) does not authorize the Board to hold a

closed session to discuss matters relating to its CIO, and that closed sessions

to discuss such matters are instead governed by § 11126(g).” Plaintiff further

asked the court to order the Board “not to cite Government Code § 11126(a)

on its agendas as authority to close a session when the only personnel

matters to be discussed in that closed session relate to the CIO.”

On December 20, 2021, the trial court issued an order granting

judgment and issuing a writ of mandate, which ordered disclosure of most of

the closed session transcript. The court concluded CalPERS appropriately

withheld a few small portions of the transcript as attorney-client privileged

material and under section 11126(g)(1), but that “the vast majority” of the

transcript should have been disclosed because “the primary purpose of the

closed session appears to have been to have a wide-ranging discussion of

existing CalPERS conflict of interest rules, procedures, and processes” rather

than a briefing by or for the chief executive officer (CEO) related to

“ ‘Performance, Employment, and Personnel Items’ ” as indicated on the

meeting agenda.

2 Plaintiff’s petition for writ of mandate and complaint for equitable

relief sought records related to the closed meeting on August 17, 2020, and

separately sought records related to investments with a market value lower

than their reported value under former section 6254.26. Plaintiff does not

raise any challenge to the public records aspects of the proceedings in this

appeal.

4

With respect to the application of section 11126(a)(1), the trial court’s

order stated: “Plaintiff argues that the Court should not consider whether

the August 17, 2020 meeting could be closed under Section 11126(a)(1)

because employment issues relating to the Chief Investment Officer fall

under the more-specific Section 11126(g). The Court disagrees and will

consider both exceptions. Both Sections materially overlap. That said,

Section 11126(a)(1) does not appear to carve out any particular subset of

employees. Nor does Section 11126(g) indicate that the protections under

Section 11126(a)(1) are not also applicable to Board discussions about the

CIO.

“The agenda for the August 17, 2020 closed session indicated that the

Board would hear the ‘Chief Executive Officer’s Briefing on Performance,

Employment, and Personnel Items.’ . . . While this opaque description

suggests that someone thought section 11126(a)(1) might be a basis for

closing the meeting, further thought needed to be given before closing it.

“On August 5, 2020, Mr. Meng resigned as the CalPERS Chief

Investment Officer. Conflict of interest issues appeared to motivate his

resignation. . . . No one at the August 17 closed session had a copy of a

performance evaluation for the CIO. It does not objectively appear that the

Board intended to discuss his performance. He was not being appointed or

hired/employed, and he was not being dismissed. Again, Mr. Meng had just

resigned. Objectively, Section 11126(a)(1) could not be the basis for closing

the meeting.” The court rejected CalPERS’s argument that the meeting was

properly closed under section 11126(a)(1) to discuss the CEO’s “ ‘oversight

and implementation of policies and safeguards’ ” or the CEO’s performance

evaluation.

5

Several months later, on April 12, 2022, the trial court issued a second

order with respect to certain portions of the transcript withheld under the

public interest exemption of the Public Records Act. The court entered

judgment granting in part and denying in part the petition for writ of

mandate.

Plaintiff subsequently filed a petition for writ of mandate with this

court, seeking review of the trial court’s findings that CalPERS properly

withheld the privileged portions of the transcript. We denied the petition on

the merits and the California Supreme Court denied review. While the writ

proceeding was pending in this court, plaintiff appealed from the judgment.

II. DISCUSSION

Plaintiff contends the sole issue in this appeal is a question of statutory

interpretation—whether CalPERS may hold a closed session to discuss the

“appointment, employment, evaluation of performance, or dismissal” of its

CIO under the general personnel exception of section 11126(a)(1), or whether

CalPERS may only rely on section 11126(g)(1) to hold closed sessions related

to “recruitment or removal” of the CIO. Although plaintiff characterizes the

pertinent inquiry as a straightforward question of law, our analysis is

complicated by (1) CalPERS’s contention that the issue is not justiciable;

(2) the language, structure, and history of section 11126; and (3) plaintiff’s

assertion (for the first time on appeal) that the CalPERS CIO is a “public

officer” under a four-part test that depends on a factual record not developed

in the trial court.

While we disagree with CalPERS about justiciability, we agree that

plaintiff forfeited his argument that the CalPERS CIO is a public officer by

failing to raise the issue below. Because the question of whether the CIO is a

public officer turns on disputed issues such as the creation of the position, the

6

nature of the position, and the responsibilities of the CIO, plaintiff’s failure to

raise it in the trial court has resulted in an undeveloped record that impedes

our ability to fully resolve his appeal. As to the questions of law raised by

plaintiff regarding the meaning of section 11126, however, we conclude

section 11126(g)(1) does not necessarily conflict with section 11126(a)(1) so as

to preclude the application of the personnel exemption to the CalPERS CIO.

Based on the record before us, plaintiff has not demonstrated reversal is

warranted, and accordingly, we affirm.

A. Bagley-Keene Act

“The Bagley-Keene Act requires that, with certain exceptions, ‘[all

meetings of a state body shall be open and public . . . .’ (§ 11123, subd. (a).)

The policy behind this rule is set forth in section 11120, which states that

public agencies and public servants exist to help conduct the public’s

business, that they may not decide what the public should know, and that the

proceedings of public agencies must be conducted openly.” (Travis v. Board of

Trustees of California State University (2008) 161 Cal.App.4th 335, 341

(Travis).)

