In 2004, Sean Conway, then an officer for the San Diego Police Department, sustained a work-related back injury resulting in multiple surgeries and spinal fusions.
In 2008, Sandra Claussen, a medical review officer employed by San Diego City Employees’ Retirement System (SDCERS), recommended that SDCERS’s board approve Conway’s disability retirement. SDCERS granted Conway permanent disability retirement after finding his injuries had resulted in permanent incapacity from the substantial performance of his duties.
Conway and his family moved to Idaho in 2008. The following year, he obtained a job as a jail technician, and later secured a job as a detention specialist at a juvenile detention facility.
In 2013, Conway considered applying for a position as a detention deputy in an Idaho county jail that paid $23 per hour, but became concerned that accepting this position might jeopardize his disability pension. That year, he met with Claussen to inquire whether his acceptance of the detention deputy position would jeopardize his disability pension.
Claussen told his family that the position was similar to a corrections deputy in the San Diego County Jail system run by the San Diego County Sheriff, and that since the San Diego Police Department did not staff jails, there was no comparable position with the San Diego Police Department so that Conway’s taking the Idaho position would not jeopardize his disability pension. They asked Claussen multiple times to put her assurances in writing, but she declined, telling them, “We don’t do that, but you have nothing to worry about.”
Conway took the Idaho position. Claussen intentionally concealed her assurances to plaintiffs from SDCERS, which later commenced an administrative action to have Conway’s disability retirement taken away. The Conways did not discover Claussen’s concealment until they deposed her in June 2019. That month, Conway and SDCERS participated in a hearing before a retired judge. The judge ruled in Conway’s favor and recommended his disability retirement continue. In November 2019, the SDCERS board voted to continue his disability retirement.
The Conways then sued SDCERS for intentional and negligent representation and concealment, and alleged they “incurred substantial expenses and suffered substantial emotional distress during SDCERS’ efforts to eliminate [Conway’s] disability pension.” The the trial court sustained a demurrer to the second amended complaint without leave to amend, ruling that the action was barred by Government Code sections 821.6 and 815.2. The trial court ruling was affirmed in the unpublished case of Conway v. San Diego City Employees’ Retirement System – D079355 (November 2022).
Under the Government Claims Act, a public entity is not liable for injury except as otherwise provided by statute. Government Code Section 815.6 is one of these statutes.
The intent of the act is not to expand the rights of plaintiffs in suits against governmental entities, but to confine potential governmental liability to rigidly delineated circumstances: immunity is waived only if the various requirements of the act are satisfied.
Under 815.6 the government may be liable when (1) a “mandatory duty” is imposed by enactment, (2) the duty was designed to protect against the kind of injury allegedly suffered, and (3) breach of the duty proximately caused injury.
The California Constitution’s broadly-worded duties on retirement boards to administer pension systems to assure prompt delivery of services and benefits, or to discharge duties solely in the beneficiaries’ interests and with care, skill, prudence and diligence, are not specific commands to engage in particular advice or disclosures of the sort on which plaintiffs base their claim. And none of the other provisions cited by the Conways suffice to create “mandatory duties” on SDCERS.
The lack of a showing of a “mandatory duty” to properly properly advise the Conways about their pension continuation is the missing element for the governmental immunity exception under 815.6 to apply to their claims.