In re Retirement Cases

cash-outs by employees of unused leave upon separation from service, insurance-related payments made by the employer, and employer payments of mandatory employee retirement contributions that are paid by the employer directly to the retirement plan. The court concluded that none of these was required to be included in the formula for calculating pension benefits.

The superior court next considered the question of retroactivity, determining that the general rule of applying judicial decisions retroactively (Newman v. Emerson Radio Corp. (1989) 48 Cal.3d 973 , 978-979 [ 258 Cal.Rptr. 592 , 772 P.2d 1059 ] (Newman)) should govern here. The superior court explained: “A decision that is disapproved or overruled is considered to have misstated the law, and consequently never was the law. (Id. at [p.] 979.) This general rule applies equally to pension cases. Where retirement allowances are calculated improperly based on a good faith misapplication of the law, retroactive recalculations must be made for retirees whose claims are filed within the three-year statute of limitations. (County of Marin [Assn. of] Firefighters v. Marin County Employees Retirement Assn. (1994) 30 Cal.App.4th 1638 [ 36 Cal.Rptr.2d 736 ] [(Marin Firefighters)]); Dunham v. City of Berkeley (1970) 7 Cal.App.3d 508 [ 86 Cal.Rptr. 569 ]; Terry v. City of Berkeley (1953) 41 Cal.2d 698 [ 263 P.2d 833 ] [(Terry)]; Abbott v. City of Los Angeles (1960) 178 Cal.App.2d 204 [ 3 Cal.Rptr. 127 ] (Abbott II).) There is no reason why the same rule should not be applied here, where pensions were miscalculated based on a prior erroneous judicial construction of the law.” In the footnote, the trial court noted that the law may be different in federal cases.

The trial court also determined that considerations of fairness and public policy did not justify denial of the retroactive application of Ventura. The court stated that retirement boards may have established reasonable reliance on the former interpretation of the statute, but they did not establish “a hardship emanating from such reliance sufficient to invoke a fairness exception.” The court also concluded that the retroactive application of Ventura did not unconstitutionally impair contractual obligations. It explained that the retroactive application of Ventura did not reduce or eliminate any contractual rights of retired plan members and “[retirement boards] have not identified any contractual rights of their own that will be adversely affected by retroactive application of that decision.” Finally, the court ruled that retirement boards have the discretion to collect arrears; full arrears contributions are authorized, but not mandatory.

The trial court entered final judgments, denying those portions of plan members’ petitions for writs of mandate requesting to have additional items of remuneration calculated as part of CERL pension benefits. It issued peremptory writs of mandate commanding retirement boards “to recalculate

pensions contain both employer and employee contributions and that the level of funding be based on actuarial valuations. (§ 31450 et seq.) Under CERL, an employee’s pension “is a combination of a retirement annuity based on the employee’s accumulated contributions supplemented by a pension established with county contributions sufficient to equal a specified fraction of the employee’s ‘final compensation.’ (See, e.g., §§ 31664, 31676.1.)” (Ventura, supra, 16 Cal.4th at p. 490.) The proper administration of a CERL pension system includes a determination of what payments in addition to base pay must be included when determining an employee’s “final compensation.” (Ibid.)

When determining what payments are to be included, we use the definitions provided in CERL and resolve any ambiguity or uncertainty in favor of the pensioner, mindful that such construction must be consistent with the clear language and purpose of the statute. (Ventura, supra, 16 Cal.4th at p. 490.)

Section 31460 defines “compensation” as “the remuneration paid in cash out of county or district funds, plus any amount deducted from a member’s wages for participation in a deferred compensation plan ..., but does not include the monetary value of board, lodging, fuel, laundry, or other advantages furnished to a member.”

Under section 31461, “compensation eamable” by a member of the plan “means the average compensation as determined by the board, for the period under consideration upon the basis of the average number of days ordinarily worked by persons in the same grade or class of positions during the period, and at the same rate of pay. The computation for any absence shall be based on the compensation of the position held by [the member] at the beginning of the absence. Compensation, as defined in Section 31460, that has been deferred shall be deemed ‘compensation eamable’ when earned, rather than when paid.”

Section 31462.1 defines “final compensation” as “the average annual compensation eamable by a member during any year elected by a member at or before the time he files an application for retirement, or, if he fails to elect, during the year immediately preceding his retirement.” Section 31462 is substantially the same as section 31462.1, and differs only in that it sets the relevant time period as “during any three years elected by a member.”

These definitions were first construed and applied by the Court of Appeal in Guelfi, supra, 145 Cal.App.3d 297 . In Guelfi, two retired peace officers claimed that their final compensation should have been calculated to include their overtime, educational incentive pay, and uniform allowance. (Id. at

pp. 299-300.) The Guelfi court concluded that educational incentive pay and overtime fit the definition of “compensation,” but these items were not a mandatory part of a retiring employee’s “compensation eamable,” and therefore not part of the “final compensation” on which a pension is calculated, because not all employees in the same grade or class of position qualified for this pay. (Id. at pp. 303-307.)

Subsequently, the Supreme Court, in Ventura, supra, 16 Cal.4th 483 , considered these same definitions in CERL when a county deputy sheriffs’ association and three retirees challenged the county retirement board’s determination of “final compensation.” This determination excluded the county’s contributions to an employee’s deferred compensation plan, overtime pay, cash payments of bilingual premium pay, a uniform maintenance allowance, educational incentive pay, additional compensation for scheduled meal periods for designated employees, pay in lieu of annual leave accrual, holiday pay, a motorcycle bonus, a longevity incentive, and a field training officer bonus. (Id. at pp. 488-489.) The court pointed out that sections 31460 and 31461 were ambiguous. (Id. at p. 493.) The court stated that the method of construction is first to determine what falls into the broad definition of “compensation” under section 31460, and then determine whether it falls within the narrower category of “compensation eamable” as defined in section 31461 “and thus form[s] the basis for the calculation of ‘final compensation’ on which the pension is based pursuant to section 31462 or 31462.1.” (Ventura, supra, at pp. 493-494.)

The Ventura court explained that, under section 31460, “compensation” is remuneration not excluded by that section. (Ventura, supra, 16 Cal.4th at p. 494.) The court concluded that the Legislature did not consider county contributions to an employee’s deferred compensation plan as “compensation” as defined in section 31460. (Ventura, at p. 495.) In addition, section 31460 excludes the monetary value of an advantage provided in kind. However, the Ventura court held, when the advantages are paid in cash, and not in kind, they are not excluded. (Id. at p. 497.) The court therefore agreed with the Guelfi court that a longevity bonus and cashed-out accmed vacation were remuneration under section 31460. (Ventura, supra, at p. 497.) Further, bilingual premium pay, pay for acting as a field training officer and for motorcycle duty, and educational incentive pay also qualify as “compensation.” (Id. at pp. 497-499.) This analysis of “compensation” did not differ significantly from the one employed by the Court of Appeal in Guelfi.

The Ventura court, however, concluded that the Court of Appeal in Guelfi erred in its construction of the statute’ term “compensation eamable.” It pointed out that the holding in Guelfi was not prior precedent of the Supreme Court; the issue was therefore one of first impression for it. (Ventura, supra,

16 Cal.4th at pp. 505-506.) The court examined the predecessor statutes to sections 31460 and 31461 and the use of the terms “compensation” and “compensation eamable” in the Public Employees’ Retirement Law (PERL) (§ 20000 et seq.). (Ventura, at pp. 495-497, 501-505.) The court concluded that, in the context of CERL and PERL, “ ‘compensation earnable’ is the average pay of the individual retiring employee computed on the basis of the number of hours worked by other employees in the same class and pay rate—that is the average monthly pay, excluding overtime, received by the retiring employee for the average number of days worked in a month by the other employees in the same job classification at the same base pay level.” (Ventura, at p. 504.) The Ventura court concluded that, with the exception of overtime, all of the premiums that it had determined were remuneration must be included as “compensation earnable” and therefore included in the calculation of the employee’s pension. (Id. at pp. 504-505.)

The Supreme Court in Ventura refused to decide whether its decision applied retroactively to any other county. (Ventura, supra, 16 Cal.4th at p. 507.) As to the county before it, the court concluded: “There may be unanticipated costs to Ventura County if the pensions of the individual plaintiffs and the employees the association represents must be recalculated and adjusted upward. If so, to comply with the financial provisions of CERL (§ 31580 et seq.) and accommodate future increases, the county may have to make a supplemental appropriation and adjust the future annual appropriation for its contribution to the pension fund to cover the increase in future retiree pensions that results from inclusion of additional items of ‘compensation’ in ‘compensation eamable.’ Past experience should enable the county to anticipate the number of employees who will receive premium pay, however, and adjustments of this nature are contemplated by CERL. (See §§ 31453, 31454.) Nothing in this record suggests that the burden on the county fisc justifies either perpetuation of an erroneous constmction of the applicable statutes or denying these plaintiffs the benefit of our decision.” (Ventura, supra, at p. 507.)

A. The General Rule of Retroactivity and Standard of Review

Retirement boards and counties contend that they had diligently calculated pension benefits under CERL as set forth by the Court of Appeal in Guelfi, supra, 145 Cal.App.3d 297 . Once the Supreme Court articulated its interpretation of CERL, they attempted to implement the holding in Ventura, supra, 16 Cal.4th 483 for all current employees and for all retirees whose final compensation periods began on or after October 1, 1997 (the date the Supreme Court denied rehearing on Ventura). Plan members, however,

contend that Ventura’s holding should also be applied to those retirees whose final compensation periods fell in whole or in part prior to October 1, 1997. They contend that they are entitled to corrected calculations of their pension benefits, if not barred by the statute of limitations. (See Marin Firefighters, supra, 30 Cal.App.4th 1638 ; Dunham v. City of Berkeley, supra, 7 Cal.App.3d 508 ; Terry, supra, 41 Cal.2d 698 ; Abbott II, supra, 178 Cal.App.2d 204 .)