Two exceptions to the open meeting requirement are relevant to the

question plaintiff presents in this appeal. The first is the broad personnel

exception set forth in section 11126(a)(1), which states: “Nothing in this

article shall be construed to prevent a state body from holding closed sessions

during a regular or special meeting to consider the appointment,

employment, evaluation of performance, or dismissal of a public employee or

to hear complaints or charges brought against that employee by another

person or employee unless the employee requests a public hearing.” The

second exception is found in section 11126(g)(1), which states: “This article

does not prevent . . . [¶] (1) The Teacher’s Retirement Board or the Board of

7

Administration of the Public Employees’ Retirement System from holding

closed sessions when considering matters pertaining to the recruitment,

appointment, employment, or removal of the chief executive officer or when

considering matters pertaining to the recruitment or removal of the Chief

Investment Officer of the State Teachers’ Retirement System or the Public

Employees’ Retirement System.”

B. Justiciability

At the outset, we will address (and reject) CalPERS’s assertion that

plaintiff’s appeal must be dismissed because it fails to present a justiciable

issue. CalPERS contends we should dismiss plaintiff’s appeal because he

already received effective relief when the trial court ruled that CalPERS

improperly relied on section 11126(a)(1) to hold a closed session on

August 17, 2020, and that the possibility of a future controversy over the

application of section 11126(a)(1) to the CIO is too remote and speculative to

warrant declaratory relief.

Plaintiff, on the other hand, contends the case presents a justiciable

controversy because CalPERS has relied on section 11126(a)(1) improperly to

discuss matters relating to its CIO at least five times and will continue to do

so unless enjoined. Specifically, plaintiff contends that the parties’

disagreement matters because section 11126(a)(1) “is significantly broader”

than section 11126(g)(1), in that subdivision (a)(1) allows closed discussions

of job performance, while subdivision (g)(1) does not. Plaintiff further asserts

that because CalPERS has unlawfully invoked section 11126(a)(1) in the past

and continues to claim that the personnel exception applies to its CIO, he is

entitled to declaratory, mandamus, and/or injunctive relief.

“California courts will decide only justiciable controversies. [Citations.]

The concept of justiciability is a tenet of common law jurisprudence and

8

embodies ‘[t]he principle that courts will not entertain an action which is not

founded on an actual controversy . . . .’ ” (Wilson & Wilson v. City Council of

Redwood City (2011) 191 Cal.App.4th 1559, 1573; Stonehouse Homes LLC v.

City of Sierra Madre (2008) 167 Cal.App.4th 531, 540.)

The concept of justiciability is also incorporated in the equitable

remedy of declaratory relief. “ ‘A declaratory relief action requires an actual

controversy relating to the legal rights and duties of the respective parties’

[citation], not merely ‘ “ ‘an abstract or academic dispute.’ ” ’ [Citation.]

‘ “The ‘actual controversy’ language in . . . [Code of Civil Procedure]

section 1060 encompasses a probable future controversy relating to the legal

rights and duties of the parties . . . [that] ‘. . . is “ripe” when it has reached,

but has not passed, the point that the facts have sufficiently congealed to

permit an intelligent and useful decision to be made.’ ” ’ [Citation.] In other

words, ‘ “[d]eclaratory relief operates prospectively to declare future rights,

rather than to redress past wrongs,” ’ thus ‘ “ ‘set[ting] controversies at rest

before they lead to repudiation of obligations, invasion of rights or

commission of wrongs; . . . the remedy is to be used in the interests of

preventative justice, to declare rights rather than to execute them.’ ” ’ ”

(TransparentGov Novato v. City of Novato (2019) 34 Cal.App.5th 140, 148,

italics added by TransparentGov Novato.)

CalPERS first contends this case fails to present a justiciable

controversy because the trial court has already resolved plaintiff’s Public

Records Act claim seeking the closed session transcript in his favor. Thus,

CalPERS asserts, resolution of this appeal will have no practical effect on the

issues raised in the trial court because even if this court reverses the trial

court’s ruling regarding the application of section 11126(a)(1), it will not

cause any more of the transcript to be disclosed.

9

As plaintiff points out, however, he is not seeking review of an order

withholding or releasing records. Plaintiff has already pursued his Public

Records Act claim regarding the transcript to finality in the prior writ

proceeding. On appeal, plaintiff seeks review of his claim that he is entitled

to declaratory, mandamus, and injunctive relief to stop CalPERS from relying

on the personnel exception to hold closed session discussions regarding the

CIO.

CalPERS next argues we should not consider plaintiff’s claim on the

merits because he “in essence” asks us to review the analysis underlying the

trial court’s decision (in favor of plaintiff) that no portion of the August 17,

2020 closed session transcript was properly withheld under

section 11126(a)(1). CalPERS asserts this is contrary to the foundational

rule that a “ruling or decision, itself correct in law, will not be disturbed on

appeal merely because given for a wrong reason.” (Davey v. Southern Pacific

Co. (1897) 116 Cal. 325, 329.) Because plaintiff sought declaratory relief to

determine the applicability of section 11126(a)(1) to the August 17, 2020

closed session, and the trial court already determined the personnel exception

did not apply because the Board did not discuss Meng’s appointment,

performance, or dismissal, CalPERS asserts that plaintiff is not entitled to

review of the trial court’s reasoning for its decision.

But CalPERS fails to acknowledge the scope of the relief plaintiff

sought in the trial court. As explained above, in addition to a declaration

from the court that the “August 17, 2020 closed session violated the Bagley-

Keene Act because the Board discussed matters that were not covered in its

disclosure and that cannot lawfully be discussed in closed session,” plaintiff

sought a declaration that Ҥ 11126(a) does not authorize the Board to hold a

closed session to discuss matters relating to its CIO, and that closed

10

session[s] to discuss such matters are instead governed by § 11126(g).”

Plaintiff further asked the court to “order the Board not to cite Government

Code § 11126(a) on its agendas as authority to close a session when the only

personnel matters to be discussed in that closed session relate to the CIO.”

