City & County of San Francisco v. Callanan

Opinion

This appeal concerns the validity of legislation enacted by the Board of Supervisors of the City of San Francisco authorizing the payment of benefits to the surviving dependents of an assassinated elected public official. Our analysis of the relevant charter provisions compels a conclusion that the action of the board is expressly prohibited under the terms of the charter. Accordingly, we determine the ordinance to be void and unenforceable.

On November 27, 1978, Mayor George Moscone and Supervisor Harvey Milk were assassinated. The mayor was survived by his widow and minor children. Supervisor Milk died without any surviving dependents. On April 16, 1979, the board adopted ordinance No. 175-79, entitled “Assassination Survivorship Fund.” (S.F. Admin. Code, § 16.600 et seq.) The ordinance establishes a special fund designating the city treasurer as trustee, from which periodic sums are to be drawn by warrants of the city controller payable to the eligible survivors of the designated elected public official killed by assassination. The ordinance is retroactive to assassinations which occur after November 15, 1978.

Both the city treasurer and controller challenge the validity of the ordinance and refuse to perform the acts required under the ordinance. The city acting through the board petitioned the superior court for a writ of mandate to compel performance of the required duties. Following a brief trial, the court issued its statement of decision denying the petition, concluding that the city charter expressly limited the power of the board to enact an ordinance dealing with pension, retirement or death benefits or other benefits of employment.

On appeal, the city structures a creative argument based upon findings of the detrimental effect of the risks of assassination upon elected officials

In DeYoung v. City of San Diego (1983) 147 Cal.App.3d 11 [ 194 Cal.Rptr. 722 ], the court considered a charter provision which prohibited sales of city land without voter ratification. The charter allowed leases of city land with approval of the city council for leases in excess of one year but prohibited leases for a term greater than fifteen years. Applying the rules of charter construction derived from City of Grass Valley and kindred cases, the court determined that the express restriction on the city’s power to sell public lands did not result in an implied restriction on the city’s power to lease such lands beyond 15 years, at least where approved by the city council and ratified by the voters. (Id., at p. 19)

Here, however, the charter provision flatly declares that the board has “no power to provide any benefits of employment” except as therein provided or by charter amendment. We understand City’s argument to be that the ordinance does not provide a benefit of employment but merely establishes a security measure no different in effect than authorizing a security force to protect elected officials against the risks of assassination. Our understanding of the unusual argument, however, does not include acceptance of its tenuous logic.

The terms “benefits of employment” are not defined in the charter except for the brief comment in section 8.407 which declares that benefits of employment are often referred to as “fringe benefits.” A conventional definition of the colloquial phrase generally means “an employment benefit (as a pension, a paid holiday, or health insurance) granted by an employer that involves a money cost without affecting basic wage rates.” (Webster’s Third New International Dictionary (1961) p. 912.) In Trinity Services, Inc. v. Marshall (D.C.Cir. 1978) 593 F.2d 1250 , the court examined a variety of fringe benefits mandated in federal projects under the Federal Service Contract Act ( 41 U.S.C. § 351 (a)(2)) and distilled the following common characteristics: “[That is,] to provide the benefit, the employer must make a payment to the employee (or to a fund maintained in the employee’s behalf) for the present or future use of the employee (or his beneficiary), allow the employee to accrue some form of deferred compensation (such as vacation time), or incur the risk of granting the benefit to the employee (or

Unquestionably, the allowance provided under the special ordinance requires the city employer to incur a risk of bestowing future benefits on a designated class of beneficiaries within the generally understood meaning and definition of a “fringe benefit.” Other provisions of the charter dealing with collateral benefits of employment fortify that interpretation: death allowances for fire and police personnel are treated as employment benefits under the provisions of the retirement plan chapter of the charter; and death benefits payable upon the death of other employees from any cause are similarly found in that chapter.

Seizing upon the introductory language of section 8.407 which refers to generally prevailing wage rates “for those employees covered by section 8.401,” the city then argues that section 8.407 is limited to “employees” as distinguished from “officers” of the city. We disagree. Section 8.401 unequivocally states that it applies to all officers and employees. Moreover, the restriction imposed on the powers of the board under section 8.407 relates not to employees or officers, but to “any benefits.” To submit to the city’s interpretation of the charter would result illogically in a definition of generally prevailing wage rates confined to “employees” alone while excluding “officers” who are nonetheless expressly subject to the salary standardization provisions of section 8.401. There is no showing on the record before us to indicate that the city has ever applied a different definition of salary and wage rates for its officers. Thus, the conclusion is inescapable that the restrictive language contained in section 8.407 applies uniformly to all benefits of employment of both officers and employees.

Finally, the city contends that the benefits provided by the Assassination Survivorship Fund are intrinsically different from pension or retirement benefits because of the absence of any required linkage either with service longevity or salary rank at the time of death. While the elected official cannot designate the intended beneficiary of the death allowance (as in the case of traditional retirement plans), such distinction—at most—merely removes the benefits provided from classification as deferred compensation. (See Kern v. City of Long Beach (1947) 29 Cal.2d 848 , 852 [ 179 P.2d 799 ].) It does not, however, remove such benefits from the inclusive category of “benefits of employment” which can only be altered by a charter amendment approved by the electorate. (San Francisco Charter, § 8.407.)

In summary, we find it difficult to contemplate a more explicit restriction on the power of the board to provide for employment benefits than that so lucidly expressed in section 8.407. The seam in the city’s argument unravels

In view of our determination, it is unnecessary to discuss other arguments relating to the validity of the ordinance.

Judgment affirmed.

Elkington, J., and Holmdahl, J., concurred.