Retirement boards claim that “the language of the [Ventura] decision shows that the [Supreme] Court both expected and intended that the effects of the decision would be almost entirely prospective even in Ventura County—the one county that was a party in the case.” However, contrary to retirement boards’ assertions, the Supreme Court expressly declined to address the issue of retroactivity when it stated: “No other county is before us in this matter, however, and we need not decide whether this decision applies retroactively to any other county.” (Ventura, supra, 16 Cal.4th at p. 507.) Accordingly, we need to consider the application of the rule of retroactivity and judicial decisions to the facts of this case.

It is well settled that the general rule in California is that “a decision of a court of supreme jurisdiction overruling a former decision is retrospective in its operation and that the effect is not that the former decision was bad law but that it never was the law.” (County of Los Angeles v. Faus (1957) 48 Cal.2d 672 , 680-681 [ 312 P.2d 680 ] (Faus), abrogated on another issue by Evid. Code, § 822.) Counties attempt to circumscribe this rule to criminal and tort cases, but this general rule of retroactivity has been applied without regard to the area of law at issue (see Newman, supra, 48 Cal.3d at p. 995, fn. 3 (dis. opn. of Broussard, J.)). “ ' “Indeed, a legal system based on precedent has a built-in presumption of retroactivity.” [Citation.]’ ” (McManigal v. City of Seal Beach (1985) 166 Cal.App.3d 975 , 981 [ 212 Cal.Rptr. 733 ] (McManigal).)

Our Supreme Court has “recognized exceptions to [the general rule of retroactivity] when considerations of fairness and public policy preclude full retroactivity. [Citation.] For example, where a constitutional provision or statute has received a given construction by a court of last resort, and contracts have been made or property rights acquired in accordance with the prior decision, neither will the contracts be invalidated nor will vested rights be impaired by applying the new rule retroactively.” (Peterson v. Superior Court (1982) 31 Cal.3d 147 , 151-152 [ 181 Cal.Rptr. 784 , 642 P.2d 1305 ] (Peterson), citing Faus, supra, 48 Cal.2d at p. 681; see also Moradi-Shalal v. Fireman’s Fund Insurance Companies (1988) 46 Cal.3d 287 , 305 [ 250 Cal.Rptr. 116 , 758 P.2d 58 ] (Moradi-Shalal).) Fairness and public policy may also require an exception when “retroactive application of a decision

would raise substantial concerns about the effects of the new rule on the general administration of justice, or would unfairly undermine the reasonable reliance of parties on the previously existing state of the law. In other words, courts have looked to the ‘hardships’ imposed on parties by full retroactivity, permitting an exception only when the circumstances of a case draw it apart from the usual run of cases.” (Newman, supra, 48 Cal.3d at p. 983.)

Counties, citing Dillon v. Board of Pension Commrs. (1941) 18 Cal.2d 427 , 430 [ 116 P.2d 37 ], claim that the trial court erroneously shifted the burden of proof regarding the retroactive application of Ventura to them. The Dillon court states that, when the board denies the plaintiff’s right to a pension, the plaintiff may bring a mandamus action to establish as a matter of law that he or she is entitled to the status of a pensioner. (Dillon, supra, at p. 430.) That is clearly not the issue here. No one denies that plan members are entitled to a pension. Rather, the question is whether the decision in Ventura has retroactive effect. Since counties and retirement boards are arguing that an exception to the general rule of retroactivity applies to them, they have the burden of proof. (See, e.g., Estate of Propst (1990) 50 Cal.3d 448 , 465 [ 268 Cal.Rptr. 114 , 788 P.2d 628 ] (Propst) [prior to deciding whether judicial decision should be applied retroactively to each person, “the cause must be remanded to afford respondent an opportunity to present .. .proof’ of hardship or detrimental reliance].)

We review the trial court’s ruling that neither fairness nor public policy warranted an exception to the retroactivity rule under the abuse of discretion standard. A trial court, “acting as a court of equity, has discretion to fix a more realistic starting date for the payment of retroactive benefits to class members.” (Green v. Obledo (1981) 29 Cal.3d 126 , 142 [ 172 Cal.Rptr. 206 , 624 P.2d 256 ].) To the extent that counties and retirement boards contend the court erred in its application of the law, we apply the de novo standard of review (see, e.g., Burden v. Snowden (1992) 2 Cal.4th 556 , 562 [ 7 Cal.Rptr.2d 531 , 828 P.2d 672 ]). Those findings of fact that support the trial court’s ruling, we review for substantial evidence. (Scott v. Common Council (1996) 44 Cal.App.4th 684 , 689 [ 52 Cal.Rptr.2d 161 ].)

Preliminarily, we must first consider what is meant by a retroactive application. Counties and retirement boards contend that a prospective application of Ventura would permit them not to modify either the future retirement benefits or the back payments to all plan members who had all or part of their “final compensation” calculated prior to October 1, 1997. OCERS, in its amicus curiae, brief, maintains that, even if Ventura is limited to a prospective application, retirement boards must recalculate the future retirement benefits for plan members who had all or part of their “final compensation” calculated prior to October 1, 1997. OCERS asserts that under California law a governmental entity has a mandatory duty to make certain

Arizona Governing Committee v. Norris (1983) 463 U.S. 1073 , 1092 [ 77 L.Ed.2d 1236 , 103 S.Ct. 3492 ] (Norris); Retired Public Employees’ Ass’n. v. State of Cal. (9th Cir. 1986) 799 F.2d 511 , 515; Probe v. State Teachers’ Retirement System (9th Cir. 1986) 780 F.2d 776 (Probe).) These federal courts have defined retroactivity in the manner advocated by counties and retirement boards (but see our discussion of the relevance of federal cases in pt. II.E.). They have concluded that, because these future annuity payments were funded by past contributions, any court judgment affecting these payments “is fundamentally retroactive in nature.” (Probe, supra, 780 F.2d at p. 782.)

Since we are holding that the Ventura decision should be applied retroactively, we need not settle the question whether future benefits to people who retired before October 1, 1997, is a retroactive or prospective application of Ventura. In arriving at our holding, we review the following arguments by retirement boards and counties. Retroactive application is inappropriate because: (1) judicial decisions can have no retroactive effect when none of the parties was involved in the Ventura decision or had a lawsuit pending at the time; (2) it would unfairly and unconstitutionally impair vested contract rights; (3) it would be unfair as the parties detrimentally relied on the holding in Guelfi and it would not promote public policy concerns; and (4) it would contravene federal case law.

B. Considerations of Retroactive Effect and Nonparties to Ventura

Retirement boards contend that the trial court erred in its retroactive application of the holding in Ventura to plan members, counties and retirement boards in this coordinated action because none of them was a party to the lawsuit or had similar lawsuits pending when Ventura became final. Moreover, Ventura was not a class action. They assert that the Supreme Court mandated retroactive application of its decision only to the parties before it.

In support of their argument, retirement boards cite Bartman v. Estate of Bartman (1978) 83 Cal.App.3d 780 [ 148 Cal.Rptr. 207 ], and Newman, supra, 48 Cal.3d 973 . They claim that judicial retroactivity “ ‘governs events occurring prior to the date of decision, when such events are at issue in timely filed actions’ [Citation.]” (Bartman, supra, 83 Cal.App.3d at pp. 785-786.) By quoting this language in Bartman, they imply that the Bartman court held that judicial decisions only have retroactive effect on those parties who have a pending lawsuit on the same issue. However, a complete reading of the Bartman opinion does not support the conclusion urged by retirement boards. The Bartman court was concerned with the effect of a retroactive application of a judicial decision on cases not yet pending when the statute of limitations would make such claims untimely. (Id. at p. 786.) Thus, it did not hold that

[ 179 P.2d 799 ] (Kern) [pension rights involve “obligations which are protected by the contract clause of the Constitution”].) They argue that counties and plan members entered into employment arrangements based on pre Ventura rules of law. A new decision will not be applied “to impair contracts made or property rights acquired in accordance with the prior rule.” (Propst, supra, 50 Cal.3d at p. 462; see also Houghton v. City of Long Beach (1958) 164 Cal.App.2d 298 , 311 [ 330 P.2d 918 ]; Abbott v. City of Los Angeles (1958) 50 Cal.2d 438 , 455 [ 326 P.2d 484 ] (Abbott I).) “ ‘ “[W]here a ... statute has received a given construction by a court of last resort, and contracts have been made or property rights acquired in accordance with the prior decision, neither will the contracts be invalidated nor will vested rights be impaired by applying the new rule retroactively. [Citation.]” [Citation.]’ [Citation.]” (Newman, supra, 48 Cal.3d at p. 982; see also Faus, supra, 48 Cal.2d at pp. 680-681.) These vested rights are defined by the benefits and law in place when an employee is rendering services, not by changes that occur after retirement. (Betts v. Board of Administration (1978) 21 Cal.3d 859 , 866 [ 148 Cal.Rptr. 158 , 582 P.2d 614 ].)

It is true that “California is firmly committed to the proposition that [public employees’ retirement rights] are contractual; that they are ‘vested’ in the sense that the lawmakers’ power to alter them after they have been earned is quite limited.” (Lyon v. Flournoy (1969) 271 Cal.App.2d 774 , 779 [ 76 Cal.Rptr. 869 ].) “ ‘[T]he right to a pension becomes a vested one upon acceptance of employment by an applicant.’ ” (Kern, supra, 29 Cal.2d at p. 852.) Although “upon acceptance of public employment [an employee acquires] a vested right to a pension based on the system then in effect” (Miller v. State of California (1977) 18 Cal.3d 808 , 817 [ 135 Cal.Rptr. 386 , 557 P.2d 970 ]), the “ ‘amount, terms and conditions of the benefits may be altered’ ” (Lyon v. Flournoy, supra, at p. 780). “The contractual basis of a pension right is the exchange of an employee’s services for the pension right offered by the statute.” (Claypool v. Wilson (1992) 4 Cal.App.4th 646 , 662 [ 6 Cal.Rptr.2d 77 ].)

