Paul Weirum et al vs SB County Employee’s Retirement System et al

Case Number

22CV04584

Case Type

Hearing Date / Time

Fri, 11/22/2024 - 10:00

Nature of Proceedings

Trial Confirmation; Writ of Mandate

Tentative Ruling

For the reasons set forth herein, the petition of petitioners Paul Weirum, Jon Simon, Greg Weitzman, Peter Ysebrands, David Sadecki, Sabin Perkins, Scott Jopes, Randall Harris, and David Zaniboni for issuance of a writ of mandate is denied.

Background:

Respondent Santa Barbara County Employees’ Retirement System (SBCERS) is a public employees retirement association established under the County Employees Retirement Law of 1937 (Gov. Code, § 31450 et seq.) (CERL). (Stipulated Facts, fact 1.) SBCERS is governed by a Board of Retirement (Board), which is an independent public agency responsible for administering a multiemployer, defined benefit public employee retirement system. (Ibid.)

SBCERS’s members are the active employees and retired employees of the County of Santa Barbara (County) and other participating districts. (Stipulated Facts, fact 2.) Petitioners Paul Weirum, Jon Simon, Gregg Weitzman, Peter Ysebrands, David Sadecki, Sabin Perkins, Scott Jopes, Randall Harris, and David Zaniboni are all retired members of SBCERS who were hired by the County before January 1, 2013, and retired after that date. (Ibid.) Petitioners Weirum, Simon, and Weitzman are retired employees of the County’s Sherriff’s Department (collectively, Retired Sheriff Petitioners). (Ibid.) Petitioners Ysebrands, Sadecki, Perkins, Jopes, and Zaniboni are retired employees of the County’s Fire Department (collectively, Retired Firefighter Petitioners). (Ibid.)

Each of the Petitioners to this action were union-represented employees of the County. (Stipulated Facts, fact 3.) As such, the County entered into Memoranda of Understanding (MOUs) with their respective bargaining units that outlined the terms and conditions for their employment with the County. (Ibid.) The MOUs applicable to the Retired Firefighter Petitioners were approved by the County Board of Supervisors (Supervisors) on March 17, 2009, which was subsequently extended by side letter, and on December 13, 2016, which was again subsequently extended. (Stipulated Facts, facts 4a, 4b; Administrative Record [AR], vol. 4, pp. 1441-1476, 1549-1553, 1617-1652, 1708-1785.) (Note: Hereafter, the volume of the Administrative Record will immediately follow “AR” before the page numbers. Except for volume 6, cited page numbers are to the document number listed rather than to the pdf page. For volume 6, the pdf page number is used. See the further discussion below.) The MOUs applicable to the Retired Sheriff Petitioners were approved by the Supervisors on May 20, 2008, which was subsequently extended, and on June 20, 2016. (Stipulated Facts, facts 5a, 5b; AR 4, p. 1786 to AR 5, p. 1821; AR 5, pp. 1844-1852, 1891-1895.)

Effective January 1, 2013, the California Legislature adopted the Public Employees’ Pension Reform Act (PEPRA). (Stats. 2012, ch. 297, § 2 [Assem. Bill No. 197 (2011-2012 Reg. Sess.); Stats. 2012, ch. 296, § 28 [Assem. Bill No. 340 (2011-2012 Reg. Sess.)].) As relevant to this petition, PEPRA amended the definition of “compensation earnable,” which in part determines the pension benefits of petitioners:

“ ‘Compensation earnable’ by a member 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 earnable’ when earned, rather than when paid.” (Gov. Code, § 31461, subd. (a).)

“ ‘Compensation earnable’ does not include, in any case, the following: [¶] … [¶]

            “(3)      Payments for additional services rendered outside of normal working hours, whether paid in a lump sum or otherwise.” (Gov. Code, § 31461, subd. (b)(3).)

As discussed below, petitioners argue that “standby pay,” i.e., pay for stand-by duty, petitioners earned should have been, but was not, included in computing their respective “compensation earnable.”

On July 30, 2020, the California Supreme Court issued its opinion in Alameda County Deputy Sheriff’s Association v. Alameda County Employees’ Retirement Association (2020) 9 Cal.5th 1032 (Alameda). As discussed below, the Alameda court further explained the meaning of the “compensation earnable” and the limits of county retirement boards to interpret and implement such terms.

In response to PEPRA and to the decision in Alameda, SBCERS issued its Stand-By Duty Fact Finding, dated November 10, 2020 (Stand-By Report). (AR 1, pp. 31-69.) The Stand-By Report analyzed the issues of (1) whether stand-by duty is part of the normal working hours of SBCERS membership, and (2) whether inclusion of stand-by pay in compensation earnable was resulting in members receiving pensions greater than the average of similarly situated members. Following that analysis, the Stand-By Report made five recommendations to the Board.

In March 2021, the Board adopted a resolution to implement the recommendations of the Stand-By Report (the March 2021 Resolution). (AR 1, pp. 264-266.) In April 2021, the Board applied the March 2021 Resolution to petitioners, excluding their standby pay from their pension calculations. (AR 2, pp. 381-414.)

In the first quarter of 2021, the County began negotiations with Santa Barbara County Firefighters Association, International Association of Firefighters, Local 2046 (Local 2046) about mitigating the effects of the SBCERS decision. (AR 6, pp. 131, 135, 140.) Eventually, the parties agreed to convert what had been an hourly standby pay to a flat dollar assignment pay. (AR 6, pp. 137-138, 141.) Initially, the County only wanted to make the agreement operate prospectively. (AR 6, p. 145.) Although told that there was a legal way to maintain pensionability of the standby pay back to 2013, the County agreed that it would go back only two years from the date of the tentative agreement. (AR 6, pp. 137-138, 141, 145-149, 151, 222.) On March 15, 2022, the Supervisors approved side letter agreements with Local 2046 and Santa Barbara Deputy Sheriff’s Association (DSA) to recharacterize standby pay as an allowance for special assignment pay pursuant to this agreement. (AR 6, p. 214.)

