Disability Retirement Appeal Hearing In California

In Usher v. County of Monterey (1998) Monterey County Deputy Sheriff Usher applied to the Public Employees' Retirement System (PERS) for disability retirement. The county advised PERS that Usher was not incapacitated for deputy sheriff duties and was not eligible for disability retirement. Usher appealed the county's decision. A hearing was held before a county appointed hearing officer and an administrative law judge. (Id. at p. 214.) The hearing officer issued his findings and determined that Usher was not substantially incapacitated. (Id. at p. 215.) Usher filed a petition for mandamus relief in superior court. "Usher alleged the proceedings were unfair because a hearing officer employed by the County, rather than the administrative law judge, conducted the hearing and issued the findings, contrary to the express provisions of Government Code section 21025 now section 21156." (Usher v. County of Monterey, supra, 65 Cal. App. 4th at p. 215, fn.) The question before the superior court was "whether the County was required to have the hearing conducted by an administrative law judge." the court granted the petition and a writ of mandamus issued. the county appealed. (Ibid.) On appeal, the county contended that section 11512 specifically authorized use of a hearing officer, with an ALJ appointed to preside over the appeal hearing. Usher argued that former section 21025 (now 21156) took precedence over section 11512 and required the county to appoint an ALJ to conduct the appeal hearing. (Usher v. County of Monterey, supra, 65 Cal. App. 4th at p. 217.) The court agreed with Usher and reasoned: "First, where state statutes prescribe special hearing provisions for various individual agency proceedings, those provisions prevail over the more general provisions of the APA Administrative Procedure Act. "Secondly, . . . section 21156 does not necessarily conflict with the APA provisions describing the formal hearing process. Section 11512 gives the agency the choice of hearing the case itself, with an administrative law judge presiding, or having the administrative law judge hear the case alone. Section 21156 simply mandates that, in any appeal from a determination under PERS law that the employee is or is not entitled to disability benefits, the agency must follow the APA provisions which provide for an administrative law judge to conduct the hearing alone." ( Usher v. County of Monterey, supra, 65 Cal. App. 4th at pp. 217-218.) The court then determined that "the procedure used by the County in this case, whereby it contracted with a hearing officer to render a decision on the merits, with an administrative law judge presiding to rule on evidentiary matters, does not in our view comply with either of the two procedures described in . . . section 11512. Although the administrative law judge 'presided over' the hearing and made evidentiary and other rulings, he did not 'hear the case alone.' ( Gov. Code, 11512, subd. (a).) Nor did the 'agency itself . . . hear the case with an administrative law judge.' (Ibid.) Where the statute refers to the 'agency itself,' it means that 'the power to act shall not be delegated unless the statutes relating to the particular agency authorize the delegation of the agency's power to hear and decide.' ( Gov. Code, 11500.) Thus if the County does not use an administrative law judge to hear the case alone, the County's governing body must hear the case itself, with an administrative law judge presiding; in other words, it may not delegate the decision making authority to a hearing officer." (Usher v. County of Monterey, supra, 65 Cal. App. 4th at p. 218, fn. omitted.)