Stanford Law School - Robert Crown Law Library

Filed 7/1/04

IN THE SUPREME COURT OF CALIFORNIA

STEVEN W. NOLAN,
Plaintiff and Respondent,
S113359
v.
) Ct.App.
4/3
G028272
CITY OF ANAHEIM,
Orange County
Super. Ct. No. 00CC03056
Defendant and Appellant.

Plaintiff Steven W. Nolan was a police officer for the City of Anaheim
(Anaheim); his last assignment was as a patrol officer. Pursuant to Government
Code section 21156,1 Mr. Nolan has applied for permanent disability retirement
benefits on the ground that threats and harassment by other Anaheim officers have
rendered him “incapacitated physically or mentally for the performance of his . . .
duties in the state service.” (Italics added.) The question presented is what, for
the purposes of section 21156, is meant by “state service”?
“State service,” Mr. Nolan contends, refers to the applicant’s last employer.
Therefore, Mr. Nolan argues, in order to qualify for disability retirement, he need
only show he is incapable of continuing to perform his duties as a patrol officer for
Anaheim. We disagree. We conclude that in order to qualify for disability
retirement under section 21156, Mr. Nolan will have to show not only that he is
incapacitated from performing his usual duties for Anaheim, but also that he is

1
Unless otherwise indicated, all statutory references are to the Government
Code.
1

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incapacitated from performing the usual duties of a patrol officer for other
California law enforcement agencies. Assuming Mr. Nolan makes such a prima
facie showing, the burden will then shift to Anaheim to show not only that
Mr. Nolan is capable of performing the usual duties of a patrol officer for other
California law enforcement agencies, but also to show that similar positions with
other California law enforcement agencies are available to Mr. Nolan. By similar
positions, we mean patrol officer positions with reasonably comparable pay,
benefits, and promotional opportunities.
I. FACTUAL AND PROCEDURAL BACKGROUND
Mr. Nolan began work as a police officer with Anaheim in 1984. He was
number one in his sheriff’s academy class and received outstanding ratings early
in his career. In 1991, upon transferring to the gang unit, Mr. Nolan reported what
he believed to be excessive use of force by fellow officers. As an apparent
consequence, Mr. Nolan experienced strained relations with other members of the
gang unit, and he voluntarily returned to patrol duty in 1992.
Five months later, after an internal affairs investigation failed to
substantiate any misconduct on the part of the other officers, disciplinary charges
were brought against Mr. Nolan for violation of department rules. The charges
included unbecoming conduct, unsatisfactory performance, misuse of sick time,
and improper handling of evidence. Mr. Nolan was fired, and he took the case to
arbitration. The arbitrator ordered him reinstated, but suspended for five days.
Shortly after the arbitration, Mr. Nolan received two threatening telephone
calls and numerous telephone hang-ups. He believed the calls were placed by
Anaheim police officers. One caller warned him to always wear his vest, an
apparent allusion to being shot at, and the other said, “Welcome back, you’re
fucking dead.” As a consequence, Mr. Nolan filed for disability retirement; he
also filed a civil “whistleblower” suit seeking damages for wrongful termination.
In the whistleblower suit, the jury awarded Mr. Nolan $223,000 for the
wrongful termination, but reduced the award by $63,000 on the ground he could
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have found comparable employment. In addition, the jury awarded Mr. Nolan
$180,000 for emotional stress.
In this disability matter, the administrative law judge found that Mr. Nolan
suffered no mental incapacity and recommended denial of his request. Anaheim
adopted the decision, and Mr. Nolan filed this action, seeking a writ of mandamus
to compel the city to grant him disability retirement.
The superior court found that Mr. Nolan was permanently incapacitated for
the performance of his duties as a police officer for Anaheim. The court based its
finding on the testimony of a psychologist retained by Mr. Nolan, concurred in by
a psychiatrist retained by the city’s insurance carrier, that he was not emotionally
and mentally able to work as a police officer due to his fear for his personal safety
and the retaliation he had already experienced.2 The court further found that Mr.
Nolan’s fear of retaliation was based, in part, on the likelihood that he could not
count on fellow officers for backup in time of need. The court noted that his
posttermination arbitration proceeding and his civil whistleblower suit had
established that the police department did not have sufficient reason to terminate
him and that the termination was in retaliation for his informing on fellow officers
he believed used illegal force on suspects. The court further noted that even the
psychiatrist retained by the city stated that Mr. Nolan’s fears were reasonable.
The Court of Appeal reversed and remanded the cause for reconsideration
of the administrative record under what it held to be the appropriate standard, i.e.,
“whether Mr. Nolan is mentally incapacitated for state service, i.e., perform police
services throughout the state . . . .”

