Terminating the Employment Relationship

retirement over the objections of the officer. The officer requested an appeal hearing under the terms of the memorandum of understanding (“MOU”) which the County denied. The officer filed a petition for writ of mandate in superior court which the court granted and the County appealed. The Court of Appeal held that the officer was entitled to an appeal hearing both under the MOU and the Public Safety Officers Procedural Bill of Rights (“POBRA”) for the County’s “disciplinary actions” in denying the officer “wages and other benefits of her employment” when it forcibly placed her on unpaid leave.

9. I NVOLUNTARY D ISCONTINUANCE OF D ISABILITY R ETIREMENT B ENEFITS Employers of local safety members, CalPERS, or a county retirement board may require an employee who retired for disability to submit to periodic medical examinations to determine if the employee continues to be disabled, if the member is under the age for a service retirement (under the age of 55 for ’37 Act employers). 276 If the member refuses to submit to the medical examination, his or her disability retirement benefits will be discontinued until his or her withdrawal of refusal. And if the refusal continues for one year, the disability retirement shall be canceled. 277 If, based upon competent medical evidence, the employer of a local PERS safety member, CalPERS, or the county retirement board determine the employee is no longer incapacitated from the performance of his or her duties, the member’s disability retirement benefits will be canceled and the member will be reinstated to employment. If the member refuses reinstatement, the member’s retirement benefits may still be canceled. 278 Before a member’s disability retirement benefits are discontinued against the consent or desire of the member, the member is entitled to procedural due process. The member is likely not entitled to a “pre-deprivation” hearing if the member has the immediate right to reinstatement to employment upon cancellation of the disability retirement benefits. If the member is not entitled to immediate reinstatement upon cancellation, the member may be entitled to a hearing before the cancellation of benefits. 279 For PERS miscellaneous members, a disputed cancellation of disability benefits will be heard by CalPERS. For PERS local safety members, it is up to the local agency to provide a hearing. The process and procedure will be the same as for determining whether a member is qualified for a disability retirement. The determination that the member is no longer qualified is first made by the governing body or its delegate. Thereafter, if the member continues to dispute the governing body’s decision, s/he may appeal, and the appeal will be conducted according the Administrative Procedures Act. For ’37 Act members, the determination will be made by the county retirement board in much the same way as the original decision to find the member was qualified for a disability retirement. 280

Terminating the Employment Relationship ©2019 (s) Liebert Cassidy Whitmore 79