In July 2021, in response to each petitioner’s appeal, SBCERS conducted an individualized review of the removal of standby pay from their pension calculations. (AR 3, pp. 825, 861, 899, 926, 967, 998, 1036, 1063, 1101.) SBCERS staff reviewed: (1) the MOUs covering Petitioners’ employment terms during their selected final compensation period, (2) the County’s published classification scheme, (3) Petitioners’ payroll records, (4) departmental interview notes taken when formulating the 2020 Standby Report, (5) payroll statistics for Petitioners’ respective job classification; and (6) additional information and statements provided by Petitioners as part of their request for review. (AR 3, pp. 826, 862, 900, 927, 968, 999, 1037, 1064, 1102.) In reviewing this information for each petitioner, SBCERS applied the same two-part test used in the Stand-by Report that led to the March 2021 Resolution. (AR 3, pp. 828, 864, 902, 929, 970, 1001, 1039, 1066, 1104.) Based on its analysis, SBCERS staff determined that the standby pay Petitioners sought to include satisfied the first part (Part A), but failed the second party (Part B) of the two-part test. (Ibid.)

On September 22, 2021, the Board adopted its Compensation Earnable and Pensionable Compensation Policy (September 2021 Policy). (AR 2, pp. 513, 530-532.)

In November 2021, the Board considered Petitioners’ appeals of SBCERS staff’s exclusion of their standby pay from the calculation of their monthly pension benefits. (AR 3, p. 1147.) At the meeting, the Board explained that the County is responsible for setting the classification system that the Board, as plan administrator, is bound to follow and that Petitioners’ issues with the classification system should be directed to the County, not the Board. (AR 3, p. 1195.) After hearing from Petitioners and counsel, the Board found by majority vote that the standby pay for each Petitioner was not pensionable. (AR 3, pp. 1187-1189, 1215-1218 [Sadecki]; AR 3, pp. 1224-1227, 1242 [Zaniboni]; AR 3, pp. 1242, 1244, 1247-1250 [Perkins]; AR 3, pp. 1250, 1256-1257 [Ysebrands]; AR 3, pp. 1257-1259 [Jopes]; AR 3, pp. 1259-1260, 1265-1266 [Harris]; AR 3, pp. 1281-1283, 1295-1296 [Weitzman]; AR 3, pp. 1296-1297, 1300 [Simon]; AR 3, pp. 1300, 1306-1307 [Weirum].)

On November 18, 2022, Petitioners filed this petition for issuance of a traditional writ of mandate under Code of Civil Procedure section 1085. Among other relief, the petition seeks a writ of mandate ordering respondents to vacate the November 2021 decisions and to require respondents to include the on-call or standby pay paid to Petitioners as compensation earnable.

On January 12, 2023, respondents SBCERS and Board filed their answer to the petition admitting and denying allegations thereof, and asserting 10 affirmative defenses.

Pursuant to the briefing schedule ordered by the court on the stipulation of the parties, the parties have filed their respective briefs in support of and in opposition to the petition.

Analysis:

This is a petition for traditional writ of mandate rather than a petition for administrative mandate. (Petition, p. 5; see Code Civ. Proc., § 1085.)

(1)     Standards of Review

“ ‘A writ of mandate may be issued by any court ... to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station.’ (§ 1085.) ‘The writ must be issued in all cases where there is not a plain, speedy, and adequate remedy, in the ordinary course of law.’ (§ 1086.)” (Fair Education Santa Barbara v. Santa Barbara Unified School Dist. (2021) 72 Cal.App.5th 884, 893 (Fair Education).)

“The trial court’s standard of review in a mandamus proceeding depends upon the nature of the agency’s action. Pursuant to section 1085, a court may review both an agency’s ‘ministerial duties’ and ‘quasi-legislative’ actions. [Citation.] The trial court must ‘determine whether the agency had a ministerial duty capable of direct enforcement or a quasi-legislative duty entitled to a considerable degree of deference.’ [Citation.] A ministerial duty is one ‘ “that a public officer is required to perform in a prescribed manner in obedience to the mandate of legal authority and without regard to his own judgment or opinion concerning such act’s propriety or impropriety, when a given state of facts exists. Discretion, on the other hand, is the power conferred on public functionaries to act officially according to the dictates of their own judgment.” [Citations.]’ [Citation.]” (Fair Education, supra, 72 Cal.App.5th at p. 893.)

“The ‘ “appropriate degree of judicial scrutiny in any particular case is perhaps not susceptible of precise formulation, but lies somewhere along a continuum with nonreviewability at one end and independent judgment at the other.” [Citation.] Quasi-legislative administrative decisions are properly placed at that point of the continuum at which judicial review is more deferential; ministerial and informal actions do not merit such deference, and therefore lie toward the opposite end of the continuum.’ [Citation.]” (Fair Education, supra, 72 Cal.App.5th at pp. 893–894.)

“ ‘[A] court may issue a writ of mandate to compel a public agency or officer to perform a mandatory duty. [Citation.] “This type of writ petition ‘seeks to enforce a mandatory and ministerial duty to act on the part of an administrative agency or its officers.’ ” [Citation.] “ ‘[T]he writ will not lie to control discretion conferred upon a public officer or agency.’ ” ’ [Citation.] Under this theory of relief, ‘[m]andamus may issue ... to compel an official both to exercise his discretion (if he is required to do so) and to exercise it under a proper interpretation of the applicable law.’ [Citation.] ‘Often, the crucial issue when the petitioner seeks such relief is whether the act that the petitioner seeks to compel is a mandatory and ministerial duty, or, on the contrary, is a quasi-legislative and discretionary act. …’ [Citation.]” (Crestwood Behavioral Health, Inc. v. Baass (2023) 91 Cal.App.5th 1, 15.)

“The question of whether an entity’s action was ministerial or quasi-legislative is a question of statutory interpretation …. [Citation.] ‘ “ ‘We examine the “language, function and apparent purpose” ’ of the statute. [Citation.] ... ‘Even if mandatory language appears in [a] statute creating a duty, the duty is discretionary if the [public entity] must exercise significant discretion to perform the duty.’ [Citations.] Thus, in addition to examining the statutory language, we must examine the entire statutory scheme to determine whether the [entity] has discretion to perform a mandatory duty.” [Citation.]’ [Citation.]” (Fair Education, supra, 72 Cal.App.5th at p. 894.)

“[R]eview of a local entity’s legislative determination is ‘ “ ‘limited to an inquiry into whether the action was arbitrary, capricious or entirely lacking in evidentiary support. [Citation.]’ [Citation.].” ’ [Citation.] Ordinarily, ‘ “mandate will not lie to control a public agency’s discretion .... However, it will lie to correct abuses of discretion. [Citation.]” ’ [Citation.] Such deferential review of quasi-legislative activity ‘ “minimizes judicial interference in the interests of the separation of powers doctrine. [Citation.]” [Citation.]’ [Citation.]” (Fair Education, supra, 72 Cal.App.5th at pp. 894-895.) “Thus, in a challenge to a quasi-legislative decision, the petitioner has the burden of proving the agency’s decision is unreasonable or invalid as a matter of law, and there is a presumption that the agency ascertained sufficient facts to support its action. [Citation.] If the record reflects ‘ “a reasonable basis for the action of the legislative body, and if the reasonableness of the decision is fairly debatable, the legislative determination will not be disturbed.” [Citation.]’ [Citation.]” (Id. at p. 895.)