Counties maintain that they entered into employment arrangements with plan members and retirement boards administered their pension plans under pre-Ventura rules of law. Indeed, the trial court specifically found that retirement boards and counties relied on the law as stated in Guelfi. “ ‘The parties are presumed to have had existing law in mind when they executed their agreement....’ [Citation.] ‘Existing law’ includes decisions of the appellate courts interpreting statutes. [Citations.]” (California Assn, of Highway Patrolmen v. Department of Personnel Admin. (1986)

185 Cal.App.3d 352 , 364 [ 229 Cal.Rptr. 729 ] (CAHP).) They contend that Allen v. Board of Administration (1983) 34 Cal.3d 114 [ 192 Cal.Rptr. 762 , 665 P.2d 534 ] (Allen) “cements the point” that retroactive relief is improper.

In Allen, retired legislators or their surviving spouses maintained that they were entitled to the benefit of legislation passed after their retirement even though the legislation stated that the increased salaries could not be used as a basis for calculating retirement benefits for any legislators who retired prior to the amendment. (Allen, supra, 34 Cal.3d at pp. 117-118.) The retirees argued that the subsequent legislation impaired their contractual right to a pension based on a percentage of current comparative salaries. (Ibid.) The court held that there was no unconstitutional impairment because this was an unforeseen change in the law and the legislators could not have had a realistic expectation of such increases when they were legislators. (Id. at pp. 124-125.) Further, the court reasoned, “a fiscal consideration provides additional support for rejection of [retirees’] claim.... [][] It thus becomes apparent that payment to [retirees] of inflated retirement allowances ... not only would give to them a bonanza far outstripping any reasonable expectation for cost-of-living increases ... but also would afford them pensions dwarfing their relatively modest contributions to the [retirement system].” (Id. at p. 125.)

Similarly here, counties argue, plan members are seeking to alter their pension contracts and obtain a windfall by claiming an entitlement to an increased pension based upon a change in the law after they retired. Counties maintain that it does not matter that Allen considered a statutory change while the situation here involves a judicial change in the law.

The question in Allen, as well as in United Firefighters of Los Angeles City v. City of Los Angeles (1989) 210 Cal.App.3d 1095 [ 259 Cal.Rptr. 65 ], which counties cite in a footnote, was whether the plan members’ vested pension rights could be modified. Modifications of vested pension rights, to avoid violating the contract clause, “must be reasonable, must bear a material relation to the theory and successful operation of a pension system, and, when resulting in disadvantage to employees, must be accompanied by comparable new advantages.” (Allen, supra, 34 Cal.3d at p. 120.) Here, there was no modification of plan members’ vested pension rights; there was a correction to an erroneous construction of the statute after the plan members retired.

Although counties vigorously argue to the contrary, there was no change in the law and therefore there was no change to a plan member’s vested right. Rather, counties agreed to implement a pension plan under CERL. During the relevant time period, the statutes remained the same, but our Supreme Court

mealtimes because of numerous restrictions on the officers’ freedom during these times.” (CAHP, supra, at p. 357, citing Madera Police Officers Assn. v. City of Madera (1984) 36 Cal.3d 403 , 413 [ 204 Cal.Rptr. 422 , 682 P.2d 1087 ] (Madera).)

Following the Supreme Court’s ruling in Madera, the highway patrolmen in CAHP sued to have their lunchtime considered as overtime. (CAHP, supra, 185 Cal.App.3d 352 .) The reviewing court noted that the officers derived whatever rights they had from the MOU, and their right to overtime “must be located in the MOU.” (Id. at pp. 358, 361.) The MOU unambiguously denied them compensation for anything other than “ordered overtime” and, at the time of the contract, the parties did not intend or interpret the lunch period as “ordered overtime.” (Id. at pp. 358-362.) The CAHP court held that the Supreme Court’s Madera decision had no bearing on the interpretation of the MOU and therefore no effect on the officers’ claim that they were owed compensation for their work during lunchtime. (CAHP, at p. 361.) It also noted that nothing in the Supreme Court decision (in Madera) indicated that the earlier Court of Appeal decision (in Fowler) had interpreted any statute unlawfully or against public policy. (CAHP, at p. 364.) Accordingly, the CAHP court concluded: “ ' “A subsequent decision of a higher court, in a different case, giving a different exposition to a point of law from the one declared and known, when a settlement between parties takes place, cannot have a retrospective effect and overturn such settlement.” ’ [Citations.]” (Id. at pp. 364-365.)

The CAHP court was concerned with the interpretation of a term in a contract, while we are concerned with the construction of a statute. In discerning the intent of the parties, the CAHP court looked to the prevailing definition or interpretation of “ordered overtime” at the time the parties executed the agreement. (CAHP, supra, 195 Cal.App.3d at p. 364 [“ ‘The parties are presumed to have had existing law in mind when they executed their agreement’ ”].) In contrast, here our Supreme Court did expressly overrule the earlier Court of Appeal decision and held that the earlier ruling was an unlawful construction of the statute-, thus, CAHP is unhelpful regarding the issue before us.

Rather than being concerned with the interpretation of a term in a contract, we are concerned about the effect of miscalculating a pension because of an incorrect construction of a statute. When retirement allowances have been improperly calculated, courts have held that the pensions should be recalculated and the affected plan participants should receive retroactive relief, assuming the relief is timely. (See, e.g., Marin Firefighters, supra, 30 Cal.App.4th 1638 ; Terry, supra, 41 Cal.2d 698 ; Dunham v. City of Berkeley, supra, 7 Cal.App.3d 508 ; Abbott II, supra, 178 Cal.App.2d 204 .)

Retirement boards do not have the discretion to exclude items from the calculation that they have determined meet the statutory definition of “compensation earnable.” (Marin Firefighters, supra, at p. 1646, 36 Cal.Rptr.2d 736 .) In Marin Firefighters, the Board of Retirement of the County of Marin adopted the opinion of its attorney that holiday pay was mandatorily includable as “final compensation” in determining pensions. (Id. at p. 1644.) After correcting the mistake only for prospective retirees, the firefighters association sued. (Ibid.) The Court of Appeal held that the corrected calculation had to be applied retroactively. (Id. at p. 1648.)

Similarly, our Supreme Court ordered that a mistake in the calculation of a pension be corrected retroactively in Terry, supra, 41 Cal.2d 698 . In Terry, a retired mounted patrolman asserted that he was entitled to a percentage of the actual compensation then being paid to his position’s rank (a fluctuating pension), but he had been paid a percentage of the amount he had actually earned during the relevant time period immediately prior to his retirement (a fixed pension). (Id. at p. 699.) The court noted that it did not matter that four years after the patrolman retired an amendment to the statute created a right to a fixed pension. “The pension payments are in effect deferred compensation to which the pensioner becomes entitled upon the fulfillment of the terms of the contract which may not be changed to his detriment by subsequent amendment. [Citations.]” (Id. at p. 703.) Accordingly, he was entitled to have his pension calculated pursuant to the operative statute at the time of his retirement. (Ibid.)

In Dunham v. City of Berkeley, supra, 7 Cal.App.3d 508 , the court interpreted and applied the same fluctuating pension provision addressed in Terry. The court considered whether retired police officers should receive an increased pension based on salary increases associated with a different ranking classification and a new career incentive program that were created after they retired. (Dunham, supra, at p. 511.) The Court of Appeal agreed with the lower court’s ruling that the new system added salary groupings within each rank rather than creating new ranks (id. at p. 513); to deny the plaintiffs these increases would “defeat the purpose of the fluctuating pensions system in maintaining parity between retired and active employees.” (Id. at p. 516.) The Court of Appeal affirmed the judgment that ordered the city to pay past accrued and unpaid benefits. (Id. at p. 517.)

Finally, in Abbott II, supra, 178 Cal.App.2d 204 , the court considered, among other things, whether the salary calculated for pensions should include “longevity” or “merit pay.” (Id. at pp. 211-213.) The court concluded: “We think that longevity and merit pay constitute a part of the ‘salary attached to the rank or position’ formerly held by the retired or deceased members and that it was error for the court to disregard them in its computation of the

pensions to be paid and the judgments awarded.” (Id. at pp. 213-214.) The court determined that the pensions had been calculated incorrectly and that the plaintiffs were entitled to “pensions and past due pension payments reflecting longevity and merit pay.” (Id. at p. 216.)

Counties contend that none of the foregoing cases applies because in each of them the retirement board misapplied an existing law that was part of a plan member’s pension contract. In contrast, here, they argue that retirement boards did not misapply an existing law; rather, Ventura changed the law. They argue that a mistaken application of existing law is significantly different from a judicial change in the law, and they quote the following from an old Supreme Court case: “ ‘Every man is to be charged at his peril with a knowledge of the law. There is no other principle which is safe and practicable in the common intercourse of mankind; and to permit a subsequent judicial decision in any one given case on a point of law to open or annul everything that has been done in other cases of the like kind for years before under a different understanding of the law, would lead to the most mischievous consequences.’ ” (Kenyon v. Welty (1862) 20 Cal. 637 , 642.) They contend that plan members did not have any vested rights to the benefits claimed, and to undo these agreements regarding benefits because of a change in law would result in havoc, especially since these contributions were calculated on the basis of the benefits as defined by Guelfi.

