Officer Who Sought and Received Disability Retirement is “Honorably Retired” Notwithstanding Pending Disciplinary Action

In an opinion dated March 24, 2017, the Fourth District of the Court of Appeal, acting in Bonome v. City of Riverside (2017 Cal.App. LEXIS 264), held that an officer who was facing serious disciplinary action, but who sought and received an industrial disability retirement prior to any discipline being imposed, was “honorably retired” within the meaning of Penal Code Section 16690, and thus entitled to a retiree identification card with the endorsement for Carry Concealed Weapon (“CCW”).

Facts

Bonome had been employed as a Riverside Police Officer since 1995. On May 21, 2013, a Memorandum of Finding was sustained against Bonome for failing to properly investigate and report an incident involving a sexually abused girl in June 2012.  Chief Diaz recommended Bonome be terminated. Prior to the hearing on his termination, Bonome applied for and was granted a disability retirement by CalPERS for a back injury he sustained while on duty.

Upon his disability retirement being effective, Bonome requested his retirement identification badge and that the badge include a CCW endorsement.  Bonome’s request was denied because Chief Diaz and the City did not consider him to be “honorably retired” as the term is defined in Penal Code Section 16690.  The City further determined that he was not entitled to a hearing to dispute the finding.

Bonome filed a petition for Writ of Mandate contending he was honorably retired and entitled to a CCW endorsement.  He further asserted that if the endorsement was denied for cause, he was entitled to a good cause hearing.  The trial court agreed and granted the writ.

The Court of Appeal’s Decision

The City reasoned that since Bonome only sought the disability retirement after he knew he was about to be fired, Section 16690 precluded a finding that he was “honorably retired.”  Section 16690 excludes those who resign or take a pension to avoid disciplinary action from the category of honorably retired peace officers.

The Court of Appeal rejected that reasoning and ruled in favor of Bonome, holding that the express language of the statute spoke to those who resign or who take a service pension as being ineligible for a CCW endorsed retiree identification card.

The Court furthermore distinguished disability pensions from service pensions, noting that one who is eligible for a service pension may take that pension as of right and without need of permission or approval, whereas a disability pension, such as that obtained by Bonome, requires an application and finding of industrial disability, either of which may be denied.

Therefore, since Bonome sought, was approved for, and obtained a disability pension before he was terminated, he is not excluded from the definition of one who is “honorably retired” for purposes of Section 16690, and thus is entitled to a retiree identification card endorsed for CCW.

HOW THIS AFFECTS YOUR AGENCY

It appears that this case may have turned on an issue of timing and statutory construction.  Section 16690 does not explicitly except those taking a disability retirement in lieu of disciplinary action as “honorably retired,” despite the dictates of logic that this exclusion should also apply to those seeking to avoid termination or other disciplinary action by this mechanism.  The Court of Appeal has now clarified the issue of who a law enforcement agency is required to determine who is “honorably retired.”

Therefore, police employers will want to be mindful of this decision when addressing a disciplinary action for an employee who is or may be seeking a disability retirement, but where the employer sees it imperative that the individual remain ineligible for retiree CCW authority.  Of course, a retiree may be precluded from a CCW endorsement for good reason pursuant to Penal Code Section 26305, but would be able to challenge that finding by way of a due process hearing as set forth in Penal Code Section 26320.

Attention should also be given to earlier appellate decisions holding that to be “honorably retired” one must transition directly from employment to initiation of pension benefits without break.  See, e.g., Gore v. Yolo County District Attorney’s Office which was addressed by us in our March 4, 2013 Client Alert (Vol. 28 No. 4).

As in all matters involving interpretation of the law, it is important to secure advice and guidance from your agency’s legal counsel on any specific case or issue.

As always, if you wish to discuss this matter in greater detail, please feel free to contact us at (714) 446 – 1400 or via email at jrt@jones-mayer.com [for James Touchstone] or prc@jones-mayer.com [for Paul Coble].

Information on www.jones-mayer.com is for general use and is not legal advice.  The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute, an attorney-client-relationship.





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