(2)     Background Law

In order to determine whether, or to what extent, SBCERS’s decision to exclude standby pay from petitioners’ pension calculations was ministerial or quasi-legislative, it is necessary to review the underlying statute and interpretive cases.

          (A)     Section 31461

Government Code section 31461 provides:

“(a)      ‘Compensation earnable’ by a member 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 earnable’ when earned, rather than when paid.

“(b)      ‘Compensation earnable’ does not include, in any case, the following:

            “(1)      Any compensation determined by the board to have been paid to enhance a member’s retirement benefit under that system. That compensation may include:

                        “(A)     Compensation that had previously been provided in kind to the member by the employer or paid directly by the employer to a third party other than the retirement system for the benefit of the member, and which was converted to and received by the member in the form of a cash payment in the final average salary period.

                        “(B)     Any one-time or ad hoc payment made to a member, but not to all similarly situated members in the member’s grade or class.

                        “(C)     Any payment that is made solely due to the termination of the member’s employment, but is received by the member while employed, except those payments that do not exceed what is earned and payable in each 12-month period during the final average salary period regardless of when reported or paid.

            “(2)      Payments for unused vacation, annual leave, personal leave, sick leave, or compensatory time off, however denominated, whether paid in a lump sum or otherwise, in an amount that exceeds that which may be earned and payable in each 12-month period during the final average salary period, regardless of when reported or paid.

            “(3)      Payments for additional services rendered outside of normal working hours, whether paid in a lump sum or otherwise.

            “(4)      Payments made at the termination of employment, except those payments that do not exceed what is earned and payable in each 12-month period during the final average salary period, regardless of when reported or paid.

“(c)      The terms of subdivision (b) are intended to be consistent with and not in conflict with the holdings in Salus v. San Diego County Employees Retirement Association (2004) 117 Cal.App.4th 734 and In re Retirement Cases (2003)110 Cal.App.4th 426.”

Petitioners argue that standby pay is for mandated and regularly scheduled hours of work. The principal point of dispute between the parties is how that determination is made in comparison to other employees. This in turn depends upon the meaning of “persons in the same grade or class of positions” and its application to petitioners. A few cases are cited by the parties in support of their respective positions, notably Ventura County Deputy Sheriffs’ Assn. v. Board of Retirement (1997) 16 Cal.4th 483 (Ventura), Stevenson v. Board of Retirement of Orange County Employees’ Retirement System (2010) 186 Cal.App.4th 498 (Stevenson), and Alameda, supra, 9 Cal.5th 1032.

          (B)     Ventura (1997)

In Ventura, the plaintiffs were three retirees and an employee association employed by Ventura County. (Ventura, supra, 16 Cal.4th at p. 487.) Ventura County paid employees, including the plaintiffs, various cash payments in addition to their ordinary wages, including uniform maintenance allowance and pay in lieu of annual leave accrual. (Id. at pp. 488-489.) When the county refused to include the cash payments in the memorandum of agreement and the resolution in computing employees’ “final compensation” upon which their pensions were based, the plaintiffs filed a petition for traditional writ of mandate by which they sought to compel recalculation of their pension rights based on a computation of “compensation,” “compensation earnable,” and “final compensation” which did include these cash payments. (Id. at p. 489.) The trial court denied the petition. (Ibid.)

On appeal, the Court of Appeal, relying in part on Guelfi v. Marin County Employees’ Retirement Assn. (1983) 145 Cal.App.3d 297 (Guelfi ), agreed with the implicit conclusion of the trial court that none of the premiums identified by the association constituted compensation that had to be included in calculating pensions, but held that the county’s matching deferred compensation payments were includable compensation. (Ventura, supra, 16 Cal.4th at p. 489.) The Court of Appeal remanded the matter to the retirement board for recalculation of the retirement benefits of the three individual plaintiffs. (Ibid.) The California Supreme Court granted review. (Ibid.)

The Ventura court explained:

“Which payments to a county employee other than base pay must be included when determining an employee’s final compensation is a question crucial to the proper administration of a CERL pension system, including the ability of the county to anticipate and meet its funding obligation.” (Ventura, supra, 16 Cal.4th at p. 490.)

“The county argues that under [section 31461] that pay which is received by all employees in the grade or class in which the retiring employee worked must be considered and that neither overtime nor any premiums paid for special skills or certification need be included in determining ‘compensation earnable.’ It relies on Guelfi where the Court of Appeal held that overtime, educational incentive pay, and a uniform allowance were excludable in computing ‘compensation earnable.’ The Guelfi court first reasoned that section 31461 would have been unnecessary if all items of ‘compensation’ received by a retiring employee not specifically excludable under section 31460 were to be included in ‘compensation earnable.’ Therefore, section 31461 contemplated something more than a calculation of the retiring employee’s average pay during the selected year. It was necessarily a narrowing definition.” (Ventura, supra, 16 Cal.4th at p. 499.)

“The Guelfi, supra, court then considered educational incentive pay, and held that, because section 31461 defines ‘compensation earnable’ as a figure ‘based on the average number of days ordinarily worked by persons in “the same grade or class of positions ..., and at the same rate of pay,” ’ educational incentive pay was not includable. [Citation.] Not all persons in the same grade or class of positions qualified for educational incentive pay and those who did qualify might not hold the same certificates. Employees who were in similarly graded or classified positions were not compensated at the same rate of pay. Therefore, ‘section 31461 does not contemplate inclusion of such compensation in its definition of “compensation earnable.” ’ [Citation.]” (Ventura, supra, 16 Cal.4th at pp. 499-500.)

“Guelfi thus held that an item of compensation must be received by all employees in the applicable grade or class of position if it is to be part of a retiring employee’s ‘compensation earnable.’ The Court of Appeal … relied on Guelfi, holding that because ‘compensation earnable’ means the ‘average ordinary pay of workers in a class; not the actual pay of any individual,’ none of the items sought to be included by plaintiffs (except contribution of matching funds to a deferred compensation plan) qualified. Were these incentives and premiums included in the computation, the average pay for all workers in the class would be unjustifiably increased.” (Ventura, supra, 16 Cal.4th at p. 500.)