As discussed ante, no change in the law occurred; CERL was not amended during the relevant time period. When quoting the particular section from Kenyon v. Welty, supra, 20 Cal. at page 642, counties fail to divulge that the court was considering whether to undo a contract that had been made according to a judicial law as articulated by the Supreme Court, because the contract was now invalid under a subsequent Supreme Court decision. (Id. at p. 641.) Another passage, not cited by the counties, clarifies that the court’s decision not to disturb the contract was on the grounds that the contract had been made on an earlier, overruled, Supreme Court decision: “To establish the doctrine that all contracts made under a condition of the law, as expounded by the Supreme Court of the State, can be set aside if the Court subsequently changes its opinions or corrects its error, would be attended with very serious evils.” (Id. at p. 642, italics added.) As already stressed, that is not the situation here. The Supreme Court had not addressed the definition of “compensation eamable” under CERL until its Ventura decision and, therefore, once the Supreme Court issued its decision in Ventura, the effect was that Guelfi never was the law. (See, e.g., Faus, supra, 48 Cal.2d at pp. 680-681.)

Judicial decisions do not establish a new rule of law for purposes of exclusion from the rule of retroactivity when the court “ ‘gave effect to a

have their “compensation eamable” and “final compensation” calculated pursuant to CERL. The calculations made for plan members may have complied with the holding in Guelfi, but they were calculated incorrectly under CERL. Guelfi misstated the law; it did not establish any law. (See, e.g., Newman, supra, 48 Cal.3d at p. 979.) Thus, the contract right is the entitlement to the pension; statutes set the contributions and “final compensation” of plan members.

Accordingly, the law is well settled: Unless one of the exceptions to the retroactivity rule applies, any error in the calculation of a pension results in the retiree’s receiving a pension based on the corrected mistake and any sums of money due on past payments. We next consider the fairness exception based on detrimental reliance and public policy.

D. Considerations of Fairness Based on Detrimental Reliance and Public Policy

Retirement boards and counties contend that the fairness exception based on detrimental reliance and public policy requires reversal of the trial court’s ruling that Ventura applies retroactively. Plan members respond that this is not a situation where the “hardships” of the case “draw it apart from the usual run of cases” (Newman, supra, 48 Cal.3d at p. 983) and of the basic rule of retroactivity.

California courts “have long recognized the potential for allowing narrow exceptions to the general rule of retroactivity when considerations of fairness and public policy are so compelling in a particular case that, on balance, they outweigh the considerations that underlie the basic rule.” (Newman, supra, 48 Cal.3d at p. 983; see also Smith v. Rae-Venter Law Group (2002) 29 Cal.4th 345 , 372-373 [ 127 Cal.Rptr.2d 516 , 58 P.3d 367 ] [reliance on prior construction of fee-shifting statute had only prospective application where party reasonably relied on earlier interpretation in weighing the potential costs of unsuccessfully appealing commissioner’s award].) “Considerations of fairness would measure the reliance on the old standards by the parties or others similarly affected, as well as ‘the ability of litigants to foresee the coming change in the law ....’ [Citation.]” (Peterson, supra, 31 Cal.3d at p. 153.) “Public policy considerations include the purpose to be served by the new rule, and the effect on the administration of justice of retroactive application.” (Ibid.)

T. Detrimental reliance

The trial court stated that retirement boards established that the contributions into the retirement systems collected from the employees and the

counties were calculated in reliance on Guelfi. The pension plans are funded on an actuarial basis and therefore determinations of contribution rates relate to determinations of those items included in a calculation of the “compensation eamable” and “final compensation.”

The trial court also found that retirement boards and counties established that they could not foresee the Supreme Court’s ruling in Ventura. Plan members dispute this finding and assert that the practice set forth in Guelfi was not that widespread. Thus, for example, the declaration of the chief executive officer for the San Mateo County Employees’ Retirement Association indicated that San Mateo County, prior to the Ventura decision, included in its pension calculations items of pay not automatically provided in a uniform amount to all employees in the same grade or class of positions, such as night shift differential pay, helicopter observer pay, desk duty pay, and investigative work pay. In addition, LACERA members argue that as early as 1993 counties and retirement boards knew that liaison counsel were litigating the validity of Guelfi. They also point out that employees successfully sued the City of Hayward and the State Public Employees Retirement System to include certain fringe benefits in the salary base from which their retirement pension allowances were computed (Rose v. City of Hayward (1981) 126 Cal.App.3d 926 [ 179 Cal.Rptr. 287 ]), and that the decision has been applied retroactively.

The record, however, supports the trial court’s finding that counties and retirement boards reasonably relied on Guelfi. No other Court of Appeal decision contradicted its holding and the Supreme Court had not granted review of Guelfi. The critical question therefore is whether their reliance on Guelfi resulted in substantial detriment or hardship.

Retirement boards and counties must establish that they have “forgone substantial benefits” in reliance (Propst, supra, 50 Cal.3d at p. 464) on the rule set forth in Guelfi. (See also Sierra Club v. San Joaquin Local Agency Formation Com. (1999) 21 Cal.4th 489 , 509 [ 87 Cal.Rptr.2d 702 , 981 P.2d 543 ] [must establish “substantial detrimental reliance” for exception to retroactivity rule].) In Propst, our Supreme Court reversed a judicially developed rule that had prohibited the unilateral severance of a joint tenancy in personal property. (Propst, at pp. 461-462.) The court noted that this rule had been unforeseeable to counsel, since the Supreme Court had earlier applied the former rule (e.g., In re Kessler (1932) 217 Cal. 32 [ 17 P.2d 117 ]) and had not indicated that it was planning to overturn it. (Propst, at pp. 463-464.) The court, however, doubted that many lay persons had detrimentally relied on the former rule, but it noted “there may be instances of persons who have incurred legal obligations or forgone substantial benefits in reasonable reliance” on the prior rule against unilateral severance. (Id. at p. 464.) It therefore remanded to permit individuals to establish detrimental reliance. (Id. at pp. 464-465.)

A review of those California cases that have refused to apply a judicial rule retroactively on the grounds of hardship indicates that this exception is generally imposed when retroactivity jeopardizes a legal right. To preserve people’s legal claims, our Supreme Court has sometimes refused to apply a decision overruling its own earlier opinion to cases already filed. (E.g., Camper v. Workers’ Comp. Appeals Bd. (1992) 3 Cal.4th 679 [ 12 Cal.Rptr.2d 101 , 836 P.2d 888 ]; Moradi-Shalal, supra, 46 Cal.3d 287 .) In particular, “[retroactive application of an unforeseeable procedural change is disfavored when such application would deprive a litigant of ‘any remedy whatsoever.’ [Citations.]” (Woods v. Young (1991) 53 Cal.3d 315 , 330 [ 279 Cal.Rptr. 613 , 807 P.2d 455 ] [interpretation of notice provision and effect on statute of limitations applied prospectively because retroactive application would bar plaintiffs’ actions regardless of merits]; see also Camper, supra, at p. 689; Smith v. Rae-Venter Law Group, supra, 29 Cal.4th at pp. 372-373.) Our Supreme Court in Moradi-Shalal limited the retroactive application of its decision that reconsidered and overruled its prior holding that an insured or third party claimant had a private cause of action against insurers who engage in unfair claims settlement practices. (Moradi-Shalal, supra, 46 Cal.3d at pp. 294, 305.) The court cautioned that it was not “implying any broad exception to the general rule of retrospectivity,” but in “the interest of fairness to the substantial number of plaintiffs who have already initiated their suits in reliance” on its previous opinion, it refused to apply the new decision to those claims filed before its overruling decision became final. (Id. at p. 305.) In contrast, here the retroactive application of Ventura would not result in the loss of any legal claims by counties or retirement boards.

Our Supreme Court has also considered financial and administrative issues when assessing a claim of hardship. In Green v. Obledo, the Supreme Court determined that the class plaintiffs were entitled to welfare benefits, but it remanded for the trial court to consider, upon the proper motion, the appropriate date for payment of retroactive welfare benefits. (Green v. Obledo, supra, 29 Cal.3d at p. 143.) The following factors were to be considered by the trial court when making its equity determination: “[A]n action by an entire class to recover past welfare benefits withheld pursuant to an invalid regulation or statute might impose, in some circumstances, a disproportionate clerical and financial burden on the governmental entity if such benefits were ordered paid for the entire period of limitations. This could occur, for example, if the regulation or statute had been in force for a number of years at the time of the judgment, if the class were particularly large, or if the potential individual recovery of each class member were small.” (Id. at p. 142; see also Smith v. Rae-Venter Law Group, supra, 29 Cal.4th at p. 373 [retroactive application would affect all pending appeals from commissioner’s decisions that relied on different definition of successful

litigant under fee-shifting statute],) Here, there was no showing that the class was particularly large or that the individual recovery for each class member was small, but see our discussion below (pt. II.D.1.a.) for any alleged fiscal impact.

In the contract context, Division Four of this court considered whether a judicial decision that a contracting party’s right to refuse consent to an assignment must be exercised in accordance with standards of commercial reasonableness and good faith should be applied retroactively. (Kreisher v. Mobil Oil Corp. (1988) 198 Cal.App.3d 389 [ 243 Cal.Rptr. 662 ] (Kreisher).) At the time the franchisor refused consent, the contract between the franchisee and franchisor gave the franchisor the express right to refuse its consent to a proposed transfer of plaintiff’s franchise and the Supreme Court had not yet issued its ruling that the franchisor could not withhold its consent in an arbitrary or unreasonable manner. (Id. at p. 395.) As a result of the refusal (and prior to the Supreme Court’s holding that the refusal could not be arbitrary or unreasonable), plaintiff filed a lawsuit against the franchisor and the jury awarded the plaintiff both compensatory and punitive damages. (Id. at p. 394.) The Kreisher court concluded that our Supreme Court’s ruling should not have retroactive application in this situation, and it explained: “As regards the fairness factor, we perceive no satisfying basis for making plaintiff the windfall beneficiary of a change he did not foresee or help bring about. Conversely, it is patently unfair to penalize Mobil for its nonconformity with standards which took effect only after it conscientiously determined the state of the law and relied upon it in reasonable good faith.” (Id. at p. 404.)

