Precedential Board Decisions, Appeals & Hearings

Administrative hearings are presided over by a neutral administrative law judge from the Office of Administrative Hearings. They usually include the presentation of oral or written arguments, evidence, and witnesses. Many people choose to be represented by an attorney, but it's not required. A general description of the hearing process can be viewed on our General Procedures for Administrative Hearings page.

Regulations on Administrative Appeals

These regulations govern administrative appeals with CalPERS and are part of Title 2 of the California Code of Regulations.

Section 555.1. Right of Appeal

Any applicant dissatisfied with the action of the executive officer on his application, other than his referral of the matter for hearing, may appeal such action to the board by filing a written notice of such appeal at the offices of the board within 30 days of the date of the mailing to him by the executive officer, at his most recent address of record, of notice of the action and right of appeal. An appeal shall contain a statement of the facts and the law forming the basis for appeal. Upon a satisfactory showing of good cause, the executive officer may grant additional time not to exceed 30 days, within which to file such appeal.

Section 555.2. Statement of Issues

Any applicant filing an appeal shall be entitled to a hearing, and upon the filing of an appeal in accordance with these rules, or upon the executive officer's referral of any question for hearing, the executive officer shall execute a statement of issues. Such action of the executive officer shall not preclude the board from recalling the proceedings for its review or hearing.

Section 555.3. Accusation

Any member whose retirement for disability has been requested by his employer shall be entitled to a hearing. The executive officer, upon determination that a member shall be retired for disability on such application, shall file an accusation and serve a copy thereof on the member and his employer.

Section 555.4. Hearings

All hearings shall be conducted in accordance with the provisions of Chapter 5, Part 1, Division 3, Title 2 of the Government Code. Each case shall be heard by the hearing officer alone. All proposed decisions of hearing officers shall be referred to the board. The executive officer is hereby authorized and empowered to take, in the name and on behalf of the board, any action which the board is authorized or directed by law to take with respect to procedural and jurisdictional matters in connection with any case in which a statement of issues or accusation has been filed.

This document is effective immediately upon adoption, and is adopted pursuant to California Government Code sections 11517 and 20120, and California Constitution, article XVI, section 17.

I. Purpose

This policy establishes procedures for conducting full hearings before the CalPERS Board of Administration (board) where the board has elected to suspend action on a proposed decision of an administrative law judge so that it can evaluate the entire record itself and hear the parties argue the merits of the case on the record.

II. Objective

The objectives of this policy are to

1. Establish consistent procedures for conducting full hearings before the board; and
2. To provide advance notice of those procedures to the parties involved.

III. Policy & Procedures

1. Applicability: This policy applies to full hearings before the board where the board has declined to adopt the Proposed Decision of an administrative law judge but rather has determined to evaluate the entire administrative record itself, and hear the parties argue the merits of the case on the record. Pursuant to Government Code section 11517, subsection (c)(2)(E), the board has the authority to decide such cases upon the record, “with or without taking additional evidence.”
2. Procedure for Full Hearings Before the Board:
   1. Board president announces agenda item for hearing.
   2. Parties seat themselves at presentation table.
   3. CalPERS counsel introduces parties.
   4. CalPERS counsel:
      1. States the nature of the proceeding,
      2. Notes compliance with notice requirements, and
      3. States brief procedural history of the case:
         1. Date of the administrative hearing,
         2. Date Proposed Decision presented to board, and
         3. Board's action on Proposed Decision.
   5. CalPERS counsel reminds board and parties of procedural requirements, and announces that the parties have received a copy of this document, entitled Procedures for Full Hearings Before the Board of Administration, and, in the case of an unrepresented member, that the member has been offered assistance in understanding the procedural requirements for a full hearing.
   6. CalPERS counsel presents staff's position and supporting arguments. This presentation shall not normally exceed 15 minutes. (See 8, below, regarding allocation of time among more than one party.) (See section III.C., below, regarding exceptions to this time limit.)
   7. Respondent, or respondent's counsel, presents respondent's position. This presentation shall not normally exceed 15 minutes. (See 8, below, regarding allocation of time among more than one party.) (See section III.C., below, regarding exceptions to this time limit.)
   8. If more than one party shares the position of CalPERS staff or the respondent, these parties shall split the time allocated to CalPERS staff or the respondent. The total time for each position shall be allocated on a pro rata basis among all the parties presenting argument for that position, unless those parties agree among themselves to allocate their time differently. (See section III.C., below, regarding exceptions to this time limit.)
   9. Upon conclusion of the last presentation of respondent's position, there will be a maximum of 5 minutes to offer rebuttal argument for the staff and the respondent, in the same order as the original presentations. If there is more than one party who shares the same position, the 5 minutes will be allocated on a pro rata basis among them, unless those parties agree among themselves to allocate their time differently.
   10. The board secretary shall keep track of time allotted to all presenters, and shall notify each speaker when they have two minutes remaining, and when time has expired.
   11. Upon conclusion of arguments, board members may question the parties or their counsel.
   12. CalPERS counsel states the alternatives which are available to the board for action and the consequences of each alternative.
   13. Upon a majority vote, the board president will recess the hearing for the purpose of holding a closed session to consider facts and legal arguments presented, and to deliberate. The board shall provide appropriate notice in advance of a full hearing that a closed session may take place. The closed session will be attended by board members only. Following its deliberations in closed session, the board shall re-convene in open session for the purpose of making a decision in the matter before it. The closed session will be recorded; the record will be kept confidential unless a court action is filed in which case the record will be transcribed and released upon request by a party to the action.
   14. Board makes its decision by voting to adopt one of the resolutions formulated by staff, or another alternative of its choice.
   15. CalPERS counsel announces that the Legal Office will prepare a formal decision based on the board's vote, for its adoption at the next meeting of the board.
   16. Board president announces conclusion of agenda item.
3. Requests for Exceptions to Time Limitations
   It is the board's intent to provide scheduling flexibility while maintaining a measure of oversight of these proceedings. In accordance with the goals of the board, the following will be the board's policy with respect to exceptions of time limitations.
   1. Some flexibility is possible in the relatively simple case in regard to the 15-minute time limitation in that it is subject to extension by the presiding officer of the board at any time. However, in the interest of efficiency, parties should inform the Board and other parties of any need for additional time at the earliest opportunity.
   2. In addition to the above exception, if a matter is unusually complex, a party may request a greater allotment of time in advance. The Board requests that in this type of case, requests for additional time should be handled as follows:
      1. The request should be filed no later than 5 days prior to the hearing, with:

