Lanquist v. Ventura County Employees' Retirement , 235 Cal. App. 4th 186 ( 2015 )

Filed 3/16/15
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
TIMOTHY S. LANQUIST et al., 2d Civil No. B251179
(Super. Ct. No. 56-2011-404515-
Plaintiffs and Appellants, CU-WM-VTA )
(Ventura County)
v.
VENTURA COUNTY EMPLOYEES'
RETIREMENT ASSOCIATION,
Defendant and Respondent;
COUNTY OF VENTURA,
Real Party in Interest and Respondent.
Ventura County Employees’ Retirement Association (VCERA) permits
employees to purchase retirement service credit for time spent in military service. It
excludes time spent as a midshipman at the United States Naval Academy (Academy).
Our interpretation of a Ventura County Board of Supervisors' resolution, adopting the
County Employees Retirement Law (CERL), leads us to the opposite conclusion.
"Military service" includes service as a midshipman. (Gov. Code, § 31450 et seq.)1
Ventura County employees Timothy S. Lanquist and Thomas W. Temple
appeal a judgment denying their petition for a writ of mandamus to compel VCERA to
grant their requests to purchase retirement service credit for military service as
1
All statutory references are to the Government Code unless otherwise stated.
midshipmen at the Academy. We reverse the judgment and direct the trial court to issue a
writ of mandamus requiring VCERA to grant their requests.
FACTUAL AND PROCEDURAL BACKGROUND
Lanquist and Temple served as midshipmen at the Academy for about four
years before they became commissioned naval officers. Temple was enlisted before he
attended the Academy; Lanquist was not. Both men later became employees of Ventura
County. Lanquist is a deputy sheriff, and Temple is an assistant county counsel. They are
members of VCERA.
Lanquist and Temple applied to VCERA to purchase retirement service
credit for their military service. They supported their requests with copies of their
"DD214" forms. The Department of Defense uses DD214 forms to record and report
transfer or separation of military personnel from a period of active duty. (32 C.F.R.
§ 45.2.) Lanquist's and Temple's forms did not include their Academy time in the box
labeled "Record of Service." Temple's form did include a "Remark" that reported his
Academy time.
Lanquist and Temple supplemented their DD214 forms with letters from the
Department of the Navy certifying that their service of four years as midshipmen at the
Academy was "continuous active duty." The letters, signed by the Academy's registrar,
state that Lanquist and Temple "attended the United States Naval Academy on continuous
active duty in the U.S. Navy." While attending, they were compensated by "pay and
allowances as were authorized for an active duty member of the Navy," and were subject
to the Uniform Code of Military Justice.2 The letters also refer to two provisions of the
United States Code that define "active duty" to include "attendance, while in the active
military service, at a school designated as a service school."3
VCERA denied Lanquist's and Temple's requests to purchase retirement
service credit for midshipmen service at the Academy. It granted, however, their requests
2
(10 U.S.C. § 802(a)(2) [Uniform Code of Military Justice applies to "[c]adets, aviation
cadets, and midshipmen"].)
3
(10 USCS § 101(d)(1); 37 U.S.C. 101(18).)
2.
to purchase retirement service credit for all other military service. This included 40 weeks
Temple spent at the Naval Academy Preparatory School before he attended the Academy
and two years Lanquist spent afterward at the Naval Postgraduate School earning a
master's degree.
VCERA explained that it did not consider service as a midshipman at the
Academy to be creditable "active duty." It based its decision on a 1979 legal opinion letter
prepared by an assistant county counsel. The 1979 letter "appl[ied] rules of statutory
construction" to conclude that "military academy schooling does not qualify as creditable
public service; to qualify as creditable public service, military service must be active
military duty in the armed forces of the United States." Counsel reasoned that the
"ordinary meaning" of "military service" in the CERL is "active service," based on several
opinions of the California Attorney General that considered the question whether
creditable service for military service is active duty. Those opinions did not discuss
academy time or federal law defining the term "military service" or "active duty."