Similarly, here, counties and retirement boards contend that the retroactive application of Ventura, while it would not deprive anyone of any legal rights, would be unfair because it would have a negative economic impact on the system, would result in a windfall for retirees who expected their pensions to be based on the rule in Guelfi, and would be unfair to current and future taxpayers who would have to pay for the added liabilities. We review each of these complaints.

a. Adverse fiscal impact

Retirement boards and counties assert the trial court found that if Ventura were applied retroactively, five counties would incur a total of over $500 million in unfunded liabilities. (Orange County would incur $211 million; L.A. County would incur $190 million; Ventura County, which is not a party to these appeals, would incur $30 to $40 million; and Stanislaus County would incur $35 million. The fifth county, Kern, is not a party to these consolidated appeals and the record does not disclose the actual amount of

system at least every three years and determine the extent to which prior assumptions must be changed.

Retirement boards maintain that unforeseen events that must be considered do not include allowing for changes in the law that will result in changes for “thousands of retirees as well as active members.” As discussed ante, there was no change in CERL; rather, calculations for pensions had been computed incorrectly because of an improper interpretation of the statute. There is no reason why this unforeseen event falls outside the statutes governing adjustments for underfunding.

A county actuary, and retirement boards’ designated expert, Ira Summer, admitted that there are “unanticipated ... blips either one way or another,” but maintained that “the blips up and the blips down should cancel each other out over the long term for all people in [the retirement] system.” Because blips occur, actuaries are equipped to address them. One approach is to actuarially smooth the blips by amortizing changes in contribution rates over a varying number of years. Another approach is to change the interest assumption rates, asset valuation methods, or mortality tables used by the retirement system. Some counties, such as Orange and Alameda Counties, have addressed the blips by issuing pension obligation bonds to pay off their unfunded actuarial accrued liabilities to the retirement systems. Finally, another method is to hold excess investment earnings of the retirement system as a reserve against future “deficiencies in interest earnings in other years, losses on investments, and other contingencies.” (§ 31592.) There is no reason why underfunding because of a misapplication of the law cannot be addressed by the “actuarial methodology” employed by the pension administrators.

Since we conclude that the trial court did not abuse its discretion in finding no hardship based on fiscal impact on the system, we now consider hardship based on “substantial inequitable results.”

b. Inequitable results

Counties and retirement boards contend that the retroactive application of the Ventura decision will result in some plan members receiving a windfall, which is unfair to other taxpayers and innocent parties.

As to the claim that retroactive application of the Ventura decision will result in a windfall to retirees who never, according to counties and retirement boards, expected their pensions to be calculated in the manner set forth in Ventura, we disagree. Plan members contracted to receive a pension as required by CERL and therefore they are entitled to the amounts properly calculated under these statutes. While it may be true that retirement boards

may not be able to collect the full amount owed by all former employees, we agree with the trial court that “the counties have made absolutely no showing that the deficiency will be significant or will have any lasting impact on the finances of the county.” In addition, counties and retirement boards are not going to be penalized; rather, as already discussed, CERL provides for flexibility and adjustments (see §§ 31453, 31454).

Counties and retirement boards complain that the retroactive collection of contributions shifts the responsibility for liabilities onto a future generation of taxpayers in violation of the public policy favoring “intergenerational equity”; they cite Board of Administration v. Wilson (1997) 52 Cal.App.4th 1109 , 1139-1140 [ 61 Cal.Rptr.2d 207 ] (Wilson) as setting forth this policy. They claim that county retirement systems operating under CERL calculate contributions and earnings to prefund the cost of members’ pensions by the members’ anticipated retirement dates. The purpose of the prefunding, according to counties and retirement boards, is to ensure benefit security for the employees and to ensure that the costs of providing them are borne by the taxpayers who are receiving the benefit of the public employees’ services rather than being shifted to future generations of taxpayers. Counties maintain that retroactively imposing on today’s taxpayers a newly created legal liability for service rendered to past generations of taxpayers violates this alleged policy of “intergenerational equity.”

Counties’ and retirement boards’ reliance upon Wilson, supra, 52 Cal.App.4th 1109 , is misplaced. First, counties and retirement boards maintain that Wilson holds that a fundamental policy underlying actuary defined pension systems is “intergenerational equity,” but all references to this term (or variations of it) in the opinion were quotes from declarations by expert actuaries. (Id. at pp. 1139-1142.) The court never stated that there was a policy of “intergenerational equity.” Second, the Wilson court was concerned with whether legislation delaying the employer’s payment of required contributions impaired the vested contractual rights of members to an actuarially sound pension system. The case said nothing about the proper methods for imposing retroactive relief and therefore it has little relevance to the issues before us.

Counties and retirement boards also rely on statements by actuary Ira Summer. Summer stated that payment of missed contributions alone would be insufficient to restore these systems to where they would have been had the contributions been collected on a timely basis because they will not be equal to lost earnings. Since they will receive the contributions later than expected, retirement boards will not have the opportunity to invest these funds. Summer explained that when contributions are invested over the working lifetime of a plan member, between 65 and 80 percent of the

payments made to that member come from investment return. Consequently, counties and retirement boards claim, county contributions by current and future taxpayers will increase unless interest is added to compensate for the lost earnings.

Further, counties assert, even if interest were collected on the arrears contributions, the systems still would not be fully restored to where they would have been. Although the contributions can be increased and collected with back interest, the opportunity to earn additional funds on the increased contributions has been irretrievably lost.

As to this latter argument, any lost opportunities are offset entirely by the retirement boards’ ability to earn excessive investment income from monies they should have paid out in pension benefits had CERL been applied properly. Indeed, in City of Oakland, the city complained that the retroactive reclassification of certain employees would cause unexpected liabilities. (City of Oakland, supra, 95 Cal.App.4th 29 .) The court explained: “[Reclassifications generally result in increased liability on the part of the employer, who presumably had the use of money that should have been funding the correct retirement benefits all along. While the reclassification decision here will apparently result in an unanticipated financial liability on the City’s part, the City has had the use of money it should have been expending towards the retirement system, and we see nothing in the applicable legislation which cuts off the City’s liability therefor.” (Id at pp. 54-55.)

Further, retirement boards and counties have received a significant windfall because the three-year statute of limitations (Code Civ. Proc., § 338, subd. (a)) will relieve them of the obligation to pay a significant portion of the benefits owed under the statute to some of the retirees. Permitting them to increase their windfall by applying the Ventura decision on only a prospective basis would be unfair to those people who retired prior to October 1, 1997, since they also had a vested interest in having their pensions calculated as mandated by CERL.

Finally, retirement boards and counties assert that retroactive application will place an unfair hardship on innocent plan members. The trial court authorized the retirement boards to collect arrears contributions and interest from the counties and the parties bringing this lawsuit. If the retirement boards implemented a full retroactive recalculation of compensation eamable, they could collect arrearages on past contributions from these retirees’ first day of employment. (See §§ 31622, 31639.3.) Even for those retirees who had premium pay items in their final compensation period, the statute of limitations permits payment to them for only the three years prior to the filing

retroactive application.” (Peterson, supra, 31 Cal.3d at p. 153.) Counties assert that applying Ventura retroactively will result in more litigation. They claim: “[A]ny decision to apply Ventura retroactively threatens to add tens of thousands of retirees to the administrative and judicial system—each with his or her own unique burden of proof. Moreover, this quagmire only will be thickened by the inevitable fact that the Counties will not have complete records to assist many of these retirees in meeting their burden.”

We agree with plan members that the assertion that there will be more litigation is speculative. Further, and more significantly, courts concerned with the administration of justice have focused on the effect of the ruling on pending cases. (See, e.g., Propst, supra, 50 Cal.3d at p. 463, fn. 4 [reviewing court concluded there was no indication of any substantial number of pending cases involving issue of unilateral severance of joint tenancy in personal property and therefore “no effect on the administration of justice that might lead us to withhold retroactive application of our present decision”]; Woods v. Young, supra, 53 Cal.3d at pp. 330-331; Moradi-Shalal, supra, 46 Cal.3d at p. 305; Newman, supra, 48 Cal.3d at p. 992 258 Cal.Rptr. 592 , 772 P.2d 1059 , fn. omitted [“we do not believe that the number of retrials required by our decision today will seriously disrupt the administration of justice”].) Thus, for example, because it was concerned about the “administration of justice,” our Supreme Court in Li v. Yellow Cab Co., supra, 13 Cal.3d 804 limited the retroactive application of its comparative negligence holding and applied this new rule only to cases where the trial had not yet begun. (Id. at p. 829.) If it had applied the Li holding retroactively to all cases, trial courts would have been compelled to retry essentially all the cases that had reached judgment but were not yet final at the time of the decision. This is because juries in these cases would not have been instructed to determine the respective negligence of the parties at trial. In contrast, the retroactive application of Ventura will not negatively impact the administration of justice by requiring courts to retry pending cases.

The administrative burden on L.A. County will be particularly acute, it maintains, because, as of 1997, there were 41,873 retired members of LACERA. Other than asserting that this will generate “some administrative burden” and that “many” of the retired members are “potential future litigants,” L.A. County provides no evidence that this will pose a serious burden. Indeed, it is unclear how difficult it is to determine whether any of these individuals are entitled to increased benefits and, if so, how many. Accordingly, L.A. County has failed to meet its burden of establishing the administration of justice exclusion.