“[S]ection 31461 defines ‘[c]ompensation earnable’ 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.’ The purpose of this definition, plaintiffs argue, is simply to ensure that overtime is omitted from the calculation and to ensure that if an absence resulted in an employee working fewer days than those ordinarily worked by comparable employees, the employee would nonetheless be deemed to have been compensated for the difference at the same rate attached to the position at the time the absence commenced. Nothing in the wording of section 31461 requires that the amount of pay included in ‘compensation earnable’ be only that received by all employees in the same job category. The reference to persons ‘at the same rate of pay’ simply identifies the category of employees who must be considered in determining the average number of days ordinarily worked and provides the reference for determining the compensation to be considered for a period of absence. If, as the Court of Appeal and the Guelfi court held, only those items of ‘compensation’ received uniformly by all persons in the pay grade are to be included, there would be no need to find the ‘average’ compensation of persons in that pay grade. The Court of Appeal formulation, they argue, renders the term ‘average’ surplusage. The only construction which gives meaning to the command that ‘compensation earnable’ be based on the ‘average compensation’ of persons in the pay grade is one which anticipates that the individual compensation of persons in the pay grade is not uniform so that there is something to ‘average.’ ” (Ventura, supra, 16 Cal.4th at p. 501.)

“Each of these definitions suggests that ‘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, supra, 16 Cal.4th at p. 504.)
“We agree with plaintiffs therefore that both the language and the history of section 31461 support a conclusion that the premiums in dispute are ‘compensation earnable’ within the meaning of that section and must be included when their pensions are calculated. To the extent that Guelfi is inconsistent with this conclusion, it is disapproved.” (Id. at p. 505.)
 

          (C)     Stevenson (2010)

In Stevenson, the plaintiff worked as an investigator in the narcotics bureaus of the Orange County Sheriff’s Department until he suffered a serious injury and was approved for disability retirement. (Stevenson, supra, 186 Cal.App.4th at p. 501.) In calculating the plaintiff’s pension allowance, the Orange County Employees Retirement System (OCERS) did not include the overtime compensation he received for duties performed for the narcotics bureaus in calculating his compensation earnable. (Ibid.) The plaintiff challenged the exclusion of the overtime from the calculation of his compensation earnable. (Ibid.) Following an administrative hearing, the referee concluded the plaintiff’s overtime compensation should not be included in his compensation earnable calculation because the plaintiff’s grade or class under CERL was that of the class of investigators and not of a subgroup comprised of narcotics investigators. (Ibid.) In reaching this conclusion, the referee cited section 31461, an OCERS resolution, and a MOU which did not identify narcotics investigators as a class separate from the class of investigators. (Ibid.) The referee concluded the overtime that the plaintiff might have regularly worked as part of the narcotics investigator teams should not be included in compensation earnable because other investigators, specifically investigators who did not work in the narcotics bureaus, were not required to work such overtime and did not ordinarily work such overtime. (Ibid.) The OCERS Board adopted the referee’s recommendation. (Ibid.) The plaintiff filed a petition for writ of administrative mandate under Code of Civil Procedure section 1094.5. (Id. at p. 504.) The trial court denied the petition finding that the plaintiff did not meet his burden to show the court that the administrative findings were incorrect and against the weight of evidence. (Id. at p. 505.)

On appeal in Stevenson, the court noted that the decision in Ventura did not address the issue presented in Stevenson, namely, “the proper scope of a retiree’s ‘grade or class of positions’ within the meaning of section 31461 in determining whether overtime should be considered compensation earnable.” (Stevenson, supra, 186 Cal.App.4th at p. 507.) OCERS addressed the issue by its resolution to implement the mandate of the Supreme Court in Ventura, in which OCERS adopted policies and guidelines, including: “ ‘Elements to be Included in “Compensation Earnable”. Remuneration earned and receivable in cash (under applicable MOU) to the retiring employee during the final compensation period for working the ordinary time required of other employees in the same grade/class shall be included in “compensation earnable”, including but not limited to the following items of compensation, and others substantially similar to them.’ One of the elements thereafter listed is: ‘ “Overtime” required to be worked that is ordinarily worked by others in the same grade/class/rate of pay.’ ” (Id. at pp. 507–508.)

“Neither section 31461 nor any other section of CERL defines ‘grade or class of positions’ for the purpose of determining an employee’s compensation earnable. [Citation.] The Legislature did choose the plural term ‘positions’ in section 31461 to modify ‘grade or class,’ thereby strongly suggesting that a particular grade or class is not limited to one specific type of position but might encompass more than one type of position.” (Stevenson, supra, 186 Cal.App.4th at p. 509.)

The Stevenson court identified that pursuant to Government Code section 25300, the power to determine the compensation and terms of employment for county employees to the county board of supervisors. (Stevenson, supra, 186 Cal.App.4th at p. 509.) The Stevenson court therefore reviewed the MOUs, position classifications, and related documents adopted by the board of supervisors to analyze the plaintiff’s proper grade or class of positions under section 31461. (Ibid.) The applicable MOUs identified five classes of positions within the peace office unit, none included “narcotics investigator” as a grade or class. (Id. at p. 510.) The administrative record defines the classification of “investigator” in various documents, which do not inaccurately describe the plaintiff’s former position as an investigator working for the narcotics bureaus. (Ibid.)

“This documentary evidence constitutes sufficient evidence to establish [the plaintiff’s] ‘grade or class of positions’ within the meaning of section 31461 as investigator. It is true the record contains testimonial evidence showing that [the plaintiff] specialized within the class of investigator by specifically investigating narcotics and generally shared the same types of duties and responsibilities and worked the same hours as the other investigators who identified themselves as narcotics investigators. But the Legislature did not define or otherwise intend the phrase ‘grade or class of positions’ to consist of the smallest unit of workers who have the most in common as to duties, responsibilities, and schedules. Imposing such a specialized and perhaps also transient analysis, without regard to the county’s determination of classes of positions might undermine ‘the ability of the county to anticipate and meet its funding obligation,’ which would be in contravention of legislative intent. [Citation.] The trial court’s conclusion narcotics investigators did not constitute their own class or grade within the meaning of CERL was consistent with the language and purpose of the statute. The trial court therefore did not err by denying the petition.” (Stevenson, supra, 186 Cal.App.4th at pp. 510–511.)