2
No issue is raised in this case as to whether section 21151 covers
psychiatric incapacity resulting from conflicts with fellow employees. Previously,
we have assumed it does. (See Pearl v. Workers’ Comp. Appeals Bd. (2001) 26
Cal.4th 189, 191 (Pearl) [disability claim “alleging cumulative workplace trauma
. . . including psychiatric injury caused by a series of incidents involving other
officers and [applicant’s] supervisor”].)
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We affirm the judgment of the Court of Appeal, which reversed the
judgment of the trial court, and we remand the matter for further proceedings
consistent with this opinion.
II. DISCUSSION
The rules governing statutory construction are well settled. We begin with
the fundamental premise that the objective of statutory interpretation is to
ascertain and effectuate legislative intent. (People v. Trevino (2001) 26 Cal.4th
237, 240; People v. Gardeley (1996) 14 Cal.4th 605, 621.) To determine
legislative intent, we turn first to the words of the statute, giving them their usual
and ordinary meaning. (Trevino, at p. 241; Trope v. Katz (1995) 11 Cal.4th 274,
280.) When the language of a statute is clear, we need go no further. However,
when the language is susceptible of more than one reasonable interpretation, we
look to a variety of extrinsic aids, including the ostensible objects to be achieved,
the evils to be remedied, the legislative history, public policy, contemporaneous
administrative construction, and the statutory scheme of which the statute is a part.
(Granberry v. Islay Investments (1995) 9 Cal.4th 738, 744; People v. Woodhead
(1987) 43 Cal.3d 1002, 1007-1008.)
The statutory context of this case was recently summarized in Pearl, supra,
26 Cal.4th 189. “The Legislature enacted the Public Employees’ Retirement Law
(Gov. Code § 20000 et seq.), ‘to effect economy and efficiency in the public
service by providing a means whereby employees who become superannuated or
otherwise incapacitated may, without hardship or prejudice, be replaced by more
capable employees, and to that end provide a retirement system consisting of
retirement compensation and death benefits.’ (Id. § 20001.) Under its provisions,
certain persons, including police officers, are eligible for special disability
retirement benefits if they are ‘incapacitated for the performance of duty as the
result of an industrial disability.’ (Id. § 21151, italics added.) Thus, upon
retirement for such a disability, a peace officer ‘shall receive a disability
allowance of 50 percent of his or her final compensation plus an annuity
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purchased with his or her accumulated additional contributions, if any, or, if
qualified for service retirement, the member shall receive his or her service
retirement allowance if the allowance, after deducting the annuity, is greater.’
(Id. § 21407.) These benefits are free from federal income taxes. (26 U.S.C.
§ 104(a)(1).)” (Pearl, at pp. 193-194.)
The provision of the Public Employees’ Retirement Law (PERL) at issue
here is section 21156, which provides for disability retirement for a member who
is incapacitated physically or mentally for the performance of his or her duties in
the state service. Section 21156 provides in pertinent part: “If the medical
examination and other available information show to the satisfaction of the board,
or in case of a local safety member, other than a school safety member, the
governing body of the contracting agency employing the member, that the member
is incapacitated physically or mentally for the performance of his or her duties in
the state service and is eligible to retire for disability, the board shall immediately
retire him or her for disability, unless the member is qualified to be retired for
service and applies therefor prior to the effective date of his or her retirement for
disability or within 30 days after the member is notified of his or her eligibility for
retirement on account of disability, in which event the board shall retire the
member for service.”
Again, the question presented is what, for the purposes of section 21156, is
meant by “state service”?
Mr. Nolan contends that for a police officer, i.e., “a local safety member,”
to demonstrate he or she is “incapacitated physically or mentally for the
performance of his or her duties in the state service,” the officer need only show
an incapacity to continue functioning in “the contracting agency employing the
member.”
We disagree. As the Court of Appeal observed, section 21156 does not
refer to the employee’s last employing department; it refers to state service.
Section 20069 defines “state service” as “service rendered as an . . . officer of the
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state, the university, a school employer, or a contracting agency, for compensation
. . . .” When sections 21156 and 20069 are read together, it becomes clear that
“state service,” for the purposes of section 21156, means all forms of public
agency service that render an employee eligible for the benefits of section 21156.
Therefore, in order for Mr. Nolan to qualify for disability retirement under section
21156, he will not only have to show he is incapacitated from continuing to
perform his usual duties for Anaheim, but also that he is incapacitated from
performing the usual duties of a patrol officer for other California law enforcement
agencies covered by the PERL.
The position taken by Mr. Nolan would lead to results that would clearly be
at variance with the fundamental policies that led the Legislature to enact the
PERL. As previously stated, the Legislature enacted the PERL “to effect economy
and efficiency in the public service by providing a means whereby employees who
become superannuated or otherwise incapacitated may, without hardship or
prejudice, be replaced by more capable employees, and to that end provide a
retirement system consisting of retirement compensation and death benefits.”
(§ 20001, italics added.) Mr. Nolan asserts that no other law enforcement agency
in the state would be willing to hire him because he (1) has accused fellow officers
of misconduct, (2) is perceived as a troublemaker for challenging his termination
and bringing a whistleblower suit, and (3) has a history of anxiety, depression and
fear. However, in response to questions at oral argument, Mr. Nolan’s counsel
also insisted that Mr. Nolan would be entitled to permanent disability retirement
even if several police departments in communities surrounding Anaheim were to
offer him positions that were in all relevant respects similar to the position he held
in Anaheim, and his psychological disability did not extend to the other
departments. We find it inconceivable that the Legislature, in enacting the PERL
“to effect economy and efficiency in the public service,” intended to grant an
applicant permanent disability retirement benefits under such circumstances.
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Mr. Nolan contends, however, that the granting of such a windfall is
compelled by the body of case law that has developed in the Courts of Appeal
regarding light duty assignments. As Mr. Nolan points out, under the light duty
doctrine, a police officer is not considered to be incapacitated if a permanent light
duty position the officer is capable of performing is available within that
department. (See, e.g., Barber v. Retirement Board (1971) 18 Cal.App.3d 273
(Barber); Craver v. City of Los Angeles (1974) 42 Cal.App.3d 76 (Craver);
O’Toole v. Retirement Board (1983) 139 Cal.App.3d 600 (O’Toole).)
The light duty cases are distinguishable. The seminal light duty cases
involved construction of disability retirement provisions of city charters. (Barber,
supra, 18 Cal.App.3d at pp. 275-276 [San Francisco]; Craver, supra, 42
Cal.App.3d at p. 79 [Los Angeles]; O’Toole, supra, 139 Cal.App.3d at p. 603 [San
Francisco].) Therefore, the question addressed in each of those cases was whether
the applicant was capable of filling a permanent light duty assignment that was
available in the applicant’s department.3 Mr. Nolan has not brought to our
attention, nor has our own research revealed, a light duty case addressing the
relevance of the availability of appropriate light duty assignments in other cities.
A decision, of course, does not stand for a proposition not considered by the court.
(People v. Harris (1989) 47 Cal.3d 1047, 1071.) Therefore, the light duty cases
are simply not apposite.