We therefore conclude that counties and retirement boards have failed to establish that retroactive application of Ventura will cause a flood of litigation. Retroactive application of the Ventura decision “reflects a policy in favor of paying employees what they earned. That is not inherently unfair. [Citation.]” (City of Oakland, supra, 95 Cal.App.4th at p. 54.)

E. Federal Cases

Counties and retirement boards contend that retroactivity is inappropriate in the pension context and cite a number of federal cases. (E.g., Manhart, supra, 435 U.S. 702 ; Long, supra, 487 U.S. at p. 237 [“We will not adopt the premise that the appropriateness of a retroactive award turns on a particular pension fund’s current financial status, so that financially successful pension funds pay but financially insecure pension funds do not. To do so imposes a penalty for prudent management”];Norris, supra, 463 U.S. at p. 1092; Retired Public Employees’ Ass’n. v. State of Cal., supra, 799 F.2d at pp. 514-515; Probe, supra, 780 F.2d 776 .) Federal decisions, however, have limited relevance to whether our Supreme Court’s decision, which interprets a California statute, should have retroactive application. As the United States Supreme Court has explained: “The determination whether a constitutional decision of this Court is retroactive—that is, whether the decision applies to conduct or events that occurred before the date of the decision—is a matter of federal law. When questions of state law are at issue, state courts generally have the authority to determine the retroactivity of their own decisions.” (American Trucking Assns., Inc. v. Smith (1990) 496 U.S. 167 , 177 [ 110 L.Ed.2d 148 , 110 S.Ct. 2323 ].) No federally protected right is involved in this proceeding and the proper interpretation of CERL is purely a question of state law.

However, counties and retirement boards contend that many California courts have looked to federal law on the question of retroactivity, as articulated in Chevron Oil Co. v. Huson (1971) 404 U.S. 97 , 106-107 [ 30 L.Ed.2d 296 , 92 S.Ct. 349 ] (Chevron). (See, e.g., Kreisher, supra, 198 Cal.App.3d at p. 399, fn. 4; Casas v. Thompson (1986) 42 Cal.3d 131 , 140 [ 228 Cal.Rptr. 33 , 720 P.2d 921 ], overruled on another issue in In re Marriage of Mansell (1989) 217 Cal.App.3d 219 , 226 [ 265 Cal.Rptr. 227 ]; Citicorp North American, Inc. v. Franchise Tax Bd. (2000) 83 Cal.App.4th 1403 , 1423 [ 100 Cal.Rptr.2d 509 ].) In Chevron, the United States Supreme Court identified three relevant factors in determining whether to apply an overruling case retroactively: “First, the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied [citation], or by deciding an issue of first impression whose resolution was not clearly foreshadowed (Chevron, supra, at p. 106.)” The second factor considers whether in light of

the “ ‘history ... purpose and effect’ ” of the rule in question its operation will be furthered or retarded by retrospective application. The third factor weighs “the inequity imposed by retroactive application” and whether it would produce “ ‘substantial inequitable results,...“injustice or hardship”....’ [Citation.]” (Chevron, supra, at pp. 106-107.)

Some courts may have been guided by Chevron on the issue of retroactivity, but the federal cases upon which counties and retirement boards rely are a special category of cases that have considered retroactivity for federal pension cases and the implementation of Title VII (42 U.S.C. § 2000e-2(a)(1)). Thus, these cases are not simply concerned with retroactivity in the pension context, but the unique circumstances of changes in pension plans as a result of the court’s interpretation of the implementation of Title VII. In Manhart, supra, 435 U.S. 702 , the United States Supreme Court considered whether requiring female employees to make larger contributions than male employees to the pension fund violated Title VII. It determined that it did, but it gave its holding only prospective application. (Manhart at pp. 718-723.) The court noted that 50 million Americans participate in retirement plans other than Social Security and that “[d]rastic changes in the legal rules governing pension and insurance funds, like other unforeseen events, can have this effect. Consequently, the rules that apply to these funds should not be applied retroactively unless the legislature has plainly commanded that result... The [Equal Employment Opportunity Commission (EEOC)] itself has recognized that the administrators of retirement plans must be given time to adjust gradually to Title VII’s demands. Courts have also shown sensitivity to the special dangers of retroactive Title VII awards in this field.” (Id. at pp. 721-722, fn. omitted.) The court explained: “There can be no doubt that the prohibition against sex-differentiated employee contributions represents a marked departure from past practice. Although Title VII was enacted in 1964, this is apparently the first litigation challenging contribution differences based on valid actuarial tables. Retroactive liability could be devastating for a pension fund. The harm would fall in large part on innocent third parties.” (Id. at pp. 722-723, fn. omitted.) The court stated that the harms would fall on innocent third parties because, if the contributions were recovered from the pension fund, administrators of the fund would be forced to meet unchanged obligations with diminished assets. Further, if the reserve was inadequate, “either the expectations of all retired employees will be disappointed or current employees will be forced pay not only for their own future security but also for the unanticipated reduction in the contributions of past employees.” (Id. at p. 723.) All of the federal cases cited by counties and retirement boards involved Title VII pension cases and followed the ruling in Manhart. (Long, supra, 487 U.S. 223 , 237; Norris, supra, 463 U.S. at p. 1092; Retired Public Employees’ Ass’n. v. State of Cal., supra, 799 F.2d at p. 515; Probe, supra, 780 F.2d 776 .)

The Manhart case and its progeny are not especially helpful to counties and retirement boards. The Manhart court was confronted with the “[d]rastic changes in the legal rules governing pension and insurance funds” as a result of Title VII and the “devastating” effect retroactive application would have. (Manhart, supra, 435 U.S. at pp. 721-722.) The impact was obvious; the court’s ruling affected the contributions and benefits for all women. No such drastic result is implicated here. As already noted, counties and retirement boards have failed to establish “hardship” and, without such evidence, it is unclear that very many people will be affected. Not only does the Ventura decision impact only those particular employees that received a cash payment not ordinarily given to the class of employees of their rank, but the record does not establish that the resulting increase for these particular employees would be “devastating.”

In addition, another clear difference between the federal cases and the ones before us is that the United States Supreme Court stated that the EEOC contemplated the gradual implementation of Title VII by administrators of pension plans (Manhart, supra, 435 U.S. at pp. 721-722) and therefore the holding in Manhart comported with Title VII objectives. That is not the case here. Indeed, as the Ventura court detailed, the intent of the Legislature, as revealed by the statutory history of CERL and the definitions of “compensation eamable” and “final compensation” in PERL, was to always include advantages paid in cash (excluding overtime) in the calculations of “final compensation” for pensions. (Ventura, supra, 16 Cal.4th at p. 504.)

Finally, the federal cases did not consider mistakes in calculations based on an erroneous interpretation of a statute, which is the situation before us. Rather, the federal cases were concerned with correct calculations based on actuarial tables that unlawfully distinguished between men and women.

It is also unclear whether the exception to the retroactive application of judicial decisions set forth in the federal cases cited by counties and retirement boards remains valid after Harper v. Virginia Dept. of Taxation (1993) 509 U.S. 86 [ 125 L.Ed.2d 74 , 113 S.Ct. 2510 ]. The United States Supreme Court in Harper stated that it had previously held in Davis v. Michigan Dept. of Treasury (1989) 489 U.S. 803 [ 103 L.Ed.2d 891 , 109 S.Ct. 1500 ] that “a State violates the constitutional doctrine of intergovernmental tax immunity when it taxes retirement benefits paid by the Federal Government but exempts from taxation all retirement benefits paid by the State or its political subdivisions.” (Harper, supra, at p. 89 .) The Harper court noted that the Supreme Court of Virginia twice refused to apply the Davis holding retroactively, relying on the retroactivity analysis in Chevron, supra, 404 U.S. 97 . (Harper, supra, at pp. 89-90 .) Although the Supreme Court did not specifically address the question of retroactivity in pension cases, it noted

“the fundamental rule of ‘retrospective operation’ that has governed ‘[judicial decisions ... for near a thousand years’ ” and, in the civil context, the exception to the rule set forth in Chevron when the court was announcing “ ‘a new principle of law’ ” and limiting its application would avoid “ ‘ “injustice or hardship” ’ without unduly undermining the ‘purpose and effect’ of the new rule.” (Harper, supra, at pp. 94-95.) The Harper court pointed out that it had already held that judicial decisions would always apply retroactively in the criminal context (Griffith v. Kentucky (1987) 479 U.S. 314 [ 93 L.Ed.2d 649 , 107 S.Ct. 708 ]), and that it was now making clear that such a rule applied in the civil context. (Harper, supra, at pp. 95-96 .) “When this Court applies a rule of federal law to the parties before it, that rule is the controlling interpretation of federal law and must be given full retroactive effect in all cases still open on direct review and as to all events, regardless of whether such events predate or postdate our announcement of the rule. This rule extends Griffith's ban against ‘selective application of new rules.’ [Citations.] Mindful of the ‘basic norms of constitutional adjudication’ that animated our view of retroactivity in the criminal context [citation], we now prohibit the erection of selective temporal barriers to the application of federal law in noncriminal cases. In both civil and criminal cases, we can scarcely permit ‘the substantive law [to] shift and spring’ according to ‘the particular equities of [individual parties’] claims’ of actual reliance on an old rule and of harm from a retroactive application of the new rule. [Citation.] Our approach to retroactivity heeds the admonition that ‘[t]he Court has no more constitutional authority in civil cases than in criminal cases to disregard current law or to treat similarly situated litigants differently.’ [Citation.]” (Harper, supra, at p. 97 ; see also Reynoldsville Casket Co. v. Hyde (1995) 514 U.S. 749 , 752 [ 131 L.Ed.2d 820 , 115 S.Ct. 1745 ] [court retroactively applied a prior decision that the state’s tolling statute was unconstitutional, even though it resulted in dismissal of a lawsuit; court pointed out that Harper overruled Chevron “insofar as the case (selectively) permitted the prospective-only application of a new rule of law”]; Ryder v. United States (1995) 515 U.S. 177 , 184-185 [ 132 L.Ed.2d 136 , 115 S.Ct. 2031 ].)