         Chief Executive Officer
         CalPERS
         P.O. Box 942701
         Sacramento, CA 94229-2701

      2. The request should specify the amount of time needed.
      3. The request should be supported by a clear, written justification of the need for additional time.
      4. A copy of the request should be served concurrently on each party or their attorney of record.
         The party requesting additional time and all parties or their counsel will be notified prior to the hearing whether the request has been granted or denied. If granted, the total time designated for the parties who share the opposing position will also automatically be extended so that each position has the same total amount of time for oral presentation, allocated among the parties as provided in these policies and procedures.
4. Scope of Review: The scope of the board’s review in full hearings will normally be limited to the administrative record of the hearing before the administrative law judge as it stands. In rare circumstances, however, the interest of achieving a just result may require the consideration of newly discovered documentary evidence which could not, with reasonable diligence, have been discovered and produced at the hearing, and which is therefore not part of the administrative record.
5. Requests for Introduction of Evidence Which is not Contained in the Administrative Record:
   1. This policy applies only to documentary evidence. Under no circumstances will the board accept new witness testimony at a full hearing.
   2. A party who wishes to introduce evidence before the board which is not contained in the administrative record must submit a written request to that effect on or before the due date for written arguments. Such a request must be served on all parties and filed, by fax to (916) 795-3659 or by mail to:

      Board Secretary
      CalPERS
      P.O. Box 942701
      Sacramento, CA 94229-270

   3. All requests for introduction of evidence not included in the administrative record must be accompanied by a complete and legible copy of any documentary evidence to be offered. In addition, the request must:
      1. Show good cause why the evidence could not, with reasonable diligence, have been discovered and produced at the hearing;
      2. Show the relevance of the evidence offered; and
      3. Show that the evidence is otherwise admissible under the evidentiary rules of the Administrative Procedure Act.
   4. After reviewing the written request and oral argument, if any, the board may, in its discretion, decide to admit the evidence at the hearing.

IV. Responsibilities

1. Except as otherwise specified within this document, CalPERS chief executive officer is responsible for implementing these policies and procedures. The chief executive officer may delegate responsibilities to subordinate staff as may be necessary.
   1. The term "parties" means CalPERS counsel, counsel for any litigant, and any member or employer representative, whether or not represented by counsel.

In the Matter of the Appeal Regarding the Final Compensation Calculation of Mark L. Wheeler, Respondent, and Los Angeles County, Respondent. In the Matter of the Appeal Regarding the Final Compensation Calculation of Thomas R. Valdez, Respondent, and Los Angeles County, Respondent. In the Matter of the Appeal Regarding the Final Compensation Calculation of John M. Lopez, Respondent, and Los Angeles County, Respondent. In the Matter of the Appeal Regarding the Final Compensation Calculation of Larry Blackwell, Respondent and Los Angeles County, Respondent. In the Matter of the Appeal Regarding the Final Compensation Calculation of Garry G. Cohoe, Respondent and San Bernardino County Transportation Authority, Respondent (PDF)
No. 19-01, effective September 18, 2019

