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Law enforcement officers wanting to go on disability may soon find themselves needing to check out similar jobs from Redding to Calexico — and all points between. On July 1, the California Supreme Court, over the opposition of state retirement officials, ruled that officers seeking disability retirement must prove not only that they are incapable of performing duties for their last employer, but also any similar position at other police agencies throughout the state. Justice Joyce Kennard condemned the decision for setting up “a new and unworkable test of disability.” “Our law enforcement officers deserve better,” wrote Kennard. Anaheim, Calif. police officer Steven Nolan filed for disability retirement in the early ’90s, claiming he was mentally incapacitated because of threats and intimidation he received after reporting what he felt was excessive use of force by fellow gang-unit officers. No abuse was uncovered, and Nolan was fired. He later filed a whistleblower suit and won $340,000 in damages. However, an administrative law judge denied his disability claim in a separate proceeding. An Orange County Superior Court judge reversed in Nolan’s favor, but was overturned by Santa Ana’s 4th District Court of Appeal, which said the officer had to prove he was incapacitated for police work statewide. The Supreme Court affirmed that decision, but also placed some of the burden on the employers. The majority ruling, authored by Justice Janice Rogers Brown, held that if an officer makes a prima facie showing that he is unable to work for other agencies, the employer would then have the burden of proving he is capable of working elsewhere and that there are similar positions available. The court said that means positions with “reasonably comparable pay, benefits and promotional opportunities.” The California Public Employees’ Retirement System, which administers the state’s Public Employees’ Retirement Law, had argued in court and in an amicus curiae brief that the standard adopted by the court July 1 would be unworkable. CalPERS senior staff counsel Richard Maness wrote in court papers that “uniform circumstances of employment around the state cannot be presumed.” But the court’s majority accused CalPERS of setting up “a straw man.” “Determining the usual duties of a patrol officer should not be that difficult,” Justice Brown wrote. “Every civil service employer must describe the usual duties of every position.” Justice Kennard, joined by Justice Kathryn Mickle Werdegar, chided the majority for ignoring CalPERS’ position, arguing that their fellow jurists had adopted a “generalized and speculative standard” that would “result in an administrative nightmare.” In a separate concurring and dissenting opinion, Justice Marvin Baxter agreed with the majority justices, but said they had gone too far by setting up a system that might require employers to find jobs for officers who are not incapacitated. “Unemployability is not the same thing as incapacity,” wrote Baxter. “The disability retirement system is not an unemployment insurance system.” In addition, he said, proof of general unemployability and job availability will be complicated. “Such questions,” he wrote, “threaten to become the ‘tail that wags the dog’ in proceedings to determine whether a locally, but not generally, incapacitated officer may retire for disability.” Cerritos, Calif. solo practitioner Steven Pingel, who represented Nolan, said the majority’s decision “runs counter to history, to practice, to legislative intent.” Lawrence Kirk, a partner in the Ventura, Calif. office of Grancell, Lebovitz, Stander, Barnes & Reubens, who represented the city of Anaheim, could not be reached. Maness, of CalPERS, declined comment, and Ron Cottingham, president of the Peace Officers Research Association of California, did not respond to an e-mail request for comment. The ruling is Nolan v. City of Anaheim, 04 C.D.O.S. 5935.

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