We therefore conclude that, even presuming that the narrow exception for retroactivity created by the United States Supreme Court cases in the pension and Title VII context remains good authority, this exception has limited applicability to California law. Moreover, the equities in those federal situations differ significantly from those here. We therefore hold that the retroactive application of the Ventura decision is proper. Consequently, we need not address plan members’ argument that applying the Ventura decision only prospectively would deny them equal protection of the law.

The trial court ruled that retirement boards had the discretion to collect arrears contributions. It stated that this discretion did “not mean that the retirement boards ... must collect arrears beyond the three-year limitations period.” The court cautioned: “This decision is within the sound discretion of the retirement boards and presumably each board will exercise its discretion in a manner that is consistent with the best interests of its members. However, it is emphatically not the case, as [retirement boards’] argument at times seems to suggest, that a decision requiring the retirement boards to recalculate pension benefits correctly, in compliance with Ventura, compels the [retirement boards] to seek arrearage contributions beyond the three-year limitations period, or from retirees who receive no benefit from the retroactive application of Ventura, or at all. Arrears contributions may be authorized, but they are not mandatory, and the present record hardly demonstrates that they are necessary in any of the counties involved in this litigation.” The court in a footnote explained that it retained “jurisdiction to resolve any disputes that may arise with respect to the right to collect arrearages or to offset arrearages against other amounts payable to plan members.”

Retirement boards claim the trial court’s ruling was correct, while counties contend that the court erred in refusing to rule that arrears contributions are mandatory. Plan members argue that the court erred in giving retirement boards discretion to recover arrears contributions or interest from members not benefiting from retroactive relief. They also maintain that the court should have ruled that any claims for excessive arrears contributions are barred by each retirement board’s failure to pursue that relief within the three-year limitations period (Code Civ. Proc. § 338, subd. (d)). Both counties and plan members assert that the court did not properly apply the holdings in Barrett, supra, 189 Cal.App.3d 1593 and Marin Firefighters, supra, 30 Cal.App.4th 1638 . We review these claims of legal error under the de novo standard of review. (See, e.g., Burden v. Snowden, supra, 2 Cal.4th at p. 562.)

In Barrett, the court ruled that CERL required certain work program supervisors to be reclassified from miscellaneous members to safety members, retroactive to their initial dates of employment as work program supervisors. (Barrett, supra, 189 Cal.App.3d at pp. 1597-1599, 1609.) This reclassification entitled affected employees to earlier-retirement eligibility and greater pension benefits. (Id. at p. 1597, fn. 1.) The plaintiffs maintained that equitable considerations barred the defendants from demanding arrears contributions, but the Court of Appeal disagreed. The court concluded that the defendant retirement board had the authority under CERL to collect both arrears contributions and interest for the period in question. The court noted that the “retirement system [is] based on contributions by both employer and

employee. (Gov. Code, §§ 31453, 31453.5, 31558-31567, 31581.)” (Barrett, supra, at p. 1609.) Thus, the burden of arrears contributions falls upon the plaintiffs and the defendant county. (Ibid.) The court explained that the plaintiffs will merely have to “pay their quid pro quo. They will receive the higher pension benefits retroactively but are required, as are all other safety members, to pay retirement contributions commensurate with the formula contributions paid by all other safety members during the entire course of their employment.” (Id. at p. 1608, fn. omitted.)

In Marin Firefighters, the Court of Appeal held that the inclusion of holiday pay into final compensation had to be applied retroactively. (Marin Firefighters, supra, 30 Cal.App.4th at p. 1648.) The court stated that Barrett established that the retirement board “has the power to seek both arrears contributions and interest.” (Marin Firefighters, at p. 1650, fn. omitted.) The Marin Firefighters court then considered whether the statute of limitations limited this power, an issue not addressed by Barrett, and concluded that it did not. (Id. at p. 1650.)

There is nothing in Barrett or Marin Firefighters to support counties’ argument that the court erred in refusing to require retirement boards to collect arrears contributions. Indeed, in Barrett, the reviewing court concluded that the trial court erred when it ordered the defendant retirement board to pay all arrears contributions and applicable interest on behalf of the newly classified safety members. (Barrett, supra, 189 Cal.App.3d at pp. 1613-1614.) It stated that the court could not attempt to compel the retirement board “to exercise its discretion in a particular manner.” (Ibid.) Thus, contrary to counties’ assertions, the Barrett court did not mandate that retirement boards must collect arrears contributions, but clearly held that they had the discretion to do so.

Counties also argue that it would be unfair to them if retirement boards forego collecting arrears contributions and interest because, among other things, it would saddle counties with additional costs and treat pre-Ventura employees more favorably than active employees. These equitable arguments must fail. We cannot assess the equities of the situation because retirement boards have yet to take any action.

Plan members’ equitable arguments must similarly fail. Plan members explain why the equities in this situation differ from those in Barrett and in Marin Firefighters. We do not disagree that there are significant differences between these cases and the ones before us, but—since retirement boards have not exercised their discretion as to how they are going to fund the shortfall resulting from their mistaken interpretation of CERL—it is premature for us to consider any equitable arguments.

In addition, plan members insist that CERL does not permit retirement boards to recoup arrears contributions and interest beyond that necessary to finance that portion of retroactive benefits intended to be funded by the member, but they cite no authority for this proposition. Further, they claim that retirement boards do not have the authority to collect excessive arrears contributions, since they are barred by each retirement board’s failure to pursue that relief within the three-year limitations period (Code Civ. Proc., § 338, subd. (d) ). Plan members contend that the “most accurate and equitable way to finance the member-funded portion of the enhanced benefits resulting from granting retroactive relief would be to reduce the retroactive recovery (both for arrears pension adjustments and future pension adjustments) accordingly.”

Without addressing the details of plan members’ argument, we reject it. They are urging us to order retirement boards to act in a specific manner, and to usurp the boards’ authority. “When a statute imposes upon an administrative body discretion to act under certain circumstances, mandate will not lie to compel the exercise of such discretion in a particular manner. [Citation.]” (Barrett, supra, 189 Cal.App.3d at p. 1613.) Moreover, it is unclear that any of the issues raised by plan members will need to be addressed. Retirement boards may decide to use excess earnings of the pension system, as OCERS did, or to implement other corrective measures such as designating the shortfall as unfunded liability that the county can amortize over 30 years under sections 31453, 31453.5, 31453.6, and 31454. Thus, until each retirement board exercises its discretion to correct for its miscalculations under CERL, we cannot determine whether it has abused its discretion.

LACERA members contend that LACERA Board did not collect arrears contributions for its post -Ventura retirees and it therefore exercised its discretion not to collect any arrears contributions. They claim that retirement boards cannot treat pre-Ventura retirees disparately as that would constitute an arbitrary, and therefore unlawful, determination. This argument, too, must fail. Without knowing if LACERA Board is going to collect arrears contributions from pr e-Ventura retirees and, if it does, its reasons for doing so, we cannot assess its actions. Simply because LACERA Board funded the increased benefits to the post-Ventura retirees without collecting arrears contributions does not establish that it has the funds to avoid collecting arrears contributions for the pre-Ventura retirees. Since LACERA Board has not yet acted, we cannot determine whether it has acted arbitrarily.

We note that, although retirement boards have discretion to manage their retirement systems, this discretion is not unfettered. Article XVI, section 17, of the California Constitution states in relevant part: “[T]he retirement board of a public pension or retirement system shall have plenary authority and

the language its usual, ordinary import and according significance, if possible, to every word, phrase and sentence in pursuance of the legislative purpose. ... The words of the statute must be construed in context, keeping in mind the statutory purpose, and statutes or statutory sections relating to the same subject must be harmonized, both internally and with each other, to the extent possible.” (Dyna-Med., Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379 , 1386-1387 [ 241 Cal.Rptr. 67 , 743 P.2d 1323 ].) “ ‘Rules of statutory construction require courts to construe a statute to promote its purpose, render it reasonable, and avoid absurd consequences.’ [Citation.]” (Ford v. Gouin (1992) 3 Cal.4th 339 , 348 [ 11 Cal.Rptr.2d 30 , 834 P.2d 724 ].)

With regard to pension legislation, pension provisions shall be liberally construed and we resolve all ambiguities in favor of the pensioner. (Barrett, supra, 189 Cal.App.3d at p. 1603.) “However, this rule of liberal construction is applied for the purpose of effectuating obvious legislative intent and should not blindly be followed so as to eradicate the clear language and purpose of the statute and allow eligibility for those for whom it was obviously not intended.” (Ibid.)

To be included in the calculation of pension benefits, the court must first determine what items of remuneration fall into the broad definition of “compensation” under section 31460, and then determine whether they fall within the narrower category of “compensation eamable” as defined in section 31461 “and thus form the basis for the calculation of ‘final compensation’ on which the pension is based pursuant to section 31462 or 31462.1.” (Ventura, supra, 16 Cal.4th at pp. 493-494.) As noted earlier, section 31461 defines “[compensation eamable” as “the average compensation as determined by the board, for the period under consideration upon the basis of the average number of days ordinarily worked by persons in the same grade or class of positions during the period, and at the same rate of pay.”