In the Matter of the Calculation of Final Compensation of Kareemah M.Bradford, Respondent, and City of Compton, Respondent (PDF)
No. 17-01, effective November 15, 2017

In the Matter of Accepting the Application for Industrial Disability Retirement of Phillip D. MacFarland, Respondent, and California State Prison, Sacramento, California Department of Corrections and Rehabilitation, Respondent (PDF)
No. 16-01, effective June 22, 2016

In the Matter of the Calculation of the Final Compensation of Randy G. Adams, Respondent, and City of Bell, Respondent (PDF)
No. 15-01, effective June 17, 2015

In the Matter of the Application for Industrial Disability Retirement of Robert Vandergoot, Respondent, and California Department of Forestry and Fire Protection, Respondent (PDF)
No. 13-01, effective October 16, 2013

In the Matter of the Appeal Regarding Calculation of Final Compensation of Craig F. Woods, Respondent, and Tahoe-Truckee Sanitation Agency, Respondent (PDF)
No. 12-01, effective October 17, 2012

In the Matter of the Application for Full-Time Service Credit for Sabbatical Leave of Lynda Koolish, Respondent, and San Diego State University, Respondent (PDF)
No. 09-01, effective November 19, 2009

In the Matter of the Application to Contract with CalPERS by Galt Services Authority, Respondent, and City of Galt, Respondent (PDF)
No. 08-01, effective October 22, 2008

In the Matter of the Application to Rescind Election to Redeposit for Prior Service and Receive Refund of Monthly Payments by Kenneth T. Davenport, Respondent (PDF)
No. 06-01, effective April 19, 2006

In the Matter of the Application for CalPERS Membership Credit by Lee Neidengard, Respondent, and Tri-Counties Association for the Developmentally Disabled, Respondent (PDF)
No. 05-01, effective April 22, 2005

In the Matter of the Application to Purchase Military Service Credit by Leo W. McIntyre, Respondent (PDF)
No. 01-01, effective September 24, 2001

In the Matter of the Appeal for Calculation of Benefits Pursuant to the Employer's Report of Final Compensation, Roy T. Ramirez, Respondent, and City of Indio, Respondent (PDF)
No. 00-06, effective December 20, 2000

In the Matter of the Application for Disability Retirement of Ruth A. Keck, Respondent, and Los Angeles County Schools (Glendora Unified School District), Respondent (PDF)
No. 00-05, effective September 29, 2000

In the Matter of the Appeal of Calculation of Industrial Disability Retirement Benefits Under Government Code Section 21417 of Michael D. Hunter, Respondent, and Department of Motor Vehicles, Respondent (PDF)
No. 00-04, effective July 28, 2000

In the Matter of the Appeal of Approval of Membership of Covina Valley Unified School District, Respondent, and Violeta R. San Pedro, Respondent (PDF)
No. 00-03, effective May 31, 2000

In the Matter of the Appeal for Option 2 Pre-Retirement Death Benefits Payable on Behalf of Steven E. Gilbert, Deceased, by Lory Gilbert, Respondent, and Patricia Gilbert, Both in Her Own Right and on Behalf of Matthew Gilbert and Jonathan Gilbert, Respondent (PDF)
No. 00-02, effective May 31, 2000

In the Matter of the Application for Disability Retirement of Theresa V. Hasan, Respondent, and Department of Corrections (Parole & Community Services Division, Region II), Respondent (PDF)
No. 00-01, effective April 21, 2000

In the Matter of the Application for Reinstatement from Industrial Disability Retirement of Willie Starnes, Respondent, and Department of California Highway Patrol, Respondent (PDF)
No. 99-03, effective January 22, 2000

In the Matter of the Application for Determination of Final Compensation of George Abbond, et. al, Respondents, and City of Huntington Beach, Respondent (PDF)
No. 99-02, effective September 30, 1999

In the Matter of the Application for Retroactive Reclassification to State Industrial Membership from State Safety Member of William R. Smith, Respondent, and California Youth Authority (Youth Training School), Respondent (PDF)
No. 99-01, effective March 31, 1999

In the Matter of the Application Regarding Excess Assets Accounts, of City of Long Beach, et. al., Respondents (PDF)
No. 98-03, effective December 25, 1998

In the Matter of the Appeal of Decreased Level of Retirement Allowance of Harvey H. Henderson, Respondent (PDF)
No. 98-02, effective November 18, 1998

In the Matter of the Appeal Concerning the Application of Government Code Section 21417 to the Industrial Disability Retirement Allowance of Carl R. Robinson, Jr., Respondent, and City of Downey, Respondent (PDF)
No. 98-01, effective June 28, 1998

