Disability Retirement to Avoid Termination Qualifies as “Honorably Retired” for CCWs

A Riverside police officer who took disability retirement to avoid termination was “honorably retired,” according to the California Court of Appeal.  In Bonome v. City of Riverside, the court said the City must either grant the officer’s request for his retirement identification badge with a CCW endorsement, or provide a good cause hearing.

In June of 2012 an internal affairs investigation was opened with Officer Bonome as the subject officer.  On October 10, 2012 Officer Bonome suffered an on-duty back injury.  In May of 2013 the internal affairs investigation sustained allegations for failure to investigate and prepare a police report.  The Chief reviewed the report and declared his intention to terminate Officer Bonome.

The officer’s attorney was able to set out the Skelly hearing.  This allowed Officer Bonome to complete his application for industrial disability retirement.  The termination proceedings were suspended when the retirement became official.

Shortly after, the Assistant Chief sent notice to Officer Bonome’s attorney saying the Department would not issue a CCW endorsement.  Additionally, the Department would not offer a good cause hearing.  According to the Chief, Officer Bonome was not “honorably retired.”  The officer brought suit seeking to compel the Chief to issue the retirement badge with a CCW endorsement, or provide a good cause hearing.

The case centered on the correct definition of an honorably retired peace officer.  Penal Code §16690 says an honorably retired peace officer is any officer who has qualified for, and had accepted a service or disability retirement.  However, this does not include officers who agreed to a service retirement in lieu of termination.  According to the City, the Legislature must have meant to exclude all officers who retired to avoid termination.  The Court was not persuaded.

Officer Bonome argued, and the Court agreed, he was an honorably retired peace officer.  The statute only excludes peace officers who take a service retirement in lieu of termination.  According to the Court, an officer cannot choose to take a disability retirement to avoid termination.  Either an officer is disabled, and unable to perform his or her duties, or not.  Officer Bonome was evaluated after sustaining an on-duty injury to his back, and the evaluation recommended a disability retirement.  The Chief’s intent to terminate was irrelevant.

The Court noted, the City does not have to grant the CCW endorsement.  Penal Code §25920 says CCW permits for honorably retired officers can be denied or revoked.  However, to do this the City must show good cause as to why. 

Peace Officer's Employer May Not Condition Reinstatement From Disability Retirement

A peace officer who recovers from the injury that led to their industrial disability retirement is entitled to reinstatement without any conditions, according to the recent court ruling in Department of Justice v. CalPERS.

Angelita Resendez was employed by the California Department of Justice as a peace officer until her industrial disability retirement in December 2008. She developed a spine condition as a result of several on-the-job injuries. But in September 2009 she applied to CalPERS for reinstatement. Based on a medical evaluation of Resendez, CalPERS notified her in 2010 that she was eligible for reinstatement. DOJ then offered Resendez reinstatement on the condition that she complete medical and psychological exams and submit to a background check. Resendez rejected DOJ’s offer.

Next, DOJ made multiple appeals to overturn CalPERS' determination about Resendez. But these appeals were denied. The Superior Court also ordered DOJ to provide Resendez backpay to 2010 when CalPERS determined she was eligible for reinstatement. DOJ then appealed to the Court of Appeal.

On October 13, 2015, the Court of Appeal ruled in favor of CalPERS and Resendez. CalPERS was correct to limit its analysis to whether Resendez had recovered from the injury that caused her disability. The law requires CalPERS to order a medical exam and then determine if the employee is fit to return to duty. And Government Code section 1031 sets the minimum standards for peace officers. But CalPERS is not authorized to identify new conditions that might disqualify the employee; it must stick to the original disability.

The court also ruled that Government Code section 21193 creates a two-step process for reinstatement. First, CalPERS must determine the employee is fit to return to duty. Second, the employee's former employer must offer reinstatement.

Here, CalPERS properly determined Resendez was fit to return to duty. So DOJ had a mandatory duty to offer Resendez reinstatement. It had no authority to condition her reinstatement on medical exams and background checks. However, once DOJ has reinstated Resendez it may terminate, demote, or transfer her for failing to meet the minimum standards set by Government Code section 1031.

This ruling provides strong protections for peace officers who have been forced into disability retirement by on-the-job injuries. Once a peace officer recovers from such an injury they are entitled to reinstatement with their former employer. An employer has a mandatory duty to offer reinstatement and may not put conditions on the offer.

6th Appellate District: Reversal for Wrong Standard Applied

In Rodriguez v. City of Santa Cruz, the Sixth Appellate District ruled against an order from the superior court denying a petition. The petition was filed by Josafat Rodriguez Jr., a former Santa Cruz police officer, who applied to the City of Santa Cruz for industrial disability retirement. He claimed a psychiatric disability due to post traumatic stress disorder (PTSD). After the City denied his application, he challenged the ruling by filing a "Petition for Writ of Mandate." This petition was subsequently denied by the superior court. In deciding against the court's ruling the appellate court held that the wrong standard of review had been applied.

The appellate court explained that in reviewing the City of Santa Cruz's decision, the trial court was required to use its independent judgment. This however, is not the standard that was actually applied. In lieu of applying its own independent judgment the court deferred to the findings of an Administrative Law Judge who decided on behalf of the City of Santa Cruz, that the petition was not credible and that his claim should be denied. In reviewing the statement of decision of the trial court, it was evident that instead of applying its own independent judgment, it rendered a decision on the grounds of its determination that there was sufficient evidence to support the Administrative Law Judge's finding. In addition the trial court failed to articulate its independent findings in regards to key issues.

Ultimately, the appellate court ruled that while referencing a standard of independent judgment, this standard was not actually applied when determining whether to grant Mr. Rodriguez's petition. For that reason the order denying the petition was ruled against. This ruling emphasizes the importance of applying and adhering to the proper standards, as it relates to review.