A. Termination Pay

Plan members contend that termination pay should be included in the final calculation of their benefits. By termination pay, they are referring to the one-time cash payments made to plan members upon retirement for accmed but unused compensatory time, sick leave time, and vacation or holiday time. Plan members contend that there is no significant difference between annual in-service cash payments, which Ventura held to be included in pension computations, and termination payments.

The Ventura court considered the question of annual leave and concluded: “When annual leave is taken as time off, the employee simply continues to receive regular salary or wages without the necessity of performing services.

Receipt of that pay is part of the employee’s ‘remuneration’ for past services and is ‘compensation.’ When an employee elects to receive cash in lieu of accrued vacation and the wages or salary the employee would receive during the vacation period, the cash, like the vacation pay the employee would otherwise receive, is part of the employee’s ‘remuneration’ for past services. The same analysis applies to the county’s ‘longevity incentive’ since that item simply grants additional vacation hours to be accrued or cashed out to those employees with five years or more service who are covered by the resolution. Payment to longtime employees, whether in salary for vacation days on which no work is performed or in additional cash, is equivalent to increased pay that often accompanies seniority. It, too, is ‘remuneration’ and ‘compensation.’ ” (Ventura, supra, 16 Cal.4th at pp. 497-498, fn. omitted.)

Interpreting Ventura, the trial court ruled that termination pay is not “compensation” or “compensation earnable” when the employee cannot or does not elect to receive cash in lieu of the accrued time off prior to retirement. Further, “[s]ection 31462.1 defines ‘final compensation’ as ‘the average annual compensation earnable by a member during any year elected by a member at or before the time he files an application for retirement, or, if he fails to elect, during the year immediately preceding his retirement.’ (Italics added; see also § 31462.)” The court explained: “The phrase ‘any year elected by a member’ can refer only to a year of employment, as the default provision upon a failure to elect makes explicit. The plain language of Section 31462.1 thus makes clear that the final compensation period extends up to, but does not include retirement. The one time cash-out of accrued leave becomes payable ‘upon separation’ from services. (§ 19839.) Separation and retirement occur when employment has terminated, and not during the period of employment itself. For this reason, termination pay need not be included in final compensation.”

Plan members contend that prior to their retirement they earn the ability to take the time off without loss of pay and the right to cash out unused paid leave benefits at retirement. These benefits are vested fundamental rights earned by plan members for services rendered, and protected from forfeiture. (See Lab. Code, § 227.3.) Employees, according to plan members, cannot be forced to use their leave benefits prior to retirement. They contend that since the “benefits not used before retirement are automatically cashed out at separation, it logically follows that the decision to ‘cash out’ was made before retirement by virtue of the election not to use the benefits during that time frame.”

This argument is, however, unpersuasive. Whether sick leave or vacation time is included in the calculations for benefits does not bear on plan members’ vested rights to this time, nor does it in anyway compel them to

which must be understood to be between those benefits paid in cash to the employee and those that are not.” Indeed, a definite sum could be expended for board or lodging, but section 31460 expressly disallows such sums to be considered as “compensation” if the money is not paid directly to the employee. We see no reason why the payment of insurance premiums should be any different. The employee receives insurance coverage, not cash, and therefore it is not “compensation” under CERL.

Further, in making its ruling, the trial court properly relied on CERL statutes and legislative history relating to the treatment of flexible benefits to conclude that payments to third parties for insurance benefits are not required to be included in pension calculations. On June 15, 1990, the Legislature enacted section 31460.1, which read: “ ‘Compensation’ shall not include employer payments, including cash payments, made to, or on behalf of, their employees who have elected to participate in a flexible benefits program, where those payments reflect amounts that exceeds [so in chaptered copy] their employees’ salaries.” (Stats. 1990, ch. 142, § 1, p. 1191.) The Legislature, however, on May 11, 1992, repealed this statute by Senate Bill No. 193 (1991-1992 Reg. Sess.). (Stats. 1992, ch. 45, § 1, p. 158.)

Senate Bill No. 193 (1991-1992 Reg. Sess.) provided in part: “Sec. 3. The Legislature hereby finds and declares that: [f] ... [f] (3) Section 31460.1 has been erroneously construed as implicitly requiring counties maintaining retirement systems under the 1937 act to include in ‘compensation’ those flexible benefits payments until the board of supervisors elect pursuant to that section to exclude those flexible benefits payments from ‘compensation.’ [][] (4) That interpretation was not intended by the Legislature when it enacted that section. Had that been the intent of the Legislature when it enacted Assembly Bill [No.] 3146, it would have been a substantial departure from the long-standing practice of the Legislature of not intruding into the county decisionmaking process regarding compensation determinations with respect to those county retirement systems (see Sections 31460 and following, Government Code), [f] ... [f] (8) Any reversal or termination, on or after the effective date of this act, of county actions taken on the basis of misconstruction of the intent and meaning of Section 31460.1 of the Government Code would merely restrict county employees to those gains reasonably to be expected from their county retirement contracts and withhold unforeseen and windfall advantages which bear no relation to the fundamental theory and objective of the county retirement systems maintained pursuant to the County Employees Retirement Law of 1937 and would, therefore, not constitute an unconstitutional impairment of the county retirement contract [citation].” (Stats. 1992, ch. 45, § 3, pp. 158-159.)

Plan members contend that Senate Bill No. 193 (1991-1992 Reg. Sess.) did not change the language of the definitions in section 31460and 31461; it simply repealed section 31460.1. However, contrary to plan members’ assertions, the Legislature expressed its intent that it never considered inclusion of flexible benefits to be mandatory under CERL.

Plan members also argue that subsequent legislative interpretations have very little or no effect upon the construction of laws promulgated by a different Legislature. (See, e.g., Honey Springs Homeowners Assn. v. Board of Supervisors (1984) 157 Cal.App.3d 1122 , 1137 [ 203 Cal.Rptr. 886 ] (Honey Springs); Peralta Community College Dist. v. Fair Employment & Housing Com. (1990) 52 Cal.3d 40 , 52 [ 276 Cal.Rptr. 114 , 801 P.2d 357 ] [“The declaration of a later Legislature is of little weight in determining the relevant intent of the Legislature that enacted the law. [Citations.] This is especially true when, as here, such declared intent is without objective support in either the language or history of the legislation and (until recently) is contrary as well to the practice of the affected agency” (fn. omitted)]; see also People v. Martinez (1987) 188 Cal.App.3d 1254 , 1259 [ 233 Cal.Rptr. 877 ].) However, “ ‘[although a legislative expression of the intent of an earlier act is not binding upon the courts in their construction of the prior act, that expression may properly be considered together with other factors in arriving at the true legislative intent existing when the prior act was passed.’ [Citations.]” (Honey Springs, supra, at p. 1137.)

We agree that “ ‘[t]he Legislature has no authority to interpret a statute. That is a judicial task. [However], [t]he Legislature may define the meaning of statutory language by a present legislative enactment which, subject to constitutional restraints, it may deem retroactive. But it has no legislative authority simply to say what it did mean. Courts do take cognizance of such declarations where they are consistent with the original intent. “[A] subsequent expression of the Legislature as to the intent of the prior statute, although not binding on the court, may properly be used in determining the effect of a prior act. [Citations.]” [Citation.]’ ” (Honey Springs, supra, 157 Cal.App.3d at p. 1137.)

“ ‘Our task is to discern the intent of the statute from its applicable language and context.’ ” (Honey Springs, supra, 157 Cal.App.3d at p. 1137.) Although the Legislature’s comment regarding why it repealed section 31460.1 is not binding upon us, it still aids in our understanding of the legislative intent. Thus, “ ‘[w]e assume the Legislature amends a statute for a purpose, but that purpose need not necessarily be to change the law.

calculation of “compensation eamable” for pension benefits. The specific pick-ups at issue are those where the employer pays portions of the member contribution directly to the retirement fund, and nothing is deducted from the member’s salary. It is undisputed that contributions deducted from a member’s salary are included in the calculation of retirement benefits under CERL.

Section 31460 defines “compensation” as “the remuneration paid in cash ...plus any amount deducted from a member’s wages for participation in a deferred compensation plan ....” The Ventura court held that under section 31460 any sum deducted from a member’s wages for participation in a deferred compensation plan was “compensation” under the statute, but that “cannot be said of a county contribution to an employee’s deferred compensation plan.” (Ventura, supra, 16 Cal.4th at p. 494.) We agree with the trial court that this reasoning applies to retirement benefit pick-ups. When pickups are not deducted from the employee’s salary, they are not “compensation” under section 31460.

We also agree with the trial court that plan members’ attempt to characterize these pick-ups as essentially salary substitutes and therefore compensation must fail. Employer contributions to deferred compensation plans are not considered salary substitutes, and there is no more compelling reason to consider employer pick-ups as salary substitutes. As the trial court explained, “there is no language in the statute or reason in principle why the pick-up of retirement plan contributions should be treated differently.” In addition, pick-ups not deducted from a member’s salary are excluded under PERL. (§ 20636, subd. (g)(4)(E); see also Oden v. Board of Administration (1994) 23 Cal.App.4th 194 , 209 [ 28 Cal.Rptr.2d 388 ] [“Employer-paid member contributions were authorized to reduce employees’ income tax liability; they were not meant to increase retirement awards”].)

Furthermore, since the pick-ups do not involve any deduction in the employee’s salary and the employee does not receive any cash payment, an employer paid pick-up is not “compensation” under CERL. (See pt.

DISPOSITION

The judgments are affirmed. No party is awarded costs.

Haerle, Acting P. J., and Ruvolo, J., concurred.

A petition for a rehearing was denied August 11, 2003, and the petitions of all appellants for review by the Supreme Court were denied October 15, 2003. Kennard, J., and Baxter, J., did not participate therein.