In a subsequent letter to Lanquist in 2007, VCERA "confirm[ed] [its] prior
conclusion that such schooling [at the Academy] does not constitute 'active duty' military
service" and he is therefore ineligible for retirement service credit. VCERA relied on
federal authorities to conclude that training at a military academy is only "active duty" if it
takes place after an officer is commissioned. It cited section 971 of title 10 of the United
States Code for the proposition that general military law "does not consider academy
schooling as active duty 'service' when computing length of service for any purpose,
including eligibility for retirement service credit."4
Lanquist and Temple appealed VCERA's denial to the VCERA retirement
board. At the hearing, Lanquist and Temple presented evidence that as midshipmen at the
Academy they were compensated as active duty servicemen and experienced hardships
and dangers on surface cruises with active naval vessels similar to those experienced by
commissioned officers.
4
"[S]ervice as a cadet or midshipman . . . may not be counted in computing, for any
purpose, the length of service of an officer . . . ." (10 U.S.C. § 971(a).)
3.
The retirement board upheld VCERA's denial, on a two-to-six vote, with one
abstention. Two members stated their belief that they "have to comply with [County of
Ventura's] interpretation of the resolution" in the 1979 opinion letter. One member asked
staff to research the issue whether the retirement board had authority to promulgate a rule
allowing credit for Academy time.
Lanquist and Temple filed a petition for writ of mandamus and complaint for
declaratory relief in the trial court. In addition to the administrative record, they requested
judicial notice of various legislative, administrative, and other official acts of the United
States government pertaining to cadets and midshipmen.
VCERA submitted a declaration from VCERA's retirement benefits
manager. The manager stated that VCERA allows military service credit only for that
"period reported in the member's [DD214] Record of Service," and has followed this
policy for over 30 years. It does so in reliance on the 1979 opinion letter, and "later
opinions [that] confirm and expand upon the 1979 opinion" to explain that "military
academy service" is ineligible because the "DD Form 214's do not identify . . . academy
attendance . . . as active duty service," and because "such service is not identified by the
Department of the Navy as active duty service that is creditable for retirement pay."
The VCERA retirement benefits manager declared that written procedures
for processing "buy back" requests require certification for "active military service" with a
DD214 form. VCERA uses a "Public Service Worksheet" to calculate the cost of service
credit purchases. That worksheet requires the retirement specialist to record the "Dates of
Service" and to indicate the source of proof as "DD214" or "other." The manager declared
that VCERA does not accept evidence of compensation as a cadet or midshipman at the
Academy as proof of prior military service.
Lanquist and Temple submitted a declaration of Clifford L. Williams, Jr., a
Ventura County district attorney investigator, who stated that VCERA denied his request
to purchase retirement service credit as a cadet at the United States Air Force Academy in
2011, although that period of service was listed in the "Record of Service" block of his
DD214 form. Williams's form is an older version than the forms issued to Lanquist and
4.
Temple. It includes a remark: "Ref Item #18a is cadet time at USAF Academy and not
creditable for basic pay purposes in a commissioned status."
The trial court denied the petition. It determined that VCERA's policy of
denying retirement service credit for service at the Academy is "appropriate" in view of
state and federal authorities interpreting the terms "public service," and "active duty." It
gave "some consideration" to VCERA's interpretation, in deference to VCERA's technical
expertise with regard to administration of retirement systems.
DISCUSSION
Standard of Review – Agency Interpretation of Statute
Our review of the trial court's decision is de novo. (Prentice v. Board of
Administration (2007) 157 Cal. App. 4th 983, 989.) Our review of an agency's quasi-
legislative administrative decision is limited to a determination whether the action was
arbitrary, capricious, lacking in evidentiary support, or contrary to procedures provided by
law. (Code Civ. Proc., § 1085; California Teachers Assn. v. Ingwerson (1996) 46
Cal. App. 4th 860, 867.) But our review of an agency's interpretation of a statute is not so
limited. (Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal. 4th 1, 7.)