3
(See Barber, supra, 18 Cal.App.3d at p. 278 [section 171.1.3 of the San
Francisco Charter was properly construed as referring to “duties required to be
performed in a given permanent assignment within the department”]; Craver,
supra, 42 Cal.App.3d at p. 80 [“The language of section 182 [of the Los Angeles
Charter] indicates that the determination of disability and necessity of retirement is
on a departmental basis rather than that of a single job or a particular duty. The
section refers to duties ‘in such department’ and to ‘further service in such
department’ ”]; O’Toole, supra, 139 Cal.App.3d at p. 602 [“The sole issue is
whether there is substantial evidence to support the trial court’s finding that there
was no ‘light duty’ assignment in the [San Francisco] [P]olice [D]epartment
available to O’Toole”].)
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In its brief, amicus curiae, the California Public Employees’ Retirement
System (CalPERS), warns that a standard of the sort we adopt today―that a peace
officer seeking permanent disability retirement must show not only that he is
incapacitated from performing his usual duties for his last employer, but also that
he is incapacitated from performing the usual duties of his last assignment for
other California law enforcement agencies—would not be administrable. Such a
test would be impossible to administer, CalPERS contends, because “it requires
assumptions about what services are required at other departments or employers
other than at [the] City of Anaheim. While it may be possible to imagine some
duties that other police departments require of police officers, uniform
circumstances of employment around the state cannot be presumed.”
CalPERS has set up a straw man. Doubtless, the duties required of, for
example, patrol officers are not uniform throughout the state. However, that is
beside the point. The question is: What are the usual duties of a patrol officer?
(Mansperger v. Public Employees’ Retirement System (1970) 6 Cal.App.3d 873,
876-877 (Mansperger).)
In
Mansperger, the Court of Appeal was called upon to construe former
section 21022. (Added by Stats. 1945, ch. 123, § 1, p. 599; repealed by Stats.
1995, ch. 379, § 1, p. 1955.) It provided: “Any patrol or local safety member
incapacitated for the performance of duty as the result of an industrial disability
shall be retired for disability, pursuant to this chapter, regardless of age or amount
of service.” (Italics added.) The Mansperger court held that “incapacitated for the
performance of duty,” for the purposes of former section 21022, meant the
substantial inability of the applicant to perform his usual duties. (Mansperger,
supra, 6 Cal.App.3d at p. 876.) The court acknowledged that the applicant, a state
fish and game warden, could no longer lift or carry heavy objects, but observed the
necessity for doing so was a “remote occurrence” in a fish and game warden’s job.
(Id. at pp. 876-877.) The court also acknowledged that fish and game wardens
occasionally need to make physical arrests, but observed that such occasions were
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“not a common occurrence for a fish and game warden.” (Id. at p. 877.) The
evidence showed the applicant “could substantially carry out the normal duties of
a fish and game warden.” (Id. at p. 876.) Therefore, the court held, “the board,
and the trial court, properly found that petitioner was not ‘incapacitated for the
performance of duty,’ within the meaning of section 21022 of the Government
Code and, therefore, that he was not entitled to the disability pension which he
sought.” (Id. at p. 877, italics omitted.)
With all due respect to the expertise of CalPERS in administering the
PERL, determining the usual duties of a patrol officer should not be that difficult.
Every civil service employer must describe the usual duties of every position.
Finally, while the Legislature, in enacting the PERL, was concerned to
“effect economy and efficiency in the public service,” it expressly intended to do
so “without hardship or prejudice” to “employees who become superannuated or
otherwise incapacitated.” (§ 20001.) To deny Mr. Nolan disability retirement
benefits on the ground he is capable of working for other California law
enforcement agencies would clearly work a hardship on him if, as he claims, no
other law enforcement agency would, in fact, be willing to hire him because he has
blown the whistle on misconduct by fellow officers. Therefore, if Mr. Nolan
shows not only that he is incapacitated from performing his usual duties for
Anaheim, but also that he is incapacitated from performing the usual duties of a
patrol officer for other California law enforcement agencies, the burden will shift
to Anaheim to show not only that Mr. Nolan is capable of performing the usual
duties of a patrol officer for other California law enforcement agencies, but also
that similar positions with other California law enforcement agencies are available
to him.4 By similar positions, we mean patrol officer positions with reasonably
comparable pay, benefits, and promotional opportunities.