The trial court rejected plaintiff’s legal argument that the personnel

exception cannot apply to the CIO, implicitly rejecting any relief in

association with that claim. Thus, even if plaintiff’s claim for declaratory

relief with respect to the past violation was resolved in his favor, his request

for declaratory, mandamus, and injunctive relief with respect to threatened

future actions was not. (See, e.g., Eye Dog Foundation v. State Board of

Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541 [appeal will not be

dismissed despite mootness if there remain material questions for the court’s

determination; in action for declaratory relief, court must do complete justice

once jurisdiction has been assumed].)

The Bagley-Keene Act authorizes “any interested person [to] commence

an action by mandamus, injunction, or declaratory relief for the purpose of

stopping or preventing violations or threatened violations of this article or to

determine the applicability of this article to past actions or threatened future

action by members of the state body.” (§ 11130, subd. (a), italics added.)

Here, plaintiff alleged in his verified petition that when his counsel wrote to

the Board about the August 17, 2020 closed session, he complained that

CalPERS was improperly relying on section 11126(a) to close discussions

related to its CIO and asked the agency to stop doing so. CalPERS responded

that the meeting was properly closed under sections 11126(a) and (g).

Plaintiff further alleged that “CalPERS continues to take the position that

§ 11126(a) authorizes closed-session discussions relating to employment of its

CIO,” citing and attaching copies of five public meeting agendas in December

11

2020 and March 2021 for which CalPERS cited section 11126(a) to authorize

a closed session to discuss the CIO position. CalPERS admitted in its answer

that the agendas listed section 11126(a)(1) and with respect to most of them

“the only personnel matter identified in those agendas to be discussed during

the closed sessions relates to the CIO position.” On this record, the

undisputed facts demonstrate that CalPERS has repeatedly cited the

personnel exception under section 11126(a) to authorize closed sessions

related to its CIO.3

Moreover, at no point in the litigation has CalPERS conceded that

section 11126(a)(1) is inapplicable to its CIO. To the contrary, it argued in

the trial court, in the writ proceedings in this court, and in its briefing on

appeal, that it may rely on the personnel exception to hold closed sessions

regarding the CIO. When parties disagree whether a public agency has

violated an open meeting law, and the agency refuses to admit its conduct

violates the law, courts have determined a justiciable controversy exists.

(See California Alliance for Utility etc. Education v. City of San Diego (1997)

56 Cal.App.4th 1024, 1029–1030 [declaratory relief action was ripe where

parties disagreed whether city had violated Brown Act4 and city failed to

3 Plaintiff also asks us to take judicial notice of an agenda from June

2022, which he contends further demonstrates CalPERS is continuing to rely

on section 11126(a)(1) to hold closed sessions regarding the CIO. As we

explain further below, we decline to take judicial notice of this meeting

notice, which did not exist at the time the trial court rendered its judgment,

and which is unnecessary to resolution of the appeal. CalPERS emphasizes

in its briefing on appeal that plaintiff cannot make a showing a justiciable

issue exists by relying on this postjudgment agenda, but it does not address

the five meeting agendas described in and attached to the complaint and writ

petition which cited section 11126(a)(1) as authority for closed sessions

relating to the CIO.

4 Ralph M. Brown Act (§ 54950 et seq.; Brown Act).

12

concede its conduct constituted a violation]; Shapiro v. San Diego City

Council (2002) 96 Cal.App.4th 904, 915–917 (Shapiro) [injunctive relief was

justified because trial court could reasonably infer from city’s past acts and

continuing contentions that its practices complied with the Brown Act that

there was a likelihood such conduct would recur in future]; Common Cause v.

Stirling (1983) 147 Cal.App.3d 518, 524 [city attorney’s refusal to concede

Brown Act violations provided reason to believe it would continue illegal

procedure in future absent judicial intervention]; cf. TransparentGov Novato

v. City of Novato, supra, 34 Cal.App.5th at pp. 150–153 [no justiciable

controversy existed where city council adopted specific policy to avoid

complained-of Brown Act violations in future]; see also Alameda County Land

Use Assn. v. City of Hayward (1995) 38 Cal.App.4th 1716, 1723 [“An action

for declaratory relief lies when the parties are in fundamental disagreement

over the construction of particular legislation, or they dispute whether a

public entity has engaged in conduct or established policies in violation of

applicable law.”].)

Accordingly, we conclude a controversy between the parties exists and

the appeal should not be dismissed.

C. Statutory Interpretation

Having determined plaintiff’s claim presents a justiciable issue, we

turn to the question of statutory interpretation.

As explained above, the personnel exception in the Bagley-Keene Act

allows state bodies to hold closed sessions to consider “the appointment,

employment, evaluation of performance, or dismissal” of public employees.

(§ 11126(a)(1); Travis, supra, 161 Cal.App.4th at pp. 341–342.)

Section 11126, subdivision (b) provides that “[f]or the purposes of this section,

‘employee’ does not include any person who is elected to, or appointed to a

13

public office by, any state body.”5 Section 11126(g)(1) contains language

specific to the CIO of CalPERS, authorizing CalPERS to hold a closed session

to consider “matters pertaining to the recruitment or removal” of the CIO.

On appeal, plaintiff asserts essentially two arguments with respect to

the construction of these three provisions: first, that the more specific

language of section 11126(g)(1) applies to the exclusion of subdivision (a)(1),

and second, that the CalPERS CIO is a public officer under subdivision (b),

and thus not an employee under subdivision (a)(1). CalPERS responds that

subdivision (g)(1) does not preclude subdivision (a)(1) from applying to the

CalPERS CIO because the two statutes overlap. Further, the legislative

history indicates that the exception in subdivision (g)(1) for the CalPERS CIO

was created because at the time, the CIO was a contractor, not an employee.