Subject: Precedential Decisions No: LEG-97-01

WHEREAS, In accordance with Government Code Sections 20120, 9353, 75005, and 50953, the Board of Administration of the California Public Employees' Retirement System (hereafter "the board") is charged with the administration and management of the Public Employees' Retirement System, the Legislators' Retirement System, the Judges' Retirement System, and the Volunteer Firefighters' Length of Service Award System (hereafter collectively "the System");

WHEREAS, In accordance with Government Code Sections 20171, 9354.1, 75105, 50953, 21676, 22601, 22840, 22840.2, 21664, and 22880, the board is also charged with the exclusive control of the administration and investment of the Public Employees' Retirement Fund, the Legislators' Retirement Fund, the Judges' Retirement Fund, the Volunteer Firefighters' Length of Service Award Fund, the Public Employees' Deferred Compensation Fund, the Old Age and Survivors' Insurance Revolving Fund, the Public Employees' Contingency Reserve Fund, the Public Employees' Health Care Fund, the Public Employees' Long-Term Care Fund, and the Annuitants' Health Care Coverage Fund (hereafter collectively "the Fund");

WHEREAS, In accordance with Article XVI, Section 17, of the California Constitution, the board has plenary authority and fiduciary responsibility for the investment of moneys and administration of the System, the board is charged with the sole and exclusive fiduciary responsibility over the assets of the System, and is granted the sole and exclusive responsibility for administering the System in a manner that will assure prompt delivery of benefits and related services to System members and beneficiaries;

WHEREAS, In accordance with Article XVI, Section 17, of the California Constitution, System assets are held in trust and must be used for the exclusive purposes of providing benefits to System members and their beneficiaries and defraying reasonable expenses of administering the System;

WHEREAS, In accordance with Government Code Sections 20134, 22815, 75005, and 9353, the board has been delegated quasi-judicial authority to hear appeals in connection with the rights and obligations of the System toward its members and beneficiaries;

WHEREAS, The board's hearings are evidentiary in nature, conducted in accordance with the Administrative Procedure Act (APA) at Government Code Section 11500 et seq. and the board's procedural regulations (see Cal. Code Regs., Title 2, Secs. 555.1-555.4.);

WHEREAS, The Legislature has specifically granted quasi-judicial entities, such as the board, the power to designate "precedential" appeal decisions pursuant to new Government Code Section 11425.60 in the APA;

WHEREAS, In accordance with Government Code Section 11425.60, the board may designate any appeal decision as precedent if the board determines that it contains a significant legal or policy determination of general application that is likely to recur; and, as implicitly authorized by that statute, the board may consider if the decision contains a clear and complete analysis of the issues in sufficient detail so that interested parties can understand why the findings of fact were made, and how the law was applied;

WHEREAS, In accordance with Government Code Section 11425.60, the board's decision to designate an appeal decision as precedent is not subject to rulemaking nor to judicial review;

Now, therefore be it resolved that:

1. A. The board hereby adopts a policy for designating an appeal decision (or part of a decision) as precedent, pursuant to Government Code Section 11425.60, in accordance with the following procedures:
   1. In determining whether to designate a decision as precedential, as requested or upon its own motion, the board will apply the following standard of review:
      The decision contains a significant legal or policy determination of general application that is likely to recur, and also contains a clear and complete analysis of the issues in sufficient detail so that interested parties can understand why the findings of fact were made, and how the law was applied."
   2. The availability of designating precedential effect will be noticed as part of each month's legal agenda item. This will allow interested parties to submit written comments for or against publication, in connection with their arguments for or against a Proposed Decision. Once a party requests publication, the board may decide the issue immediately, or suspend action on that issue only, giving parties at least 30 days to submit their comments.
   3. In accordance with Government Code Section 11425.60, the board will maintain an index of its precedential decisions, to be updated at least once a year and made available to the public by subscription, as publicized in the California Notice Register.
      In addition, the board will publish the text of its precedential decisions, and make this text available to the public by subscription, and notice the availability of the text and indices thereto by various methods of communication with the membership and affected public.
   4. Once an appeal decision has been designated as precedent, it will bind all future appeals to the extent that the disputed law and issues are the same - or until such time as the board de-publishes the decision, thereby rescinding its designation as binding.
   5. The availability of de-publication will be noticed and circulated in accordance with the procedure for designating precedent. This way, interested parties will be given notice and a chance to comment, as part of each month's legal agenda item.
   6. This will allow interested parties to submit written requests for de-publication - and allow staff to provide a written recommendation. It will also provide a routine method for the board to specify its reason(s) for de-publication.
2. The board's chief executive officer is hereby delegated authority as necessary to implement the procedural aspects of this resolution.
3. This resolution shall be effective as of July 1, 1997.

I hereby certify that on the 19th day of March, 1997, the Board of Administration of the California Public Employees' Retirement System, made and adopted the foregoing resolution.

William Dale Crist, President
Board of Administration
CalPERS

I understand and accept this delegation.
James E. Burton, Chief Executive Officer
CalPERS