4
In his brief in the Court of Appeal, Mr. Nolan’s counsel discussed
bifurcation of the burden of proof. Mr. Nolan’s primary position, of course, is that
he should only be required to prove he is incapable of continuing to perform his
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III. DISPOSITION
We affirm the judgment of the Court of Appeal reversing the judgment of
the trial court; we remand the matter for further proceedings consistent with this
decision.
BROWN, J.

WE CONCUR:

GEORGE,
C.J.
CHIN,
J.
MORENO,
J.

duties as a patrol officer for Anaheim. However, his fallback position is that once
he shows he is incapable of continuing to work as a patrol officer for Anaheim, the
burden would shift to Anaheim to prove “the existence of suitable alternate
employment opportunities.”

At oral argument in this court, counsel for Anaheim was asked his views on
the burden of proof. Counsel responded that if Mr. Nolan showed he was
incapable of continuing to perform his usual duties for Anaheim, the burden would
shift to Anaheim to show Mr. Nolan was not incapacitated from the performance
of his usual duties elsewhere in the state. When asked whether Anaheim would
have to show that a position elsewhere in the state was actually available to Mr.
Nolan, Anaheim’s counsel responded, no, that the test should be capacity, not
employability.
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CONCURRING AND DISSENTING OPINION BY BAXTER, J.

I agree with the majority opinion insofar as it rejects Mr. Nolan’s argument
that he can claim disability retirement benefits on the sole basis that he has
become physically or psychologically incapacitated to work as a police officer for
the City of Anaheim. On the contrary, he must show that his job-related physical
or psychological condition prevents him from performing the usual and customary
duties of a police officer anywhere in the state. And once he does present such
evidence, the city must have an opportunity to rebut it.
But that is the end of the matter. If Mr. Nolan has a general job-related
incapacity for police officer duties, he is entitled to a pension. Otherwise, he is
not. The majority opinion thus errs in its holding that Mr. Nolan may retire for
disability, even if he has no general incapacity, unless the city can show “that
similar positions with other California law enforcement agencies are available to
him.” (Maj. opn., p. 9, fn. omitted, italics added.)
The majority’s effort not to penalize Mr. Nolan for his “whistleblowing”
activities is understandable, but it is an example of good intentions gone awry.
The statutory scheme specifies that an eligible local safety member may be retired
for disability if “the member is incapacitated physically or mentally for the
performance of his or her duties in the state service” (Gov. Code, § 21156, italics
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added)1 “as the result of an industrial disability” (§ 21151, subd. (a)). The statutes
nowhere intimate that a disability pension is available to an officer who has a
general physical and mental ability to perform, but simply cannot secure a
position. Unemployability is not the same thing as incapacity. The disability
retirement system is not an unemployment insurance system.
As sole support for the “available positions” theory it invents, the majority
opinion cites section 20001. This statute declares that the purpose of the pension
system for public employees is to “effect economy and efficiency in the public
service by providing a means whereby employees who become superannuated or
otherwise incapacitated may, without hardship or prejudice, be replaced by more
capable employees . . . .” (Italics added.) The majority opinion posits that to deny
Mr. Nolan a pension when no similar positions are available would cause him
hardship and prejudice.
But the retirement scheme is intended to ease “hardship or prejudice” only
for those eligible employees who are no longer productive because they have
become either “superannuated,” or “incapacitated” by industrial injury (§ 20001,
italics added; see also § 21151, subd. (a)), and “incapacitated” means physically or
mentally unable to perform anywhere in the state, not just for a particular
employer. Section 20001 affords no license to carve out a “hardship or prejudice”
exception to the statutory requirement that a disability retiree be “incapacitated”
by job-related injury.
The facts of Mr. Nolan’s case may be sympathetic, but the rule proposed by
the majority opinion presumably would apply in less compelling circumstances.
Law enforcement work is stressful by nature, and serious job-related conflicts may
routinely arise. As the Court of Appeal noted, “[p]eace officers and firefighters