CalPERS further asserts plaintiff has forfeited the question of whether the

CIO is a public officer because he did not adequately raise or brief the issue

in the trial court, and contends we should not adopt his definition of a public

officer because it presents a fact-intensive inquiry we cannot resolve on an

undeveloped record. In the alternative, CalPERS contends if we reach the

merits, the CIO is an employee, not a public officer.

We will address each of these arguments in turn.

1. General Principles

“ ‘Under general settled canons of statutory construction, we ascertain

the Legislature’s intent in order to effectuate the law’s purpose.’ [Citation.]

We ‘ “look first to the words of the statute, ‘because they generally provide

the most reliable indicator of legislative intent.’ ” ’ ” (Preven v. City of Los

Angeles (2019) 32 Cal.App.5th 925, 932.) If the language of the statute is

5 The parties do not dispute CalPERS is a state body within the

meaning of the statute. (§§ 11121, subd. (a), 20090.)

14

clear and unambiguous, there is no need for judicial construction and our

task is at an end. If the language is reasonably susceptible of more than one

meaning, however, we may examine extrinsic aids such as the apparent

purpose of the statute, the legislative history, the canons of statutory

construction, and public policy. (Even Zohar Construction & Remodeling, Inc.

v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 838; Shapiro v. Board of

Directors (2005) 134 Cal.App.4th 170, 180.)

2. Section 11126(g)(1)

Plaintiff first asserts (as he did in the trial court) that we need not

reach the question of whether the CIO is an “employee” or “public officer”

because closed sessions related to the CalPERS CIO are authorized only by

the “more-specific” section 11126(g)(1) rather than the general personnel

exception under subdivision (a)(1). Plaintiff contends we should rely on the

principle that specific statutes prevail over general ones to conclude that only

subdivision (g)(1) applies. For several reasons, we reject plaintiff’s argument

that this canon of statutory construction is determinative of the question

whether subdivision (a)(1) applies to the CalPERS CIO.

“ ‘As in any case involving statutory interpretation, our fundamental

task here is to determine the Legislature’s intent so as to effectuate the law’s

purpose.’ ” (Skidgel v. California Unemployment Ins. Appeals Bd. (2021)

12 Cal.5th 1, 14.) Looking first to the plain words of the statute, there is no

language in section 11126 that precludes both subdivisions (a)(1) and (g)(1)

from applying to the CalPERS CIO. Section 11126(g)(1), allowing closed

sessions for “recruitment and removal,” clearly applies to the CIO because

the position is specifically identified in the text of the statute. But there is no

language in subdivision (g)(1) indicating that the personnel exception under

subdivision (a)(1), allowing closed sessions for public employees to consider

15

“appointment, employment, evaluation of employment, and dismissal” cannot

also apply to the CalPERS CIO if the CIO is a public employee. Moreover,

neither subdivision (a)(1) nor subdivision (b) of section 11126 specifically

exclude the CalPERS CIO from the definition of an employee—rather, under

those subdivisions the relevant inquiry is whether the individual is an

employee (under § 11126(a)(1)), or appointed to a public office by a state body

and thus not an employee (under § 11126, subd. (b)). Because the statutory

language is ambiguous as to whether section 11126(g)(1) functions as the

exclusive exception for the CalPERS CIO, we turn to other indicators of

legislative intent.

We look next to the legislative history. As originally enacted,

section 11126 allowed for closed session discussions of personnel matters for

both employees and public officers. (Former § 11126, added by Stats. 1967,

ch. 1656, § 122, pp. 4026–4028.) In 1975, the statute was amended to exclude

those appointed to public office from the definition of employee. (Stats. 1975,

ch. 959, § 5, pp. 2238–2240.) Thereafter, multiple amendments were made to

permit closed sessions for specific positions within various government

bodies. (See e.g., Stats. 1977, ch. 730, § 5, pp. 2318–2320 [Postsecondary

Education Commission Director]; Stats. 1980, ch. 1197, § 1, pp. 4043–4045

[Executive Officer of Franchise Tax Board]; Stats. 1981, ch. 180, § 1,

pp. 1096–1099 [Executive Secretary of State Board of Equalization].)

In 1986, the Legislature amended section 11126 to allow the Teachers’

Retirement Board to hold a “closed session when considering matters

pertaining to the appointment or removal of the chief executive officer” of

that system. (Stats. 1986, ch. 575, pp. 2013–2017.) Three years later, the

Legislature expanded this provision to allow closed sessions for the CalPERS

CEO, as well as the CIOs of both CalPERS and the State Teachers’

16

Retirement System (CalSTRS). (Stats. 1989, ch. 177, § 2, pp. 1138–1142.)

The language added in 1989 remains unchanged from the language

appearing in section 11126(g)(1) today, and provides authorization for both

bodies to hold closed sessions “when considering matters pertaining to the

recruitment, appointment, employment, or removal of the chief executive

officer or when considering matters pertaining to the recruitment or removal

of the chief investment officer.” (Stats. 1989, ch. 177, § 2, p. 1142; § 11126,

subd. (g)(1).)

A Department of Finance analysis for the bill that added the exception

for the CalPERS and CalSTRS CEOs and CIOs, Assembly Bill No. 1284

(1989–1990 Reg. Sess.) (Assem. Bill 1284), suggests that the specific language

used for the CIO positions was chosen because the position was a contract

position. In the analysis, the bill summary indicates that Assem. Bill 1284

would authorize CalPERS and the Teacher’s Retirement Board to meet in

closed session to consider matters pertaining to the recruitment or removal of

the CIO and to consider personnel matters relating to the CEO. The

summary further states that it “appears to be appropriate” to have closed

session meetings during interviews or removal discussions for both positions.

