City’s Own Decision Proves Police Chief Is Disabled

Garrett Zimmon was the Police Chief of San Bernardino, California. Zimmon described the City as “a very dynamic city, with high crime, and a lot of challenges.” Zimmon explained a variety of the challenges that he faced while working as the Chief of Police. The same day Zimmon was sworn in, the vice president of the Peace Officers Association was in an officer-involved shooting. Also on that day, Zimmon learned about a potential case involving a police officer raping 16 women while on duty, which “was a major black eye for the law enforcement agency.”

Zimmon also cited the fact that he was involved in the response to massive wildfires in 2003. Zimmon found the politics in the City to be “very difficult” because “department heads are often used for political purposes.” For example, Zimmon described a time when the mayor, at a city council meeting, wanted Zimmon to personally arrest the City Attorney. Zimmon explained that crime was the main issue in the 2005 mayoral election, and in November 2005 a young girl was killed in a gang-related crime, which brought a lot of local and national media attention to the City. Zimmon worked 12 to 14-hour days, usually working from 7:00 a.m. until 10:00 p.m.

Zimmon began to suffer from a variety of symptoms, and was eventually diagnosed with atrial fibrillation. When Zimmon’s condition worsened, he became unable to perform his normal job duties. The City eventually terminated him, giving him a severance package of approximately $124,000.

Zimmon also filed a claim for a disability retirement. An administrative law judge acting through the City Council’s Office of Administrative Hearings concluded Zimmon “proved his disability and incapacity for performance of duty” on the basis of competent medical opinion, but found that Zimmon was not eligible for disability retirement due to Zimmon being terminated before his right to a disability retirement matured. When the City Council formally adopted the ALJ’s decision, the matter ended up in the California Court of Appeals.

The Court wrestled with the legal impact of Zimmon having been terminated before applying for a disability retirement. In general, California’s PERS system requires that disability retirement applications be made while the individual is employed or on medical leave, or within four months of termination of service to the employer. However, another statute provides that if a member is disabled “and is eligible to retire for disability,” the member “shall” be immediately granted a disability retirement.
Court decisions knitting these two requirements together have created a so-called “equitable exception” to the rule that employees applying for disability retirement must do so within four months of the termination of their service. Under the “equitable exception,” the phrase “eligible to retire for disability” means that the person was an active employee, who would be able to return to his job if he overcame his disability.”

The Court found that the City Council’s decision disposed of Zimmon’s disability retirement application, but not in the City’s favor. As the Court described it, “the City Council, charged with making the determination regarding Zimmon’s disability, actually found Zimmon’s disability qualified him for disability retirement. Therefore, the evidence in this case goes beyond that required for the equitable exception. For the equitable exception to apply, the employee needs to show a favorable decision on his claim would have been a foregone conclusion. In this case, Zimmon actually has a finding on his claim by the City. As result, there is no doubt that a favorable decision would have been made on his claim, because there is actually a finding that he is disabled and incapacitated to perform his duties. Given the City Council’s decision regarding Zimmon’s disability, the only evidence supports a finding in Zimmon’s favor – there is not substantial evidence in the City’s favor.”

Zimmon v. City of San Bernardino, 2011 WL 4337123 (Cal. App. 2011).

This article appears in the November 2011 issue.