Las Vegas POA

Disability Retirement Precludes Civil Service Appeal Of Discharge

Written on 12/10/2020
Will Aitchison

Martin Deiro began working for the Los Angeles County Sheriff’s Department in 1997 and was injured on duty in May 2012. He continued to work though October 2013, after which he had the first of two surgeries for the injury. He could not return to work after his first surgery and remained on leave.

On May 1, 2015, Deiro applied to the Los Angeles County Employees Retirement Association (LACERA) for a service-connected disability retirement. The Department did not oppose his application. Three months later, the Department terminated Deiro in connection with conduct the Department alleged brought discredit to Deiro and to the Department. Deiro appealed to the Civil Service Commission.

In January 2016, while the disciplinary proceedings were pending, LACERA’s Board of Retirement granted Deiro’s application for a service-connected disability retirement, with the effective date to be determined. Despite Deiro having retired, the Department and Deiro participated in hearings on Deiro’s appeal of his discharge. A hearing officer recommended reducing the termination to a 30-day suspension.

Before the Commission could take action on the hearing officer’s recommendations, the Department filed a motion to dismiss the appeal on the ground Deiro had retired and therefore the Commission lacked jurisdiction over any appeal relating to his employment. When the Commission granted the Department’s motion to dismiss Deiro’s appeal, the matter wound up in the California Court of Appeals. The Court upheld the Commission’s decision based upon Rule 2.24 of the County’s Civil Service Rules, which defines an employee as “any person holding a position in the classified service of the County.” As only employees have access to civil service appeals, the definition was critical.

The Court noted that “several cases have held that an employee who properly appealed his discharge or other discipline, but then resigned, retired, or died, was no longer an employee, and the Commission no longer had jurisdiction to continue to adjudicate his appeal. Deiro argues that when an employee applies for disability retirement, is subsequently discharged, timely appeals and then is granted a disability retirement, the Commission retains jurisdiction over his civil service appeal, no matter the circumstances. According to Deiro, this is because permanent incapacity in not voluntary and is determined by the LACERA retirement board without regard to the employee’s intention. And because LACERA has the authority to reevaluate the incapacity of a disability retiree under age 55, a disability retiree’s future employment status remains at issue and may change in the future.

“We disagree with Deiro’s conclusion. Deiro’s future status as an employee is not at issue after he has retired. In the ordinary case, this is just as true of disability retirees as it is of retirees who choose to retire after years of service. Their future status as employees is not an issue, unless they or their former employer choose to place it in issue. The Commission no longer has the authority to restore a disability retiree to employment; only LACERA can determine that a retiree is not, in fact, permanently incapacitated. As in any other retirement case, only a wage claim remains, over which the charter gives the Commission no authority.

“Deiro insists that LACERA has a duty to reevaluate disability retirees and so he ‘may face reinstatement in the future.’ This is complete speculation. LACERA has the authority to reevaluate Deiro. But there is not the slightest intimation in this record that he or the Department would seek such a reevaluation from LACERA. And unless they do, there is nothing the Commission can do to restore Deiro to employment.”

Deiro v. Los Angeles County Civil Service Commission, 2020 WL 6336143 (Cal. Ct. App. 2020).

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