(Dept. of Finance, Analysis of Assem. Bill 1284 (1989–1990 Reg. Sess.) as

amended Apr. 6, 1989, p. 1, italics added.) In the “Specific Findings” portion

of its analysis, the report states: “The Teachers’ Retirement Board is

authorized to meet in closed session to consider matters related to the

appointment or removal of the State Teachers’ Retirement System (STRS)

Chief Executive Officer (CEO). The Board of Administration of the Public

Employees Retirement System (PERS) does not have this exemption from the

Bagley-Keene Open Meeting Act. Neither Board is authorized to meet in

17

closed session to consider matters related to the Chief Investment Officer (CIO)

because these are contract positions.” (Id. at pp. 1–2, italics added.)

The analysis further notes, “During the past year, both STRS and

PERS conducted interviews of candidates for their CIO positions in open

session. It appears that the requirement that the interviews be held in public

session may have prevented some potential candidates from applying for the

positions. Interviewing in public session involves high potential for a

candidate’s employer finding out that the candidate has applied for another

job and revealing details about a candidate’s professional and/or personal

background that a candidate may prefer to remain confidential between the

candidate and the employer.” (Dept. of Finance, Analysis of Assem. Bill 1284

(1989–1990 Reg. Sess.) as amended Apr. 6, 1989, p. 2.)

Another bill analysis from the Assembly Committee on Public

Employees, Retirement and Social Security reflects the same concerns with

privacy during hiring for the CEO and CIO positions, noting, “Both PERS

and STRS feel that conducting full job interviews in public session for their

Chief Executive Officer and Chief Investment Officer prevents qualified

candidates from applying because of the greatly enhanced possibility that the

candidate’s current employer will find out that they have applied for another

job.” (Assem. Com. on Public Employees, Retirement and Social Security,

Analysis of Assem. Bill 1284 (1989–1990 Reg. Sess.) as amended Apr. 6, 1989,

p. 2.) Comments in the Republican analysis of Assem. Bill 1284 reflect

similar concerns with respect to firing: “Current law only permits STRS to

meet behind closed doors to consider ‘matters pertaining to’ appointment or

removal of its CEO. [¶] Both systems desire more privacy when discussing

these matters. When PERS fired its last executive officer, Sid McCausland,

an action which split the board, it had to be done in the open because the

18

open meeting act demanded it and McCausland wouldn’t cooperate and just

resign. This caused a lot of publicity, which angered many board members

and administration officials.” (Assem. Ways & Means Com., Republican

analysis of Assem. Bill 1284 (1989–1990 Reg. Sess.) as amended Apr. 6, 1989,

p. 1.)

An analysis by the Public Employees’ Retirement System Legislative

Analyst explained, in a background section, that the bill would “authorize the

Board to meet in closed session for the purpose of hiring and firing the

Executive Officer and the Investment Officer. The State Teachers’

Retirement System currently has statutory authority for recruitment matters

associated with the Executive Officer. This bill would grant the same

authority to the PERS Board and would permit both systems to similarly

handle Investment Officer recruitment. [¶] The appointment and

consideration of these two officers is typically a matter of the Board’s internal

management and consideration of these employment matters in closed

session does not impair the purpose of the Open Meeting Act, which is to

allow the public to monitor the conduct of the affairs that pertain to it. PERS

does not support the concept of closing its meetings when it conducts general

business that affects the System’s membership.” (Public Employees’

Retirement System Legis. Analyst, Analysis of Assem. Bill 1284 (1989–1990

Reg. Sess.), p. 1.)

From this somewhat sparse legislative history we can discern the

following with regard to the purpose of the statute regarding the CalPERS

CIO at the time of enactment: (1) the Legislature intended to allow closed

sessions to provide additional privacy for the CIO, and (2) closed sessions

were not already authorized for the CIO because it was a contract position.

This history sheds little light on whether section 11126(a)(1) could apply to

19

the CIO if the CIO is an employee of CalPERS, rather than an independent

contractor.6

Plaintiff urges us to rely on the principle “repeatedly explained” by our

Supreme Court that “ ‘ “ ‘ “[a] specific provision relating to a particular

subject will govern in respect to that subject, as against a general provision,

although the latter, standing alone, would be broad enough to include the

subject to which the more particular provision relates.” ’ ” ’ ” (People v.

Superior Court (Jimenez) (2002) 28 Cal.4th 798, 808.) Plaintiff asserts

because section 11126(g)(1) specifically refers to the CIO, it applies to the

exclusion of section 11126(a)(1). The principle on which plaintiff relies,

however, “is not one of constitutional or statutory mandate, but serves as an

aid to judicial interpretation when two statutes conflict.” (People v. Walker

(2002) 29 Cal.4th 577, 586.) As our Supreme Court has explained, “ ‘The

principle that a specific statute prevails over a general one applies only when

the two sections cannot be reconciled. [Citations.]’ [Citation.] If we can

reasonably harmonize ‘[t]wo statutes dealing with the same subject,’ then we

must give ‘concurrent effect’ to both, ‘even though one is specific and the

other general.’ ” (Garcia v. McCutchen (1997) 16 Cal.4th 469, 478; Tafoya v.

Hastings College (1987) 191 Cal.App.3d 437, 447–448 [where subject matter

is covered by inconsistent provisions, a specific provision prevails over a

general one as an exception thereto, unless a contrary intent appears].)

6 It appears at some point, CalPERS stopped relying on outside

investment managers for its investment operations and established the

“internal” position of CIO, which was exempt from civil service and appointed

directly by the CalPERS Board. (Sen. Rules Com., Off. of Sen. Floor

Analyses, Analysis of Sen. Bill No. 269 (2003–2004 Reg. Sess.) p. 3.) The

parties do not dispute that the CalPERS CIO is no longer a “contract

position.”