We "'tak[e] ultimate responsibility for the construction of the statute, [but] accord[] great
weight and respect to the administrative construction.'" (Id. at p. 12.) The quasi-
legislative standard of review is not applicable here because VCERA did not exercise
discretionary rule-making power; it merely construed a statute. (Ibid.)
The weight we accord VCERA's interpretation depends upon factors that
include the agency's expertise and technical knowledge, indications of careful
consideration by the agency's senior officials, evidence that the agency consistently
maintained the interpretation over time, and indications that the interpretation was
coterminous with enactment of the statute. (Yamaha Corp. of America v. State Bd. of
Equalization, supra, 19 Cal. 4th 1, 12.) An interpretation of a statute contained in a
regulation adopted after public notice and comment is more deserving of deference than
one contained in an opinion letter prepared by a single staff member. (Id. at p. 13.)
VCERA's denial was based on an opinion letter prepared by counsel that interpreted the
5.
CERL and the resolution. It is not embodied in a regulation. VCERA has expertise and
technical knowledge in the operation and management of a retirement plan, but it does not
have expertise in the nature of active military service. It has plenary authority over
administration of the retirement system only within the confines of the CERL. (Cal.
Const., art. XVI, § 17; § 31520 [management of a county retirement system vested in the
retirement board].) Like the trial court, we give VCERA's interpretation due
consideration. But we reach a different result.
The Statutory Framework
Under the CERL, a county employee may purchase additional retirement
service credit based on "allowed" prior service for a public agency if the county has
adopted the applicable provisions of the CERL. (§§ 31641.1, 31641.95.5) The United
States military is a public agency for purposes of the CERL. (Ibid.) A county's board of
supervisors may limit applicability to one or more public agencies. (§ 31641.95;
Association of Orange County Deputy Sheriffs v. County of Orange (1982) 138 Cal. App. 3d
569, 570, 572 [Orange County properly limited applicability to exclude all military
service].)
In 1974, the Ventura County Board of Supervisors (Board) adopted the
provisions of the CERL that authorize purchase of retirement service credit for previous
"military service." It did not limit or define that term. It did not adopt any resolution
excluding service as a midshipman at the Academy from eligible "military service." 6 The
term "military service" is not defined by the CERL. VCERA has promulgated no rules to
define or limit it.
5
"Sections 31470.7, 31478, 31479, 31480, 31641.1, 31641.2, 31641.3, 31641.4, 31641.8,
and 31641.9 may only be applicable in any county or district on the first day of the month
after the governing board of such county or district adopts, by majority vote, a resolution
providing that those sections shall become applicable in such county or district. Such
resolution may limit the applicability of such sections to any one or more of the public
agencies as defined by Section 31478." (§ 31641.95.)
6
We express no opinion on its authority to do so.
6.
A handbook submitted by VCERA defines "public service" to include
employment with any department or agency of the United States government, including
"active military service." In response to a request for public information, VCERA stated it
has "no particular records that evidence the definition of 'military service' or 'service in the
armed forces.'" VCERA's retirement benefits manager declared that its written procedures
require certification of military service with a DD214 form.
The CERL defines creditable "public service" to be service rendered (a) for
"compensation," and (b) as "an officer or employee" of a public agency, such as the U.S.
military. (§§ 31479, 31478.) VCERA contends that midshipmen are neither compensated
nor employees and their service is, therefore, not creditable.
(a) Midshipmen Compensation
Lanquist and Temple submitted evidence that they "received compensation"
as midshipmen by "pay and allowances as were authorized for an active duty member of
the Navy." VCERA contends the letters from the Department of Defense are immaterial
because the CERL requires that the service be "established to the satisfaction of the
[county's retirement] board." (§ 31641.4.) That is only part of a disjunctive provision.
Section 31641.4 provides: "The service for which he elects to contribute . . . must be
certified to by an officer of the public agency where he rendered such public service or
must be established to the satisfaction of the board." (Italics added.) The Board adopted
this provision without limitation. The Navy is the agency where Lanquist and Temple
rendered service. The letters certified that both men were "on continuous active duty" and
were compensated by "pay and allowances as were authorized for an active duty member
of the Navy." The letters satisfy section 31641.4.