The Stevenson court also addressed the plaintiff’s argument that the trial court erred in stating that the MOU was dispositive of determining what was the plaintiff’s grade or class of positions under the CERL. (Stevenson, supra, 186 Cal.App.4th at p. 512.) The Stevenson court rejected this argument: “We do not construe the trial court’s comments in the statement of decision to reflect the view that the language of the MOUs was dispositive in determining grade or class of positions under CERL, or to show the trial court disregarded the rest of the record in this case. The court’s comments certainly show the court considered the classes identified in the MOUs as relevant in ruling on the petition. As discussed ante, consideration of the MOUs was proper.” (Ibid.)
 

          (D)     Alameda (2020)

Ventura and Stevenson were decided before the amendments to the CERL by the PEPRA. “In Alameda, the plaintiffs (labor unions and other labor groups) challenged the amendments to CERL (i.e., the PEPRA exclusions under § 31461, subd. (b)) on the ground that the plaintiffs possessed (1) contractual or equitable rights to receive pension benefits and (2) a constitutional right to receive pension benefits according to the law as it existed prior to PEPRA. [Citation.] The court upheld the PEPRA exclusions, concluding they did not violate contractual, equitable, or constitutional rights.” (Ventura County Employees’ Retirement Assn. v. Criminal Justice Attorneys Assn. of Ventura County (2024) 98 Cal.App.5th 1119, 1125, review granted Apr. 17, 2024, S283978.)

The Alameda court found that “PEPRA’s amendments of CERL were enacted for the constitutionally permissible purpose of conforming pension benefits more closely to the theory underlying section 31461 by closing loopholes and proscribing potentially abusive practices.” (Alameda, supra, 9 Cal.5th at p. 1094.) In reaching that conclusion, the court stated:

“Given our past decisions, we have no difficulty finding that the PEPRA amendment was enacted to maintain the integrity of the pension system and ‘bear[s] some material relation to the theory of a pension system and its successful operation.’ [Citation.] … [T]he Legislature’s primary purpose in enacting the PEPRA amendment was to modify CERL’s ‘very broad and general definition of “compensation earnable” ’ to prevent pension spiking. [Citation.] An examination of the changes made by PEPRA demonstrates that the Legislature accomplished this objective by introducing new exclusions and limitations that bring the definition of ‘compensation earnable’ into closer alignment with the preexisting theory underlying CERL’s determination of pension benefits. A legislative intent to align the express language of a pension statute more closely with its intended manner of functioning directly relates to both the theory of a pension system and its successful operation.” (Alameda, supra, 9 Cal.5th at p. 1095.)

“The definition of ‘compensation earnable’ in section 31461, which specifies the manner in which a retiring employee’s compensation is used in calculating his or her pension benefit, is a critical component in establishing the general theory underlying CERL’s payment of pension benefits. … [C]ompensation earnable is based on the retiring employee’s average daily rate of pay during the final compensation period, applied over the number of days ordinarily worked during that time by the employee’s peers, identified as ‘persons in the same grade or class of positions during the period.’ [Citation.] Among employees in this peer group, differences in pension benefits are therefore determined by variations in individual employees’ average daily compensation during the final compensation period, rather than by the relative amount of time the employees worked. An employee becomes entitled to a greater pension benefit than his or her peers by being compensated at a higher rate, not by working more days. This is so because the calculation required by section 31461 assumes that all employees have worked the same number of days — that is, ‘the average number of days ordinarily worked by persons in the same grade or class of positions during the period’ — and excludes overtime pay earned outside of ‘normally scheduled or regular working hours.’ [Citation.]” (Alameda, supra, 9 Cal.5th at pp. 1095-1096.)

“Given this fundamental definition, the inclusion in final compensation of the items of compensation excluded or limited by the PEPRA amendment can be viewed as distorting the pension calculation and increasing pension benefits beyond the amount anticipated by the underlying theory of compensation earnable. Section 31461, subdivision (b)(2), for example, limits the inclusion of payments for unused leave time in compensation earnable to the amount ‘earned and payable ... during the final average salary period, regardless of when reported or paid.’ Restricting the inclusion of such payments to those earned in the final compensation period promotes the underlying theory established by the general language of section 31461. Leave time earned prior to the final compensation period is, necessarily, awarded in return for work performed prior to that period. The receipt of cash-out payments for such leave time during the final compensation period therefore has the effect of shifting compensation for that earlier work into the final compensation period, thereby artificially inflating the days of compensation received during the final compensation period. This is incompatible with the general approach of section 31461, which calculates pensionable compensation on the basis of the same worktime for every employee within a pay class. Limiting the inclusion of such payments in the compensation earnable calculation to the amount ‘earned and payable’ during the final compensation period, as required by section 31461, subdivision (b)(2), reduces the potential for distortion from this type of compensation.” (Alameda, supra, 9 Cal.5th at p. 1096.)

“A comparable rationale supports the enactment of section 31461, subdivision (b)(3), which excludes ‘[p]ayments for additional services rendered outside of normal working hours.’ Section 31461 bases compensation earnable on the same number of days worked for all employees within a particular pay grade. The long-standing exclusion of overtime from compensation earnable, now embodied in section 31461.6, confirms that an employee’s pensionable compensation is generally to be based on pay for work performed during normal working hours. Consistently with this exclusion of overtime, subdivision (b)(3) requires the exclusion of compensation for other services rendered outside normal working hours. This restriction prevents employees from volunteering, during their final compensation period, to perform additional services outside normal working hours in order to artificially inflate their daily rate of pay. Subdivision (b)(3) therefore reinforces the portion of section 31461 that requires compensation earnable to be based on the same work year for all employees within a particular pay grade.” (Alameda, supra, 9 Cal.5th at p. 1097, fn. omitted.)

“New subdivision (b)(3) of section 31461 excludes payments for ‘additional services rendered outside of normal working hours’ from compensation earnable. An often-cited example of such compensation is on-call duty pay, which is provided to employees in return for voluntarily making themselves available to be called to work outside their normal working hours. Because such pay is cash remuneration, it is ‘compensation’ under section 31460. Yet because compensation earnable excludes overtime pay and is calculated on the basis of the days ‘ordinarily’ worked by an employee’s peers (§ 31461, subd. (a)), the inclusion of payment for services provided outside normal hours in compensation earnable is arguably inconsistent with the statutory concept.” (Alameda, supra, 9 Cal.5th at p. 1062.)

“This understanding is reinforced by the text of section 31461.6, which excludes ‘overtime premium pay’ unless the pay is received as compensation ‘for hours worked within the normally scheduled or regular working hours that are in excess of the statutory maximum workweek.’ [Citation.] In other words, overtime pay is not excluded if it is earned by an employee as part of his or her ‘normally scheduled or regular working hours.’ [Citation.] Only payment for excess hours, as compared to the employee’s peers, is excluded.” (Alameda, supra, 9 Cal.5th at p. 1096, fn. 32.)

