Under the County Employees Retirement Law of 1937 (CERL), an Orange County employee’s pension is based in part on “compensation earnable,” defined by Government Code section 31461 as average pay computed using the number of days “ordinarily worked by persons in the same grade or class of positions” at “the same rate of pay.” Following a 2008 reorganization of the Orange County Sheriff’s Department, deputies classified as deputy sheriff II were assigned to patrol, while jail operations were staffed by deputy sheriff I’s and by deputy sheriff II’s who had opted to remain in the jail. All deputies working exclusively in jail operations, regardless of rank, worked a “platoon schedule” of 80.5 hours every two weeks, which built in a half-hour of overtime known as “6FE” overtime.
Robert Szewczyk and Rodney Morikawa, deputy sheriff II’s who worked in jail operations, retired in 2018 and asked the Orange County Employees Retirement System (OCERS) to include their 6FE overtime in their compensation earnable. OCERS denied the request, reasoning that most deputy sheriff II’s work outside corrections and are not required to work the extra half-hour, so the 6FE time was not “ordinarily worked” by others in their grade or class. After an administrative hearing officer recommended granting Szewczyk’s and Morikawa’s appeals, the OCERS Board rejected that recommendation and reaffirmed the exclusion.
Szewczyk and Morikawa petitioned the Orange County Superior Court for writs of administrative mandamus and traditional mandamus to set aside the Board’s decision. The trial court granted the petitions, finding that after the 2008 reorganization, deputy sheriff II’s working in jail operations were treated as a separate grade or class from other deputy sheriff II’s for purposes of the platoon schedule and 6FE overtime, and that the 6FE overtime was ordinarily included in the normal working hours for all deputies assigned to the jail. Relying on section 31461 and the California Supreme Court’s decision in Alameda County Deputy Sheriff’s Assn. v. Alameda County Employees’ Retirement Assn. (2020) 9 Cal.5th 1032, the court ordered OCERS to include the 6FE overtime in Szewczyk’s and Morikawa’s compensation earnable, retroactive to their retirement dates with interest. OCERS’s motion for reconsideration was denied, and OCERS appealed.
In the published case of Szewczyk et al. v. Orange County Employees Retirement System et al., No. G065386 (Cal. Ct. App., 4th Dist., Div. 3, Aug. 2026) the Court of Appeal affirmed the judgment in full, with respondents to recover costs on appeal.
The court explained that CERL does not define “grade or class of positions,” and that the California Supreme Court in Alameda described the statutory phrase as “both very general and somewhat inscrutable.” Applying Alameda’s framework, the court looked to whether deputy sheriff II’s in jail operations were truly “comparable” to deputy sheriff II’s on patrol. It found they were not: only 30 of 630 deputy sheriff II’s worked in the jail and the platoon schedule, jail assignment had historically been a matter of employee choice tied to the 2008 reorganization, and deputies in the jail had markedly different duties, unit-recruitment requirements, work locations, and schedules than those on patrol. The court also noted this conclusion aligned with a 2024 amendment to section 31461 allowing retirement systems to define “grade” by reference to shared job duties, schedules, and similar factors, even though that amendment was not yet effective when the trial court ruled.
OCERS argued the case was controlled by Stevenson v. Board of Retirement of Orange County Employees Retirement System (2010) 186 Cal.App.4th 498, in which the same appellate district held that a narcotics investigator’s unusually heavy overtime did not make him part of a distinct “narcotics investigator” grade, since the department’s own job descriptions and memoranda of understanding recognized only five broader classes. The court distinguished Stevenson on two grounds: the overtime there arose case-by-case “whenever it was necessary to complete an ongoing investigation,” rather than being built into a fixed, regularly scheduled shift, and a 2022 Orange County Board of Supervisors resolution — issued after Stevenson — confirmed that the County’s labor agreements had never bothered to formally designate grades for retirement purposes even where real differences in duties and schedules existed, undercutting the inference that the absence of a “custody deputy” job title meant no such grade could exist.
The court also rejected OCERS’s argument that the trial court ignored section 31461’s requirement that comparable employees share the “same rate of pay,” clarifying that the trial court never found deputy sheriff I’s and deputy sheriff II’s in the jail formed a single combined grade; rather, it found deputy sheriff II’s in jail operations formed their own grade, separate from deputy sheriff II’s on patrol, a distinction the court held was adequately supported by the record. Reviewing for substantial evidence, the court found the record amply supported the trial court’s findings and affirmed.