(b) Midshipmen as Employees
The California Attorney General has broadly interpreted the term
"employee" in sections 31479 and 31478 to include "enlisted men."7 (30
Ops.Cal.Atty.Gen. 49, 51 (1957).) The Attorney General has not considered whether
"employee" includes a person who attends a military academy. The term "employee" has
7
We prefer "persons."
7.
no fixed meaning. (Knight v. Board of Administration (1948) 32 Cal. 2d 400, 402.) "The
flexibility of the term 'employee' is of special significance when considered in connection
with the rule that statutory provisions for pensions must be liberally construed to the end
that their beneficial purposes are broadened rather than narrowed." (Ibid.)
In determining the meaning of a statute, we look first to its language as the
most reliable indicator of legislative intent, giving the words their ordinary and usual
meaning and construing them in their statutory context. (Commission on Peace Officer
Standards & Training v. Superior Court (2007) 42 Cal. 4th 278, 305.) If the plain,
commonsense meaning of a statute's words is unambiguous, the plain meaning controls.
(Ibid.) The terms "officer or employee of a public agency" and "military service" do not
plainly exclude service as a midshipman. In the absence of any further definition in the
CERL, we consider (but are not bound by) the federal government's use of the term
"military service" in the context of retirement service credit for midshipmen.
The general military law defines "active duty" to include "attendance, while
in the active military service, at a school designated as a service school by law or by the
Secretary of the military department concerned." (10 U.S.C. § 101(d)(1) [definitions
applicable to title 10, Armed Forces]; 37 U.S.C. § 101(18) [definitions applicable to title
37, Pay and Allowances of the Uniformed Services]; 38 U.S.C. § 101(21) [definitions
applicable to title 38, Veterans' Benefits].8)
A retiring federal civilian employee may purchase credit for military
academy time in the federal retirement system. (5 U.S.C. §§ 8332(c)(1)(B) [civil service
retirement credit shall include credit for "military service"]; 8331(13)(C) ["military
service" is honorable active service including service "as a midshipman at the United
States Naval Academy"]; 8411(c)(1) [a member of the Federal Employee's Retirement
8
"Active duty" is "full-time duty in the active military service of the United States,"
including "full-time training duty, annual training duty, and attendance, while in the active
military service, at a school designated as a service school by law or by the Secretary of
the military department concerned." (10 U.S.C. § 101(d)(1); 37 U.S.C. § 101(18).)
"Active duty" includes "service as a cadet at the United States Military, Air Force, or Coast
Guard Academy, or as a midshipman at the United States Naval Academy." (38 USCS
§ 101(21)(D).)
8.
System shall be allowed credit for "military service"]; 8401(31)(C) ["military service" is
honorable active service including service "as a midshipman at the United States Naval
Academy"].) The contrary holding in Horner v. Jeffrey (Fed.Cir. 1987) 823 F.2d 1521
(Horner) was superseded by enactment of 5 United States Code section 8331. The United
States Office of Personnel Management requested the enactment in 2007 to "clarify the use
of service as a cadet at a U.S. military academy for civilian retirement purposes,"
consistent with a "long-standing policy."
A retiring enlisted person is allowed retirement service credit for service as a
midshipman at the Academy, but a retiring officer is not. (10 U.S.C. §§ 8911 [service
years for enlisted retirement], 971(a) ["The period of service under an enlistment or period
of obligated service while also performing service as a cadet or midshipman or serving as a
midshipman . . . may not be counted in computing, for any purpose, the length of service
of an officer"].)
