Once CalPERS Determined That Industrially-Retired Peace Officer Was Eligible for Reinstatement, DOJ Had Mandatory Duty to Reinstate

The California Department of Justice (DOJ) employed Angelita Resendez as a Special Agent Supervisor. In December 2008, Resendez received an industrial disability retirement for a spine condition. In September 2009, Resendez applied to the California Public Employees' Retirement System (CalPERS) for reinstatement to a peace officer position. After Resendez underwent an orthopedic evaluation, CalPERS informed her that she was eligible for reinstatement.

In March 2010, the DOJ informed Resendez that it would employ her if she completed medical and psychological evaluations and a background investigation. Resendez rejected the offer. The DOJ appealed CalPERS' decision to reinstate Resendez, but CalPERS denied the appeal. The DOJ filed a petition for writ of administrative mandamus, and Resendez filed a petition arguing that she was entitled to back pay as of February 25, 2010, the date CalPERS granted her reinstatement request. The trial court denied the DOJ's petition and granted Resendez's petition. The DOJ appealed, but the Court of Appeal affirmed.

Certain employees, including state peace officers, who are "incapacitated for the performance of duty as a result of an industrial disability" are eligible for special disability retirement benefits. State safety members who receive disability retirement can apply for reinstatement when they are no longer mentally or physically incapacitated for duty. When a member applies for reinstatement, the CalPERS Board causes the member to undergo a medical examination. Then, pursuant to Government Code section 21192, the Board must determine on the basis of the medical examination whether the member "is still incapacitated, physically or mentally, for duty in the state agency…."

Government Code section 1031 requires that all peace officers in California be "free from any physical, emotional, or mental condition that might adversely affect the exercise of the powers of a peace officer." The DOJ argued that the Board was not only required to determine whether Resendez was free of her original disabling condition, but to also determine whether Resendez was free of any conditions that could adversely affect her exercise of peace officer powers. The Court of Appeal disagreed. It held that the phrase "still incapacitated" suggests that the scope of the Board's evaluation is limited to determining whether the conditions for which disability retirement was granted continue to exist; it does not provide the Board with authority to identify new conditions.

The DOJ also argued that before Resendez could be taken off industrial disability retirement, it had to offer her reemployment. Section 21193 provides that where the retiree is a state employee and is determined to no longer be incapacitated," he or she shall be reinstated…." The Court of Appeal held that the DOJ had a mandatory duty to reemploy Resendez once CalPERS determined that she was no longer incapacitated for duty. It also held that the DOJ could not condition Resendez's reinstatement on medical and psychological evaluations or an updated background investigation. Placing conditions on her reinstatement would be contrary to the mandatory reinstatement language of section 21193. While the DOJ must ensure that its peace officers comply with the standards set forth in section 1031, any evaluations must be conducted once the officer has been reinstated. Thus, the Court of Appeal affirmed the trial court's order denying the DOJ's writ petition.

Note:

This case involved a state employee as opposed to a public safety officer employed by a local agency. The decision relies heavily upon Government Code section 21193, which states that if the employee seeking reinstatement is determined not to be incapacitated for duty, he or she "shall" be reinstated to the position held when retired for disability, or to a position in the same class. However, section 21193 has a slightly different application for local agency public safety employees who seek reinstatement. In the case of local agency public safety employees, the employer also has to offer to reinstate the employee. Thus, local agency public safety employees who seek reemployment are not necessarily automatically entitled to reinstatement. Rather, the agency has to also offer a position to a retired employee.

In addition, the case only requires reinstatement but does not address what steps the employer may take following reinstatement to determine if the peace officer meets the requirements of Government Code section 1031.

California Department of Justice v. Board of Administration of California Public Employees' Retirement System (Resendez) (2015) 194 Cal.Rptr.3d 619.