1
All further unlabeled statutory references are to the Government Code.
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sometimes put in for a disability retirement based on ‘mental incapacity’ [which]
derives fundamentally from the fact that they aren’t getting along with their
colleagues” and from “fear about the way fellow officers will behave toward them
in the future.” The concern arises that an officer whose difficulties with
coworkers have made it psychologically impossible to continue in that agency, but
not elsewhere, could receive lifetime disability benefits simply on evidence that
other agencies would not wish to hire him, or that the job market was full. (But cf.
Haywood v. American River Fire Protection Dist. (1998) 67 Cal.App.4th 1292,
1304-1307 (Haywood) [disability retirement not intended for one simply unwilling
to return to current agency because of personality conflicts after being terminated
for nonmedical cause].)
Moreover, if entitlement to a disability pension depends on whether similar
suitable employment is unavailable elsewhere, numerous complications of proof
will be presented. If the issue is general unemployability, what evidence on that
issue will suffice? If the issue is job availability, how broad an area must the
search for other openings cover? At what moment, or over what period, must the
unavailability exist? Such questions threaten to become the “tail that wags the
dog” in proceedings to determine whether a locally, but not generally,
incapacitated officer may retire for disability.
Of course, an eligible local safety member may do so if difficulties that
arose with a particular employer have produced a general psychological
incapacity to perform the usual and customary duties of a peace officer, regardless
of location. The line between “unable” and merely “unwilling” can be fine. (See
Haywood, supra, 67 Cal.App.4th 1292.) Nonetheless, if Mr. Nolan’s Anaheim
experience produced a genuine personal fear, so severe as to render him
dysfunctional, that, wherever he went, his record would follow, and he would face
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unbearable ostracism, threats, and lack of backup at times of danger, I agree he
may secure a disability pension.
Nothing in the Court of Appeal’s disposition prevents Mr. Nolan from
presenting such evidence on remand. Accordingly, I would affirm the judgment of
the Court of Appeal.
BAXTER, J.
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DISSENTING OPINION BY KENNARD, J.
California’s Public Employees’ Retirement System (PERS) manages the
pension benefits provided to more than 1.2 million public employees, retirees, and
their families under the Public Employee Retirement Law (PERL). (Gov. Code,
§ 20000, et seq.)1 Steven W. Nolan, a police officer for the City of Anaheim,
whose employees are members of PERS, applied for a disability retirement based
on a mental disability—his depression and anxiety stemming from fear that he
would be killed or injured for lack of backup by fellow officers were he to return
to duty in the Anaheim Police Department. The majority holds that to qualify for
disability retirement Nolan must show not only that he is incapacitated to perform
his usual duties for the Anaheim Police Department, but also that his incapacity
precludes him “from performing the usual duties of a patrol officer for other
California law enforcement agencies.” (Maj. opn. at p. 9.) That holding subverts
the clear intent of the Legislature, overrules some 30 years of PERS administrative
practice and precedent, as well as court decisional law, and sketches a new and
unworkable test of disability. Therefore, I cannot and do not join the majority.
I.
After Steven Nolan graduated from the sheriff’s academy at the top of his
class, the City of Anaheim hired him in 1984. In 1991, he joined the gang