Thus, an enlisted staff sergeant is allowed retirement service credit for prior
service at a military academy (1980 U.S. Comp.Gen. LEXIS 3352); whereas, a Coast
Guard officer is not. (Jacobs v. U.S. (9th Cir. 1982) 680 F.2d 88.) "[S]ervice as a cadet or
midshipman at a service academy is creditable for the purpose of determining eligibility
for retirement under 10 U.S.C. 8914 (enlisted retirement) but is not creditable for a
member retiring under 10 U.S.C. 8911 (commissioned officer retirement)." (1980
Comp.Gen., supra.) Similarly, the United States Bureau of Naval Personnel, Instructions
for Issuance of DD 214 provides at page 11: "[S]ervice while attending a service academy
as a midshipman, USN, or as a cadet is creditable for enlisted members reverted to enlisted
status, but in no case is it creditable for warrant or commissioned officers."
VCERA points out that Lanquist and Temple were both commissioned
officers before they separated from the military. But they are not commissioned officers
now. They are not retiring in a commissioned officer status.
An enlisted person is allowed retirement service credit for Academy time
even if they were a commissioned officer for a period of time. For example, in the
Comptroller General’s opinion, Staff Sergeant Shirley was entitled to credit in the military
9.
retirement system for his four years of service as a cadet at the Air Force Academy, even
though he was a commissioned officer for 14 years, because he was not an officer when he
retired. He resigned from his appointment as an officer and later enlisted in the regular
Air Force; then he retired. (1980 U.S. Comp.Gen., supra.)
Like Staff Sergeant Shirley, Lanquist and Temple are no longer
commissioned officers. They are former commissioned officers who separated from the
military and became civilian public employees before retiring. The military therefore
would consider their attendance at the Academy to be "military service" and "active duty"
for purposes of retirement service credit. (5 U.S.C. §§ 8332(c)(1)(B), 8331(13),
8411(c)(1), 8401(31).) The language of the CERL does not suggest our Legislature
intended more restrictive use of the terms. The Board has not acted to limit credit for
military service under the CERL. Accordingly, we interpret the terms "public service" and
"military service," as used in the CERL, and adopted by the Board, to include service as a
midshipman at the Academy.
California Public Employees' Retirement System's (CalPERS) Policy
With Regard to Academy Time
We are not persuaded by VCERA's unproven assertion that CalPERS
excludes Academy time. The Government Code provides that a member of CalPERS may
purchase prior retirement service credit for "active service with the Armed Forces or the
Merchant Marine of the United States." (§§ 21024, 21050.) The term "active service" is
undefined. The CalPERS Board of Administration has promulgated rules governing its
administration, but none interpret or limit the term "active service."
Other States' Practices With Regard to Academy Time
VCERA cites several out-of-state cases that uphold agency decisions to deny
retirement service credit for Academy time. (Donovan v. State Employees' Retirement
System (Pa. 1997) 701 A.2d 310; Canzoneri v. Hevesi (N.Y. 2005) 2l A.D.3d 639; Morris
v. Division of Retirement (Fla. 1997) 696 So. 2d 380; Crawford v. Department of
Transportation (Fed.Cir. 2004) 373 F.3d 1155; Whalen v. Office of Personnel
Management (Fed.Cir. 1992) 959 F.2d 924.) These cases are unpersuasive because they
10.
involve dissimilar statutory schemes, rely on the superseded Horner opinion, or are
factually inapposite.
DISPOSITION
We reverse the judgment and direct the trial court to issue a writ of
mandamus requiring VCERA to allow Lanquist and Temple to purchase retirement service
credit for midshipman service at the Academy. Costs are awarded to appellants Lanquist
and Temple.
CERTIFIED FOR PUBLICATION.
GILBERT, P. J.
We concur:
YEGAN, J.
PERREN, J.
11.
Mark S. Borrell, Judge
Superior Court County of Ventura
______________________________
Timothy S. Lanquist, in pro. per., for Plaintiff and Appellant.
Thomas W. Temple, in pro. per., for Plaintiff and Appellant.
Leroy Smith, County Counsel, Lori A. Nemiroff, Assistant County Counsel,
for Defendant and Respondent Ventura County Employees' Retirement Association.
Atkinson, Andelson, Loya, Ruud & Romo, Edward B. Reitkopp for Real
Party in Interest and Respondent County of Ventura.
12.