(3)       Petitioners’ Claim of Ministerial Duty

Continuing the analysis to determine the appropriate standards of review to apply to this petition, it is necessary also to consider the specific arguments made by petitioners with respect to the relief sought. Petitioners make two basic arguments in support of their petition: that SBCERS failed to comply with its ministerial duty to include standby pay for petitioners in “compensation earnable” and that standby pay should be included as compensation earnable because it is essentially an assignment pay.

As to the first argument, petitioners argue that standby pay is for mandated and regularly scheduled hours of work, that petitioners all belong to distinct grades of positions, and that SBCERS’s two-part test is not required by section 31461 and is inconsistent with other CERL systems. (Petitioners’ Opening Brief, at pp. 16-22.) In opposition, respondents do not dispute that petitioners’ standby pay is for mandated and regularly scheduled hours of work (Part A of the two-part test explained below). (Respondents’ Opposition Brief, at pp. 7-8.) Respondents focus particularly on job classification and the issue of whether standby work was ordinarily and consistently worked in the petitioners’ job classifications.

            (A)       SBCERS Policy

The County adopted a classification system of 385 active job classifications for County employees. (AR 1, p. 41; AR 5, pp. 2056-2067.) Petitioners Sadecki, Zaniboni, Perkins, Ysebrands, and Jopes retired in the job classification of Fire Captain Staff. (AR 4, pp. 1369-1371, 1373-1375, 1377-1379, 1381-1383, 1385-1387.) Petitioner Harris retired in the job classification of Fire Engineer Inspector Staff. (AR 4, pp. 1389-1391.) Petitioner Weitzman retired in the job classification of Sheriff’s Sergeant. (AR 4, pp. 1402-1404.) Petitioner Simon retired in the job classification Sheriff’s Deputy, Special Duty. (AR 4, pp. 1406-1408.) Petitioner Weirum retired in the job classification Sheriff’s Deputy. (AR 4, pp. 1410-1412.) The classification system is not challenged in this petition.

In its effort to correct the calculation of compensation earnable consistently with the Alameda decision, SBCERS analyzed County job classifications to determine whether the inclusion of standby pay met the Alameda decision’s test. In particular, as set forth in the Stand-By Report, SBCERS staff gathered information to determine (1) whether stand-by duty is a regular part of the normal working hours of SBCERS membership and (2) whether inclusion of stand-by pay in compensation earnable was resulting in members receiving pensions greater than the average of similarly situated members. (AR 1, p. 34.)

The Stand-By Report adopted as its definition of “similarly situated members” to use in making its determinations under section 31461, subdivision (a), for “grade or class of positions” as members “within a job class as defined in a plan sponsor salary resolution.” (AR 1, p. 14.) In reaching this conclusion, the Stand-By Report states:

“In our study, we identified that a significant portion of the stand-by duty assigned to members occurred within large job classification. We also found that the major determinate of a members schedule and the amount of stand-by a member was assigned was more correlated to the member’s assignment to a specific program and work location staffed by the member’s job class. We did not find that schedules or the assignment of stand-by duty correlated to the member’s greater job classification.” (AR 1, p. 43.)

“Notwithstanding our determination that job classification is an overly broad classification system we found it to be the only available objective method of determining a members ‘grade or class of positions’ as is contemplated in government code section 31461(a). From a practical perspective, we reviewed County payroll accounting procedures, budgetary procedures and were unable to determine an alternative method of classification that would allow us to reliably group members by assignment or location—the two drivers of stand-by pay—in a consistent and objective manner. We found several departments that utilize the location or budget units to capture certain instances of specialty assignments or work locations but the data was not uniform across all departments and classifications.” (AR 1, p. 44.)

SBCERS relied upon the distinction identified in Alameda as to what would fall within or without the statutory definition of compensation earnable:

“We emphasize that there is nothing inherently abusive in the practices addressed by section 31461, subdivision (b)(2) through (4), at least when divorced from their pension consequences. Accepting voluntary on-call duty and cashing out unused leave time to the extent permitted by an employer are ordinary practices that serve proper public policy interests. Yet by not expressly excluding such payments when determining a county employee's pension benefit, the pre-PEPRA definition of compensation earnable allowed an employee to considerably increase his or her pension benefit by volunteering for a large quantity of on-call duty or by accumulating and cashing out a large quantity of unused leave time during the final compensation period. Because such enhancements are arguably inconsistent with the underlying concept of compensation earnable, which is intended to reflect pay for work ordinarily performed during the course of a year, these types of enhancement have been characterized as pension spiking.” (Alameda, supra, 9 Cal.5th at p. 1063; AR 1, p. 45.)

SBCERS adopted criteria in which voluntary, ad hoc, assumed time, incident related, and selective stand-by time would be excluded, but mandatory, scheduled in advance, recurring, and uniform stand-by time may be included as part of the first part of SBCERS’s two-part test. As noted above, all of the petitioners met this first part of the two-part test and so it is not at issue here.

SBCERS developed the second part of its two-party test by considering several metrics. (AR 1, p. 51.) SBCERS compared the frequency of stand-by duty across class membership and the volume of stand-by duty performed within each job class. (Ibid.) SBCERS charted the average stand-by hours worked for each member per pay period (volume) against the average number of pay periods in which stand-by duty was worked for each member (frequency). (Ibid.) SBCERS concluded that the closer the data points are grouped, the stronger the indication that all employees within the class were performing stand-by duty in the same relative manner. (Ibid.) To assess these measures numerically, SBCERS also computed the coefficient of variation by job classification for each measure. (Note: The coefficient of variation measures the standard deviation as a fraction of the mean in each calculation, thereby providing a measure of dispersion of the data with a lower number reflecting a lower level of dispersion. A lower level of dispersion indicates that all employees within the classification were performing the stand-by duty in the same relative manner.) Based upon this measure of dispersion, SBCERS determined that any job classification for which either metric’s coefficient of variation exceeded 70 percent demonstrated that members of the job classification were not performing stand-by duty in the same relative manner. (AR 4, p. 1364.) Where there was such excessive dispersion, SBCERS found that stand-by duty was not ordinarily worked by all members of the job classification as required by Alameda. (AR 4, p. 1367.)

Applying the policy derived from this two-part test, SBCERS determined that the stand-by pay to petitioners was not compensation earnable.