1
All statutory references, unless otherwise noted, are to the Government
Code.
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investigative unit, but after observing instances of what he believed to be
excessive force by fellow officers, in 1992 he sought and received a transfer back
to patrol duty. When a department investigation failed to substantiate his
allegations of misconduct by the gang unit officers, Nolan himself was charged
with and found to have violated certain department rules, leading to his dismissal
in 1993.
In August 1994, an arbitrator reversed the dismissal and ordered Nolan’s
reinstatement. Soon Nolan began receiving anonymous calls threatening his life;
and the President of the Anaheim Police Association warned him in the
association’s newsletter, “If you want your job back . . . it is still here but I won’t
work with you.” Nolan’s work-related depression led him to apply for disability
retirement in September 1994.
An administrative law judge took evidence, and in October 1999 he denied
Nolan’s application, finding Nolan had failed to establish “his substantial inability
to perform his usual duties” and therefore was not mentally incapacitated. The
City of Anaheim adopted that decision.
Nolan petitioned the superior court for a writ of mandate. The court
reviewed the administrative record, which included reports from three mental
health professionals who had interviewed Nolan. Dr. William Winter, the only
one to have seen Nolan repeatedly, concluded after the last interview that Nolan
was suffering from anxiety disorder and could not return as a police officer with
the City of Anaheim, or “with any other municipality in Southern California,” but
might be able to be a police officer in a distant state such as Illinois where “his
problems with the City of Anaheim” were unlikely to catch up with him.
Dr. Samuel Dey was of the view that Nolan was suffering from depression and as
a result “his ability to function in the work setting would be significantly
impaired.” In the opinion of Dr. Melvin Schwartz, Nolan did “not have a
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psychiatric injury,” although his fear of personal harm were he to return to work
was “a realistic concern.” The superior court found that Nolan’s fears “make it
emotionally and mentally, although not physically, impossible” for him “to return
to law enforcement,” and concluded that Nolan suffered a “permanent
psychological disability.” Accordingly, in October 2000 the court issued a writ
directing the city to find Nolan “permanently incapacitated from working for the
City of Anaheim,” and thus entitled to disability retirement. The city appealed.
The Court of Appeal reversed, holding that the test was not whether Nolan
could perform the duties of a police officer in Anaheim (the test used by the
superior court), but whether he was incapacitated “to work in a similar position
elsewhere in the state.” It derived that test from language in section 21156
requiring physical or mental incapacity to perform “duties in the state service.”
We granted Nolan’s petition for review to resolve the meaning of this statutory
language.
II.
The paramount goal in construing statutes is to ascertain the Legislature’s
intent. (Palmer v. G.T.E California, Inc. (2003) 30 Cal.4th 1265, 1271.) Because
the words of the statute are the most reliable indication of that intent, the statutory
language is the starting point. (In re J.W. (2002) 29 Cal.4th 200, 209; People v.
Gardeley (1996) 14 Cal.4th 605, 621.) If that language is clear and unambiguous,
no further inquiry is called for. (Ibid.)
Here, the statutory language is clear and unambiguous. Section 20069
defines state service as “service rendered as an employee or officer . . . of the state,
the university, a school employer, or a contracting agency, for compensation, and
only while he or she is receiving compensation from that employer.” (§ 20069,
subd. (a), italics added.) The majority tellingly deletes the final three words from
this sentence, thus altering the statutory meaning. (Maj. opn, ante, at p. 6.) Read
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in its entirety, the section provides that an employee renders state service to, and is
paid by, a particular employer (“that employer”), whether the employer is the State
of California, the University of California, a school employer, or one of various
public entities that contract with PERS for employee coverage.
Section 21156, which governs disability retirement, provides: “If the
medical examination and other available information show to the satisfaction of
the [PERS Board of Administration], or in the case of a local safety member, other
than a school safety member, the governing body of the contracting agency
employing the member, that the member is incapacitated physically or mentally
for the performance of his or her duties in the state service and is eligible to retire
for disability, the board shall immediately retire him or her for disability.”
(§ 21156, italics added.) In plain language, the statute speaks not of incapacity for
a job in statewide public service, but more narrowly of incapacity to perform the
employee’s “duties in the state service,” that is, duties the employee performs for a
particular public employer. This means that state service, as applied to an
employee of an agency that has contracted for PERS coverage, pertains to the
service for which the employee is paid by a particular agency.
The majority, however, construes the statutory term “the state service” to
mean “all forms of public agency service that render an employee eligible” for
disability retirement. (Maj. opn., ante, at p. 6.) Thus, it requires Nolan to show
that he is incapacitated to perform not just his usual duties as a City of Anaheim
patrol officer, but also that he is incapacitated to perform the “usual duties of a
patrol officer” (maj. opn., ante, at p. 9) for any other California public agency that
hires patrol officers. The majority does not suggest how a city police officer such
as Nolan could possibly show that he could not perform the usual duties of a patrol
officer for the wide array of potential California public employers, including the
California Highway Patrol, the University of California, numerous school
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employers, or an even greater number of localities and public agencies, because
the usual duties of a patrol officer vary from agency to agency.
III.
Courts normally accord great weight to an administrative interpretation of a
statute unless it is clearly erroneous. (City of Huntington Beach v. Board. of
Administration (1992) 4 Cal.4th 462, 470, fn. 7; City of Oakland v. Public
Employees’ Retirement System (2002) 95 Cal.App.4th 29, 39; City of Sacramento
v. Public Employees’ Retirement System (1991) 229 Cal.App.3d 1470, 1478; see
Bonnell v. Medical Bd. of California (2003) 31 Cal.4th 1255, 1265.) This is
especially appropriate when, as here, the agency’s interpretation is a product of its
expertise and administrative experience. (Dowhal v. SmithKline Beecham
Consumer Healthcare (2004) 32 Cal.4th 910, 929-930; Yamaha Corp. of America
v. State Bd. of Equalization (1998) 19 Cal.4th 1, 22.) Unlike the majority, I would
follow PERS’s interpretation of the statutory scheme because it is consistent with
the Legislature’s intent.
PERS, which has filed an amicus curiae brief, is the administrative agency
charged with applying the provisions of the PERL. Under the statutory scheme,
although the City of Anaheim made the determination of disability for Nolan as a
local safety member (§ 21156), it is PERS that must determine disability “for most
state employees and local non-safety employees” of contracting local agencies.
PERS has long read the PERL to require it to determine disability based on
whether applicants are incapacitated to perform their actual usual duties. (See In
The Matter of Ruth A. Keck (2000) Cal. PERS Bd. Admin., Precedential Dec. No.
00-052 [“In determining eligibility for disability retirement, the actual and usual

2
This opinion is available at <http://www.calpers.ca.gov/eip-docs/about/leg-
reg-statutes/board-decisions/past/00-05-keck.pdf> (as of July 1, 2004).
5