20

Here, the two subdivisions (a)(1) and (g)(1) do not obviously conflict,

and it may be possible to harmonize them. First, the terms used in the

general personnel exception are not the same as those in the special CIO

exception. (Compare § 11126(a)(1) [permitting closed session to consider

appointment, employment, evaluation of performance, or dismissal] with

§ 11126(g)(1) [permitting closed session to consider recruitment or removal].)

Because the provisions do not expressly overlap, there does not appear to be

any conflict on the face of the statute. Second, as discussed above, the

legislative history suggests that the CIO exception in section 11126(g)(1) was

necessary because the CIO was a contract position; thus, there is nothing

inconsistent about applying the personnel exception if the CIO is an

employee, as opposed to a contractor.

Moreover, the prevalence of a specific statute over a general statute is a

tool to assist us in deciphering legislative intent, not a static rule for rote

application. “[T]he canons of statutory construction are not dispositive but

rather are guides courts can resort to when a statute’s plain language and

legislative history do not compel a particular result.” (Grassi v. Superior

Court (2021) 73 Cal.App.5th 283, 306.) On the other hand, “when the

legislative history answers the question of legislative intent, or at least

provides clues to legislative intent, the legislative history is a more reliable

indicator of the legislative intent than inferences of intent based on canons of

statutory construction.” (People v. Superior Court (Ortiz) (2022)

81 Cal.App.5th 851, 862.) Here, as explained above, the legislative history

suggests that the Legislature established the CIO exception in

section 11126(g)(1) to cover “recruitment or removal” but not employment

because the CIO was a contract position.

21

In his reply brief, plaintiff argues the legislative history for the 1989

amendment “simply confirms that the Legislature originally intended for

§ 11126(g)(1) to provide the sole authority for closed-door discussions of the

CIO,” and CalPERS has shown no evidence of a contrary intent. Plaintiff

asserts that the Legislature’s failure to amend section 11126(g)(1) when it

amended a different statute in 2003, shows the Legislature’s intent that only

subdivision (g)(1) would apply to the CalPERS CIO. Specifically, plaintiff

asserts, “The Legislature was presumably aware of the specific provisions in

§ 11126(g)(1) governing closed session discussions of the CIO when it added

the CIO position to § 20098, and if it had intended to abrogate them it would

have done so.”

We are not persuaded. Section 20098 provides authority for the

CalPERS Board to “appoint . . . [and] fix the compensation of an executive

officer, a general counsel, a chief actuary, a chief investment officer, a chief

financial officer, a chief operating officer, a chief health director, and other

investment officers and portfolio managers . . . .” (Id., subd. (a), italics

added.) As plaintiff recognizes, the 2003 amendment was a response to

Westly v. Board of Administration (2003) 105 Cal.App.4th 1095, in which the

Third Appellate District held CalPERS lacked plenary authority under

article XVI, section 17 of the California Constitution to designate its

employees exempt from civil service and pay them compensation in excess of

amounts approved by the Department of Personnel Administration. (Westly,

at pp. 1099, 1110–1113, 1116–1117.) After the Westly decision, the

Legislature amended section 20098 to provide CalPERS authority to appoint

certain positions and pay salaries in excess of amounts allowed by the civil

service laws. (Stats. 2003, ch. 856, §§ 1, 3, pp. 6262–6263, 6264–6265.) As

the Legislature declared in enacting the legislation, “The express purpose of

22

this act is to enable the Board of Administration and the Teachers’

Retirement Board to attract and retain key personnel by empowering those

boards to establish both appropriate classifications within the civil service for

its senior executive and investment management employees and the

compensation paid to those employees, competitive with the compensation

paid to employees in other retirement and financial service entities,

consistent with the holding of Westly v. Board of Administration, and

notwithstanding the provisions of the Government Code that provide the

State Personnel Board and the Department of Personnel Administration that

authority.” (Id., § 1, p. 6263.)

The 2003 amendment was clearly aimed at providing CalPERS

authority to offer certain employees competitive salaries. Neither the

statutory language nor the legislative history makes any mention of the

Bagley-Keene Act or discusses whether it might apply to any of the positions

identified in section 20098. We are not convinced the Legislature’s silence

about open meeting requirements when evaluating whether CalPERS should

be given authority to pay higher salaries under a different law is indicative of

legislative intent about the scope of section 11126.7

Plaintiff also asserts that allowing both section 11126(a)(1) and

section 11126(g)(1) to apply to the CIO would violate the rule that a

construction that renders a word surplusage should be avoided. Specifically,

plaintiff argues if section 11126(a)(1) (allowing closed session discussions of

“appointment, employment, evaluation of performance, or dismissal”) applies

7 In this regard, we also observe in the words of our Supreme Court,

that “[i]t is axiomatic that in assessing the import of a statute, we must

concern ourselves with the Legislature’s purpose at the time of the

enactment.” (In re Pedro T. (1994) 8 Cal.4th 1041, 1048; Reznitskiy v. County

of Marin (2022) 79 Cal.App.5th 1016, 1025–1026.)

23

to the positions listed in section 11126(g)(1), it would render the use of the

terms “appointment,” “employment,” and “removal” in subdivision (g)(1)

surplusage.

