Terminating the Employment Relationship

Puckett v. Board of Retirement of the County of Orange 237 A firefighter for the county applied for disability retirement with the county retirement board. While his application was pending, he worked at a lower- paying position with the county as a mechanic’s helper. The board approved his application, but set the effective date for commencement of his retirement payments as the date after which the board approved the application, a date two years after he filed the application. The board reasoned that he was not entitled to disability retirement allowance for the period in which he worked as a mechanic’s helper. The employee filed a petition for writ of mandate to compel payment of a disability allowance during the period of his alternative employment. The court of appeal agreed that the firefighter was entitled to a disability allowance starting from his last date in paid status as a firefighter. However, the amount of the allowance could not be more than the difference between his compensation at his alternative position and the higher salary at his former position. Katosh v. Sonoma County Employees’ Retirement Assn. 238 An employee, as a result of disability, stopped working on June 26, 2000. She filed an application for service-connected disability retirement on February 6, 2002. Because her health insurance lapsed during her time off from work, and in order to re-activate her enrollment, she returned to “in pay status” with the county for a two week period ending October 27, 2004 using a combination of sick and vacation leave in order to re-enroll her in the health insurance. The board ultimately approved that application, but set the effective date of retirement as October 28, 2004, the day after her last day on the payroll. The employee filed a petition for writ of mandate in superior court to compel an earlier retirement date. The trial court denied the petition and the court of appeal affirmed. The court noted that Government Code section 31724 requires that the effective date of a disability allowance may not be earlier than the day following the last day for which the employee received “regular compensation.” The court held that “regular compensation” included sick leave and vacation leave when taken by the employee as time off. While ’37 Act permits, but does not require, a member to use all accumulated sick leave prior to a disability retirement, if the member chooses to use sick leave, it acts to delay the effective date of retirement because it is “regular compensation.” Mahler v. City of Buena Park 239 A city fire captain suffered an industrial accident rendering him permanently unable to perform the duties of his position. He applied for PERS disability retirement and sought to exhaust 4,000 hours of accumulated sick leave prior to the effective date of retirement. The city refused to allow him to exhaust the 4,000 hours of accumulated sick leave. It based its decision upon a sick leave policy that provided that employees who continue to be disabled after exhaustion of 4850 leave may use a proportionate amount of accumulated sick leave to supplement temporary disability indemnity in order to equate to full

Terminating the Employment Relationship ©2019 (s) Liebert Cassidy Whitmore 68