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duties of the applicant must be the criteria upon which any impairment is
judged.”].)
The majority dismisses the concerns of amicus curiae PERS, which will
have to apply the majority’s test, that a statewide test applicable to all California
public employees with PERS coverage is “not administrable” because of the
multiplicity of such public employers throughout the state. The majority
seemingly has accepted the bland assurance of counsel for the city at oral
argument that “Everybody knows what a patrol officer does.” But as amicus
curiae PERS points out, although it may be possible to presume certain duties that
“other police departments require of police officers,” it cannot be presumed that
“uniform circumstances of employment” exist in other cities and other public
agencies statewide. PERS notes that “job classifications and descriptions from
around the state for a certain position title would not describe identical duties.”
Thus, under the majority’s holding PERS will be required to assume what duties
are most frequently assigned to a given position in order to evaluate a particular
employee’s disability application. Applying such a generalized and speculative
standard will result in an administrative nightmare, and, according to PERS, will
prevent it from administering its retirement system fairly.
IV.
The majority’s holding is also contrary to over 30 years of decisions by
California courts. In Mansperger v. Public Employees’ Retirement System (1970)
6 Cal.App.3d 873, a Court of Appeal decision, the applicant for disability
retirement was a Fish and Game warden, that is, an employee of the State of
California whose duties were defined in a job description applicable to all state
game wardens. (Id. at pp. 874-875.) It was therefore relatively easy to determine
whether the applicant’s physical limitation on lifting heavy objects made him
substantially unable to perform his actual usual duties as a State of California Fish
6

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and Game warden. (Id. at p. 876.) But when, as here, the applicant works for a
local agency that has contracted with PERS, the job descriptions for positions with
the same title will vary from local employer to local employer.
In
Hosford v. Board of Administration (1978) 77 Cal.App.3d 854, 860-861,
the Court of Appeal concluded that an applicant’s usual duties are not defined
exclusively by a job’s formal description or its physical requirements, but are
determined in light of the actual demands of the job the applicant has been
performing. (See Thelander v. City of El Monte (1983) 147 Cal.App.3d 736 [usual
duties test applied to injured trainee who as yet had no actual usual duties].)
Unlike the actual usual duties test, the majority’s test is based on generic
duties common to similarly titled jobs, and it disregards altogether the actual
duties that the applicant was required to perform and for which the applicant may
now be incapacitated.
V.
Here the statutory language is clear. Read together, sections 20069 and
21156 reflect the Legislature’s intent that an employee covered by PERS is
physically or mentally disabled when the employee is substantially unable to
perform the actual and usual duties of the position he or she holds for the current
employer. If that employer is the State of California, or a statewide entity such as
the University of California, the usual duties of the applicant may be properly
determined in part by reference to a job description applicable statewide. But if,
as here, the employer is a local contracting agency the usual duties of the applicant
are those required by the particular employer of the applicant. In either case the
applicant’s actual usual duties for the current employer are the correct standard for
determining incapacity.
The majority, however, ignores the Legislature’s intent as captured in the
plain language of the statutes at issue. Instead it finds ambiguity where there is
7

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none. Even if the statutory language were ambiguous, moreover, a court must
resolve any ambiguity in favor of the employee seeking disability retirement.
(Ventura County Deputy Sheriffs’Assn. v. Board of Retirement (1997) 16 Cal.4th
483, 490.) Here, there is no ambiguity in these statutes, apart from that the
majority creates by not reading them carefully.
Today’s decision is a serious matter for any law enforcement officer
working for a local public agency in this state, or anyone considering a career in
local law enforcement. It means that, to obtain a disability retirement, it is not
enough that an officer is no longer able, because of physical or mental injury, to
perform the duties assigned by the employing agency. Rather, a city or other local
agency may deny a disability retirement if the officer might be able to perform the
duties of a roughly comparable position for some other public agency anywhere in
this large state. This result is not compelled by the governing statute, it is contrary
to the statute’s established administrative construction, and it imposes a heavy
burden on injured employees. Our law enforcement officers deserve better.
I would reverse the Court of Appeal’s judgment with directions to affirm
the superior court’s judgment granting petitioner the relief he seeks.
KENNARD,
J.
I CONCUR:
WERDEGAR, J.
8

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Nolan v. City of Anaheim
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted XXX 104 Cal.App.4th 1170
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S113359
Date Filed: July 1, 2004
__________________________________________________________________________________

Court:

Superior
County: Orange
Judge: William F. McDonald

__________________________________________________________________________________

Attorneys for Appellant:

Grancell, Lebovitz, Stander, Marx and Barnes, Grancell, Lebovitz, Barnes and Reubens, Norin T. Grancell
and Lawrence Kirk for Defendant and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Lemarie, Faunce, Pingel & Singer, Law Office of Steven R. Pingel, Steven R. Pingel; Faunce, Singer &
Oatman, Edward L. Faunce and Larry J. Roberts for Plaintiff and Respondent.