First, the terms “appointment” and “employment” in section 11126(g)(1)

are used only with reference to the CalPERS CEO, not the CIO. Whether

section 11126(a)(1) can apply to the CEO is not at issue here. Second, in his

opening brief, plaintiff concedes that “dismissal” and “removal” have “slightly

different connotations,” arguing that employees are dismissed, while public

officers are removed. It is also possible, however, that the Legislature used

those terms for the CIO in section 11126(g)(1) because the position was a

contract position to which the personnel exception did not apply. Because

that reason is supported by the legislative history, it is a stronger indication

of legislative intent than a general canon of construction. (See, e.g., Skidgel

v. California Unemployment Ins. Appeals Bd., supra, 12 Cal.5th at p. 21

[“ ‘the canon against surplusage is [merely] a guide to statutory

interpretation and is not invariably controlling.’ [Citation.] . . . “We will not

use it ‘to defeat legislative intent’ as gleaned from available sources,

including the rest of the words in the statute, related statutes, the ‘legislative

history and the “wider historical circumstances” of the enactment.’ ”].)

We also recognize, as plaintiff emphasizes, that statutory exceptions

authorizing closed sessions under California’s open meeting laws are

construed narrowly, while the Bagley-Keene Act is construed liberally in

favor of openness in conducting public business. (See Travis, supra,

161 Cal.App.4th at p. 343; Shapiro, supra, 96 Cal.App.4th at p. 917 [stating

same principle with respect to the Brown Act].) However, the personnel

exception under section 11126(a)(1) exists “ ‘ “to permit free and candid

discussions of personnel matters” ’ ” for public employees who are not public

24

officers. (Travis, at p. 342.) Our review of the legislative history of

section 11126(g)(1) reveals an understanding on the part of the Legislature at

the time of enactment that closed sessions were not authorized for the CIO

because it was a contract position. Accordingly, we reject plaintiff’s premise

that section 11126(a)(1) cannot apply to the CIO merely because

section 11126(g)(1) specifically does.

D. Public Officer

Plaintiff next contends section 11126(a)(1) cannot apply to the

CalPERS CIO because the CIO is a public officer, not an employee. We agree

that whether section 11126(a)(1) applies to the CalPERS CIO turns on the

answer to this question. CalPERS, however, argues we should not reach this

issue for two reasons: first, because plaintiff forfeited the issue by failing to

raise it in the trial court, and second, because his failure to raise it in the

trial court has resulted in an undeveloped record on issues of fact necessary

to resolution of the appeal.8 We agree with CalPERS that plaintiff forfeited

this issue by failing to raise and brief it in the trial court and that we should

not decide it on an undeveloped record.

“ ‘As a general rule, theories not raised in the trial court cannot be

asserted for the first time on appeal; appealing parties must adhere to the

theory (or theories) on which their cases were tried. This rule is based on

fairness—it would be unfair, both to the trial court and the opposing

litigants, to permit a change of theory on appeal.’ ” (Nellie Gail Ranch

8 Plaintiff argues in his reply brief that CalPERS “makes a strange

waiver claim” regarding his argument that the CIO is not an employee—

plaintiff asserts CalPERS “does not claim that he has waived this entire

argument,” only that he “cannot rely on the Attorney General’s opinion to

support it.” We have carefully reviewed CalPERS’s opposition brief and have

concluded this is not an accurate characterization of CalPERS’s argument.

25

Owners Assn. v. McMullin (2016) 4 Cal.App.5th 982, 997.) “Appellate courts

are loath to reverse a judgment on grounds that the opposing party did not

have an opportunity to argue and the trial court did not have an opportunity

to consider. [Citation.] In our adversarial system, each party has the

obligation to raise any issue or infirmity that might subject the ensuing

judgment to attack. [Citation.] Bait and switch on appeal not only subjects

the parties to avoidable expense, but also wreaks havoc on a judicial system

too burdened to retry cases on theories that could have been raised earlier.”

(JRS Products, Inc. v. Matsushita Electric Corp. of America (2004)

115 Cal.App.4th 168, 178.)

Although we have discretion to consider pure questions of law raised

for the first time on appeal, we will not exercise such discretion here because

whether the CalPERS CIO is a public officer is a mixed question of law and

fact that is inappropriate to decide on an undeveloped record. (See, e.g., NBC

Universal Media, LLC v. Superior Court (2014) 225 Cal.App.4th 1222, 1237

[declining to consider issue requiring application of equitable principles to

undeveloped record]; City of Newport Beach v. Sasse (1970) 9 Cal.App.3d 803,

811–812 [court would not consider new defense involving legal and factual

questions open to controversy and not presented at trial].)

As both parties argue, the terms “public office” and “public officer” have

no fixed meaning in California, and the distinction between an employee and

a public officer varies according to context. (Brown v. Pacifica Foundation,

Inc. (2019) 34 Cal.App.5th 915, 928 [“California does not recognize a single

legal definition of the term ‘public office’ ”; “The term ‘public office’ is

ambiguous on its face and its meaning depends on issues of context and

intent”]; Spreckels v. Graham (1924) 194 Cal. 516, 530 [“It is difficult,

perhaps impossible, to frame a definition of public office or public officer

26

which will be sufficiently accurate, both as to its inclusion and its exclusion,

that meet the requirements of all cases.”]; 68 Ops.Cal.Atty.Gen. 34, 37 (1985)

[issue of whether a particular position at a state agency is an employee or a

public officer is often controversial and “ ‘[r]esolution of the issue usually

depends on the facts involved in a particular case’ ”].)

Although plaintiff asserts he “raised” the issue in the trial court in a

paragraph in his motion for judgment, his argument consisted of two

sentences asserting section 11126(a)(1) cannot apply to the CIO because the

position is appointed by the CalPERS Board pursuant to section 20098 and

CalPERS is a state body. Plaintiff also cited to the 1985 opinion of the

Attorney General concluding the Director of the California Transportation

Commission is a public officer, but he did not discuss it. Nor did plaintiff

assert the CIO was a public officer, discuss the legal test for a public officer,

or present any evidence or argument in the trial court as to why the CIO is a

public officer. Indeed, plaintiff expressly argued in his reply brief that the

trial court did not have to consider whether the CIO was a public officer,

because it was irrelevant and there is no fixed definition of a public officer.