            (B)       SBCERS Duty

“A ministerial duty is an obligation to perform a specific act in a manner prescribed by law whenever a given state of facts exists, without regard to any personal judgment as to the propriety of the act.” (People v. Picklesimer (2010) 48 Cal.4th 330, 340.)

The first principal issue to resolve here is whether SBCERS has a ministerial duty to treat each of the petitioners as members of their own individual class or grade. Stevenson, supra, 186 Cal.App.4th 498, is instructive. As discussed above, the petitioner in Stevenson was classified as an “investigator” but argued that he should have been classified as a subgroup comprised of “narcotics investigators.” Although Stevenson was decided prior to PEPRA, the same “grade or class of positions” language as exists now was considered. Then, as now, there is no statutory definition of “grade or class of positions.” There, as here, the employer had created a classification system for employees that did not include the narrower classification sought by the petitioner. (Id. at p. 510.) The Stevenson court resolved this issue as a matter of substantial evidence. (Id. at pp. 501, 512.)

For present purposes, Stevenson’s resolution as a matter of substantial evidence is significant. Stevenson rejected the proposition that the MOU classification system used by Orange County was dispositive, instead determining that the trial court should have considered, and did consider, the entire record within which consideration of the MOU was proper. (Stevenson, supra, 186 Cal.App.4th at p. 512.) At the same time, Stevenson affirmed the trial court’s ruling finding that there was substantial evidence based on the Orange County classification system that “narcotics investigator” was not a separate classification within CERL. (Id. at pp. 510-511.) Putting theses concepts together, Stevenson implies (1) that a particular position is not generally a “grade or class of positions” under section 31461, subdivision (a), and (2) whether a position may be deemed a “grade or class of positions” is a matter to be determined upon consideration of the totality of the circumstances, including the determination of classification made by the employer. Consequently, where, as here and as in Stevenson, a classification has been made by the employer, that classification determination is substantial evidence (but not conclusive evidence) supporting the determination that a particular person within that classification is so classified under section 31461. In other words, an employer may determine the classification of employees for purpose of section 31461, provided that it otherwise complies with the law, and it is not a ministerial duty of the retirement board, SBCERS here, to reclassify its members using a different, narrower classification scheme.

(4)       Petitioners’ Objections      

Based on the foregoing, whether or not the County could properly create a narrower classification scheme, and whether or not SBCERS could properly deem those within a County classification as within a different grade, the determination of the class or grade is necessarily one of discretion and not a ministerial duty. Petitioners therefore fail to show that SBCERS has not performed a ministerial duty to calculate petitioners’ compensation earnable by an average of a narrower class or grade of positions.

Petitioners nonetheless argue that the two-part test adopted by SBCERS is not required by section 31461. The court agrees that the two-part test adopted by SBCERS is not required in the sense that all CERL systems applying section 31461 must use the SBCERS two-part test. However, the court disagrees with the proposition that because that two-part test is not required for all systems that it is legally inconsistent with section 31461. As discussed above, the “same grade or class of positions” language of section 31461 is not further defined by statute, so some mechanism is required to determine what constitutes the “same grade or class of positions.” As Stevenson teaches, the employers’ own classification system is properly considered but is not dispositive. In order to avoid a claim of being arbitrary or capricious, it is necessary for the retirement board to support its chosen mechanism with a reasonable basis. The evidence presented here demonstrates that, regardless of the level of deference given to SBCERS’s choice of mechanism, the two-part test is well-considered and reasonably based.

Petitioners further argue that the two-part test is improperly more restrictive than permitted by section 31461. This argument focuses upon an incorrect characterization of the two-part test, emphasizing the word, “all” in “ordinarily worked by all members of the job classification.” (Petitioners’ Opening Brief, at p. 19.) As SBCERS notes, the “all” reflects the group for which the standby pay is analyzed. (See Alameda, supra, 9 Cal.5th at p. 1097 [“Subdivision (b)(3) therefore reinforces the portion of section 31461 that requires compensation earnable to be based on the same work year for all employees within a particular pay grade.”].) The second part of the two-part test itself puts the emphasis on “ordinarily” so as to distinguish those classifications where stand-by pay is an ordinary part of compensation across the classification as compared with stand-by pay that constitutes an artificial inflation of pay for pension-computation purposes. The two-part test is thus not more restrictive than permitted by section 31461 because it is a reasonable means of distinguishing between the permissible and impermissible components of compensation earnable. When particularized to petitioners’ respective job classifications, the level of dispersion is substantial evidence to demonstrate the lack of stand-by pay as ordinarily worked across each respective job classification.

For essentially the same reasons, it is not persuasive whether other CERL systems take a different approach. As this discussion explains, different employers may determine how to classify employees, within broad ranges of discretion, in furtherance of their respective policy choices. Section 31461 does not require a particular classification system. Petitioners’ objections to the inclusion or exclusion of stand-by pay ultimately resolves to an objection that the County job classification determination is too broad. It is for that reason the determination of job classification is not a ministerial duty for which SBCERS may be subject to control by an ordinary writ of mandate.

Petitioners finally argue that petitioners’ stand-by pay is essentially assignment pay permitted by Ventura, supra, 16 Cal.4th at pp. 498-500, and therefore should be treated as such. This argument implies that the County could have restructured its MOUs, just as it could have restructured its job classification system, to fit within the types of pay permitted under PEPRA as compensation earnable. Regardless of whether this implication is true, the County did not actually do so and the record before the court does not indicate any intent of the County to have done so. This necessarily reflects a discretionary decision of the County which is not before the court. SBCERS is not under a ministerial duty to recharacterize compensation in a manner that the County has exercised its discretion not to do.

Petitioners’ argument in reply that SBCERS determination is arbitrary or capricious because it omits “grades” similarly fails. Section 31461 is a statute of statewide application. The inclusion of the term “grade” in “grade or class” permits grades within job classifications. The inclusion of the term does not imply that all job classification systems must include grades. As in Stevenson, the fact that a narrower classification or gradation could reasonably be included does not mean that such a narrower classification must be included.

“[T]he court’s role is to ‘ensure that the administrative agency has adequately considered all relevant factors, and has demonstrated a rational connection between those factors, the choices made, and the purposes of the enabling statute.’ [Citation.]” (Ruegg & Ellsworth v. City of Berkeley (2021) 63 Cal.App.5th 277, 298.)