Peter H. Mixon, Carol McConnell and Richard B. Maness for California Public Employees Retirement
Association as Amicus Curiae on behalf of Plaintiff and Respondent.

1

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Counsel who argued in Supreme Court (not intended for publication with opinion):

Lawrence Kirk
Grancell, Lebovitz, Stander, Barnes and Reubens
6701 Center Drive West, 12th Floor
Los Angeles, CA 90045-0045
(310) 649-4911

Steven R. Pingel
Law Office of Steven R. Pingel
18000 Studebaker Road, Suite 700
Cerritos, CA 90703
(562) 467-8908

Richard B. Maness
California Public Employees’ Retirement System
Lincoln Plaza, 400 P Street
Sacramento, CA 95814
(916) 326-3670

2

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Opinion Information

Date:	Docket Number:
Thu, 07/01/2004	S113359

Disposition
Jul 1 2004	Opinion: Affirmed with directions

Dockets
Feb 5 2003	Petition for review filed   respondent Steven Nolan
Feb 7 2003	Record requested
Feb 11 2003	Received Court of Appeal record   blue plastic file
Feb 24 2003	Answer to petition for review filed   appellant City of Anaheim
Mar 13 2003	Record requested   remainder of C/A record. (overnite)
Mar 14 2003	Received Court of Appeal record   one blue plastic file
Mar 21 2003	Time extended to grant or deny review   to 5-6-03
Apr 9 2003	Petition for Review Granted (civil case)   Votes: George, CJ., Kennard, Baxter, Werdegar, Chin, Brown and Moreno, JJ.
Apr 9 2003	Order filed   In order to conform to the format prescribed by the California Style Manual (Cal. Style Manual (4th ed. 2000) & 6:3), the above entitled matter is retitled as follows: STEVEN W. NOLAN, Plaintiff and Respondent, v. CITY OF ANAHEIM, Defendant and Appellant.
Apr 22 2003	Certification of interested entities or persons filed   by counsel for aplt
Apr 25 2003	Certification of interested entities or persons filed   by counsel for resp.
Apr 25 2003	Filed:   Letter from counsel Steven Pingel: re representation of respondent.
May 8 2003	Request for extension of time filed   by counsel for respondent Steven W. Nolan requesting to June 7, 2003 (Sat) t/file opening brief/merits. faxed to sf
May 19 2003	Extension of time granted   for resp to file the opening brief on the merits, to 6-9-03. No further extensions of time will be granted.
Jun 10 2003	Opening brief on the merits filed   respondent Steven W. Nolan [rule 40k]
Jul 8 2003	Notice of intent to rely on CA brief (as answer brief)   by aplt City of Anaheim
Jul 28 2003	Request for extension of time filed   for resp to file the reply brief on the merits, to 8-4-03.
Aug 1 2003	Extension of time granted   to 8-4-03 for resp to file the reply brief on the merits. No further extensions will be granted.
Aug 4 2003	Reply brief filed (case fully briefed)   by resp Nolan
Sep 3 2003	Received application to file amicus curiae brief; with brief   by Cal. Public Emp. Retirement System in support of resp
Sep 11 2003	Permission to file amicus curiae brief granted   On application of California Public Employees' Retirement System for permission to file an amicus curiae brief in support of plaintiff and respondent is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Sep 11 2003	Amicus curiae brief filed   California Public Employees' Retirement System in support of plaintiff and respondent.
Mar 10 2004	Case ordered on calendar   4-7-04, 9am, L.A.
Mar 19 2004	Filed:   request of resp to divide oral argument time with amicus CalPERS
Apr 2 2004	Order filed   Permission granted for two counsel to present oral argument on behalf of resp.
Apr 2 2004	Order filed   Permission granted for resp to allocate 15 min oral argument time to a/c CalPERS.
Apr 7 2004	Cause argued and submitted
Jul 1 2004	Opinion filed: Affirmed in full with directions   We affirm the judgment of the Court of Appeal reversing the judgment of the trial court; we remand the matter for further proceedings consistent with this decision. Majority opinion by Brown, J. ---------------joined by George, C.J., Chin, Moreno, JJ. Concurring & Dissenting opinion by Baxter, J. Dissenting opinion by Kennard, J.-----joined by Werdegar, J.
Jul 19 2004	Rehearing petition filed   by Pltf-resp Nolan (40k)
Jul 21 2004	Time extended to consider modification or rehearing   to 9-29-04
Jul 27 2004	Answer to rehearing petition filed   appellant CITY OF ANAHEIM.
Aug 26 2004	Received:   letter from counsel for resp, with attachment
Sep 1 2004	Rehearing denied   Kennard, J., and Werdegar, J., are of the opinion the petition should be granted.
Sep 1 2004	Remittitur issued (civil case)

Briefs
Jun 10 2003	Opening brief on the merits filed
Jul 8 2003	Notice of intent to rely on CA brief (as answer brief)
Aug 4 2003	Reply brief filed (case fully briefed)
Sep 11 2003	Amicus curiae brief filed

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