(See, e.g., GECCMC 2005-C1 Plummer Street Office Limited Partnership v.

NRFC NNN Holdings, LLC (2012) 204 Cal.App.4th 998, 1003, fn. 3 [declining

to consider new argument on appeal where appellant disclaimed reliance on

contention in trial court].)

Although CalPERS argued in its opposition to the motion for judgment

that the CIO is an employee, not a public officer, it cited only to the

legislative history for section 20098 to argue that the use of the term

“employee” in the Legislature’s statement of purpose demonstrates the CIO is

an employee. Certainly the four-part test that plaintiff advocates on appeal

was not proposed or discussed in the trial court, and no factual findings were

27

made by the trial court based on any of the evidence cited by plaintiff on

appeal. In light of the complexity of the “public officer” inquiry and the

absence of any findings by the trial court, we decline to exercise our

discretion to determine the issue for the first time on appeal.9 (Farrar v.

Direct Commerce, Inc. (2017) 9 Cal.App.5th 1257, 1275–1276, fn. 3 [“Whether

an appellate court will entertain a belatedly raised legal issue always rests

within the court’s discretion.”]; Humane Society of U.S. v. Superior Court

(2013) 214 Cal.App.4th 1233, 1273 [appellate court refused to exercise

discretion to consider new issue on appeal concerning question of public

interest because it did not present pure question of law].)

E. Requests for Judicial Notice

The parties ask us to take judicial notice of various materials that were

not before the trial court.

Plaintiff asks us to take judicial notice under Evidence Code

section 452, subdivisions (c) and (h) of a copy of a June 3, 2022 meeting

notice/agenda packet downloaded from CalPERS’s website. Plaintiff

contends the agenda packet is relevant to this proceeding because it shows

that CalPERS is continuing to rely on section 11126(a) to discuss matters

relating to the CIO. The notice reflects that one of seven items on a closed

9 At oral argument, plaintiff requested that we remand the matter to

the trial court to hold a hearing on the issue of whether the CIO is an

employee or public officer, citing to Li v. Jin (2022) 83 Cal.App.5th 481, 496–

497. Li, however, was an anti-SLAPP (strategic lawsuit against public

participation) case in which the appellate court determined it was

appropriate to remand for the trial court to conduct a second-step analysis as

to whether the plaintiffs’ claims had “minimal merit,” after it reversed the

trial court on the first step analysis regarding whether the allegations of the

complaint arose from protected activity. Unlike this case, it did not concern a

party’s forfeiture of an issue on appeal by failing to address a mixed question

of law and fact in the trial court.

28

session agenda scheduled for June 13, 2022 was “Chief Investment Officer—

Personnel, Employment and Performance,” and the agenda states the session

will be closed under section 11126(a)(1) and subdivisions (c)(16) and (e).

Plaintiff concedes the agenda did not exist when the trial court issued its

judgment.

CalPERS opposes the request for judicial notice on the grounds that we

should not take judicial notice of matters occurring after the entry of

judgment absent exceptional circumstances, the request is problematic

because it asks us to make new factual findings on appeal, and even if we

considered the agenda, it would not result in reversal of the judgment.

“Generally, reviewing courts do not take judicial notice of facts not

presented to the trial court. Rather, ‘normally “when reviewing the

correctness of a trial court’s judgment, an appellate court will consider only

matters which were part of the record at the time the judgment was

entered.” ’ ” (Weiss v. City of Del Mar (2019) 39 Cal.App.5th 609, 625 (Weiss).)

It is undisputed the material in the June 3, 2022 meeting notice was not in

existence when the trial court entered its judgment, and thus we conclude it

would be inappropriate to take judicial notice. Plaintiff identifies no

“exceptional circumstances” to depart from this general rule. (Ibid.) In any

event, because it is unnecessary to our determination regarding the

justiciability of plaintiff’s claims, we decline to take judicial notice of the

meeting agenda packet for this additional reason.

Plaintiff also requests we take judicial notice of material pertaining to

the legislative history of section 20098, a State Personnel Board specification

for the position of CalPERS CIO, and portions of CalPERS’s briefing in the

prior writ proceeding in this court. The request for judicial notice of the State

Personnel Board specification is denied, as it was not before the trial court in

29

deciding this matter.10 (Weiss, supra, 39 Cal.App.5th at p. 625.) Plaintiff’s

requests for judicial notice of the legislative history of section 20098 and

CalPERS’s prior briefing are granted. CalPERS’s request for judicial notice

of material relating to the legislative history of section 11126(g)(1) is granted.

III. DISPOSITION

The judgment is affirmed. The parties are to bear their own costs on

appeal.

10 For the first time in his reply brief (and not in his request for judicial

notice), plaintiff asserts we must take judicial notice of the State Personnel

Board specifications because, under Evidence Code section 459, we are

required to take judicial notice of each matter that the trial court was

required to notice under Evidence Code section 451. The trial court was not

required to take judicial notice of material not presented to it. In any event,

even were we to take judicial notice of the State Personnel Board

specifications, they are not dispositive of whether the CIO is an employee or

public officer as they address only one of the several elements plaintiff

proposes as the test for a public officer.

30

MARGULIES, J.*

WE CONCUR:

HUMES, P. J.

GETTY, J.†

A165562

Jelincic v. California Public Employees’ Retirement System Board of

Administration

* Retired Associate Justice of the Court of Appeal, First Appellate

District, assigned by the Chief Justice pursuant to article VI, section 6 of the

California Constitution.

† Judge of the Solano County Superior Court, assigned by the Chief

Justice pursuant to article VI, section 6 of the California Constitution.