CALIFORNIA SUPREME COURT RAISES THE BAR FOR LOCAL SAFETY DISABILITY RETIREMENT By Nechelle L. Snapp and Christopher W. Miller Local agency peace officers seeking an industrial disability retirement through the California Public Employees Retirement System (CalPERS) will face a new, higher hurdle after the recent California Supreme Court decision in Nolan v. City of Anaheim (2004) 33 Cal.4th 335. Local safety members who once could qualify for the retirement by showing an inability to work for their employing agency now must prove themselves unfit for service everywhere in the state. The case was brought by an Anaheim police officer who claimed he was mentally incapacitated from performing his duties because he had been ostracized and retaliated against for whistleblowing. Three doctors, including the city’s, supported his claim; however, the City denied his application and an administrative law judge found Nolan suffered no mental incapacity. Court Sets New Standard for Disability Joined by CalPERS, Nolan appealed to the Supreme Court when the Second District Court of Appeal reversed a superior court decision granting Nolan his retirement. But the Supreme Court ruled that to qualify for disability, Nolan would not only have to show he was incapacitated from performing his duties in his former department but that he was incapacitated from performing patrol officer duties for other California law enforcement agencies. The disability retirement law is Government Code 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.” (Nolan at p. 341.) Nolan argued the phrase, “in the state service,” means an incapacity to continue functioning “in the contracting agency employing the member.” Led by Justice Janice Brown, a majority on the court disagreed with Nolan, finding that to qualify for disability retirement, Nolan also had to show “he is incapacitated from performing the usual duties of a patrol officer for other California law enforcement agencies covered by the [retirement law].” (Nolan at p. 342.) This new disability retirement test requires the peace officer applicant to show physical or mental incapacity from performing the usual duties of the job for both the current employer and for any position of similar pay, duties and promotion opportunities in any other California law enforcement agency. Once an applicant meets that test, the burden shifts to the employer to show the applicant has the mental or physical ability to keep doing a law enforcement job somewhere else in California, and that “similar positions with other California law enforcement agencies are available to him.” (Nolan at p. 345.) Dissenting Opinion Key to Future Appeals Two of the Court’s judges, Kennard and Werdegar, dissented vigorously from the majority, calling Brown’s opinion a disservice to California’s peace officers. The dissenters pointed to key language the majority had failed to quote from Government Code section 20069, which defines “state service” as “service rendered as an employee or officer . . . of a contracting agency, for compensation, and only while he or she is receiving compensation from that employer.” The dissenters read sections 20069 and 21156 together to mean a peace officer applying for disability retirement had to show he or she was disabled only from working for the officer’s last employer. Key to future disability appeals involving the Nolan standard will be the argument there are no law enforcement duties similar to those performed by the peace officer applicant. The Nolan case does not address, for example, situations where the applicant’s disability arises out of performing both police and fire services in a public safety department instead of a police department. As the dissenters noted, “the usual duties of a patrol officer vary from agency to agency.” (Nolan at p. 350 (Kennard, J., dissenting).) Nolan v. City of Anaheim has the potential to affect dramatically peace officer disability retirement applications to CalPERS, particularly those based on job-related stress. Critical to success in any such application will be a comprehensive mental or physical examination by a POST-qualified physician, psychiatrist or psychologist familiar with law enforcement duties throughout California. Christpoher Milleris a senior associate with MH&A’s Labor Department. Nechelle Snapp recently joined the Labor Department after serving for ten years as an Air Force Judge Advocate.