SBCERS has presented persuasive evidence to demonstrate that its method of determination of the exclusion of stand-by pay from petitioners’ respective calculations of compensation earnable, and the resulting calculations, are consistent with section 31641 as explained by Alameda. Among other things, consistent with Stevenson, SBCERS’s Stand-By Report demonstrates that the determination not to include petitioners’ stand-by pay was a reasonably considered effort to conform the calculation of compensation earnable to section 31461 as interpreted by Alameda. While reasonable minds may differ as to how to implement Alameda, the implementation determined by SBCERS is not arbitrary, capricious, or entirely without evidentiary support.

A recurring problem with the exercise of quasi-legislative discretion is that by making any determination, the public entity is necessarily choosing to draw a line that includes some and excludes others. Those excluded but near where the line is drawn will frequently see the choice as arbitrary and inequitable. The role of the court in this proceeding, however, is not to impose its own sense of fairness in place of the considered determination of a public agency.

“ ‘When a court reviews a public entit[y’s] decision for an abuse of discretion, the court may not substitute its judgment for that of the public entity, and if reasonable minds may disagree as to the wisdom of the public entity’s discretionary determination, that decision must be upheld. [Citation.] Thus, the judicial inquiry ... addresses whether the public entity’s action was arbitrary, capricious or entirely without evidentiary support, and whether it failed to conform to procedures required by law.’ [Citation.]” (CV Amalgamated LLC v. City of Chula Vista (2022) 82 Cal.App.5th 265, 280.)

After a full consideration of the entire record before the court and all of the arguments of the parties, the court finds that SBCERS decision as to each of the petitioners was not arbitrary, capricious, or entirely without evidentiary support. The petition for writ of mandate will therefore be denied.

(5)       Procedural Matters

            (A)       Administrative Record

The administrative record in this matter is highly problematic. Ordinarily, the administrative record is filed with the court in advance of briefing. This timing allows the court to address any issues with the completeness or accuracy of administrative record before the parties cite to it in their respective briefs. However, in this matter the parties stipulated to file the administrative record no later than November 7, 2024, which was entered as an order of the court on May 9, 2024. (Order, filed May 9, 2024, p. 3.) This timing had the administrative record filed after the principal briefs had been filed and concurrently with the reply. (See Stipulation re: Revised Briefing Schedule & Order, filed Sept. 23, 2024, p. 3.) In permitting this scheduling, the court assumed—erroneously as it turns out—that the parties would have completed the administrative record in such a manner that there would be uniform citation throughout the briefing.

Instead, the court is faced with something of a mess. The petitioners’ opening brief does not cite directly to the administrative record. Instead, it cites to declarations and exhibits filed concurrently with the opening brief. The respondents’ opening brief cites to the administrative record, but does so not by page in the administrative record, instead citing to a bates-numbering system of documents as those documents were apparently produced, e.g., “WEIRUM_000001.” Page number WEIRUM_000001 is found on page 16 of the first volume of administrative record and contrary to the pagination required by the Rules of Court. (See Cal. Rules of Court, rule 2.109 [“Each page must be numbered consecutively at the bottom unless a rule provides otherwise for a particular type of document. The page numbering must begin with the first page and use only Arabic numerals (e.g., 1, 2, 3).”] It is unclear where that document may be found among the exhibits filed with the opening brief. In an effort to maintain some consistency in citation in this ruling, for all but volume 6 of the administrative record, the court cites to the page number of the documents by its bates-number, omitting “WEIRUM_” and leading zeros. This is similar to the citation used in the respondents’ brief, but the respondents failed to identify the volume number of the administrative record, making it necessary constantly to refer to a notice of lodging as an index.

As to volume 6, which consists of two deposition transcripts, the court cites to the pdf page number. Because of this arrangement of documents and failure to provide a consistent citation, it has been unreasonably difficult for the court to find documents cited in the administrative record. Also complicating this process, the index to the administrative record found in the beginning pages of volume 1 is sideways, requiring reconfiguration in order to be used. Moreover, this index includes only some of the documents in the administrative record and ends at page 2067.

The administrative record also includes a lodged flash drive on which is an Excel spreadsheet in its native format. While the court encourages providing spreadsheet information to include the formulas used to calculate individual computations (so that the court can see directly how calculations are made), here the spreadsheet is more in the nature of a series of lists. All of these lists could, and should, have been exported to a pdf document (an easy-to-use function available in Excel) so as to be included directly in the filed administrative record. (This could have been done in addition to lodging a native-format spreadsheet if it was thought advisable.)

Finally, despite the deadline set forth in the court’s order as stipulated by the parties, the administrative record was not filed until November 8—one day late.

Based on these multiple failures that have placed an undue burden on the court and the court staff, the court has considered setting an order to show cause re sanctions or to require the briefs and record to be refiled in a manner complying with the Rules of Court, However, given this stage of the proceedings, the court has determined not to do so. The court reminds all parties of their obligation to follow the rules of court and court orders, including orders as to timing.

            (B)       Requests for Judicial Notice

In opposition to the petition, respondents request that the court take judicial notice of: (Request for Judicial Notice, exhibit A) Stats. 2024, ch. 824 (Assem. Bill No. 2284 (2023-2024 Reg. Sess.); and (exhibit B) Senate Rules Committee, Office of Senate Floor Analyses, Report on Assembly Bill No. 2284 (2023-2024 Reg. Sess.) as amended June 27, 2024. These requests for judicial notice are granted. (See Evid. Code, § 452, subds. (a), (c).)

            (C)       Motions in Limine

Respondents have filed two motions in limine. Motion in limine No. 1 seeks to exclude evidence regarding (1) a December 20, 2022, resolution of the Orange County Board of Supervisors; (2) a memorandum dated December 16, 2022, from Orange County Supervisor Andrew Do regarding that resolution; (3) the December 20, 2022, agenda of the Orange County Board of Supervisors; (4) proposed findings of fact, conclusion, and recommendation of Hearing Officer Duane Bennett in San Bernardino County Sheriff’s Employees’ Benefit Association v. San Bernardino County Employees’ Retirement Association; (5) the meeting minutes of February 3, 2022, adopting those proposed findings; (6) the March 2, 2022, side letter agreement between the County of Santa Barbara and the Santa Barbara County Fire Fighters, Inc., Local 2046; and (7) the March 2, 2022, side letter agreement between the County of Santa Barbara Deputy Sheriffs’ Association, dated March 2, 2022. Motion in limine No. 2 seeks to exclude the declarations of petitioners filed in support of the petition.

The motions are denied. In any event, the court notes that this evidence has very limited probative value and, if this evidence was not considered at all, the court’s disposition of the petition would remain unaltered.