Filed 11/21/11




      IN THE SUPREME COURT OF CALIFORNIA


RETIRED EMPLOYEES ASSOCIATION )
OF ORANGE COUNTY, INC.,              )
                                     )
           Plaintiff and Appellant,  )
                                     )                             S184059
           v.                        )
                                     )
COUNTY OF ORANGE,                    )                      9th Cir. No. 09-56026
                                     )                          C.D. Cal. No.
           Defendant and Respondent. )                        CV-07-1301-AG
____________________________________)


        At the request of the United States Court of Appeals for the Ninth Circuit,1
we address the following abstract question: ―Whether, as a matter of California
law, a California county and its employees can form an implied contract that
confers vested rights to health benefits on retired county employees.‖ For the
reasons that follow, we conclude that a county may be bound by an implied
contract under California law if there is no legislative prohibition against such
arrangements, such as a statute or ordinance. (Youngman v. Nevada Irrigation
Dist. (1969) 70 Cal.2d 240, 246.) Although Government Code section 25300 does
require that compensation of county employees be addressed in an ordinance or
resolution, the statute does not prohibit a county from forming a contract with
implied terms, inasmuch as contractual rights may be implied from an ordinance

1      Retired Employees Association of Orange County, Inc. v. County of Orange
(9th Cir. 2010) 610 F.3d 1099; California Rules of Court, rule 8.548.



                                          1
or resolution when the language or circumstances accompanying its passage
clearly evince a legislative intent to create private rights of a contractual nature
enforceable against the county. Whether an implied term creates vested rights, in
the absence of a legislative bar, is a matter of the parties‘ intent.
                                                I
       The backdrop for the question of California law presented by the Ninth
Circuit is a lawsuit filed in 2007 by the Retired Employees Association of Orange
County, Inc. (REAOC), against the County of Orange (County) contesting the
validity of certain changes County has made to health benefits for retired
employees.
       In 1966, County began offering group medical insurance to retired County
employees. County initially calculated premiums separately for active and retired
employees. In 1985, County began combining active and retired employees into a
single unified pool for purposes of calculating health insurance premiums. Retired
employees, as a group, are on average older and more expensive to insure than
active employees; if pooled separately, retirees normally would pay higher
premiums. The single unified pool thus had the effect of subsidizing health
insurance for retirees, in that it lowered retiree premiums below their actual costs,
while raising active employee premiums above their actual costs. County paid a
large portion of the premiums for active employees, but retired employees paid the
majority of their own premiums. County pooled active and retired employees into
a single unified pool without interruption from 1985 through 2007.
       Due to budgetary concerns, County passed a resolution in 2007 splitting the
pool of active and retired employees, effective January 1, 2008. Before passing
the resolution, County negotiated changes to health benefits with labor unions
representing the active employees. County did not negotiate with the retirees.



                                            2
       On November 5, 2007, REAOC filed suit in federal court against County
on behalf of approximately 4,600 retired County employees and sought an
injunction prohibiting County from splitting the pool of active and retired
employees. REAOC conceded that the express provisions of the various
memoranda of understanding (sometimes hereafter MOU) and the Orange County
Board of Supervisors (Board) resolutions were silent as to the duration of the
unified pool. But REAOC nonetheless alleged that County‘s action constituted an
impairment of contract in violation of the federal and state Constitutions, in that
County‘s long-standing and consistent practice of pooling active and retired
employees, along with County‘s representations to employees regarding a unified
pool, created an implied contractual right to a continuation of the single unified
pool for employees who retired before January 1, 2008. REAOC noted, for
example, that a booklet entitled ―Health Plan Choices,‖ which was distributed to
active employees, stated that ―[w]hen you retire from the County you will be
eligible to continue with the health insurance plans‖ and that ―[r]etiree rates are
based on the full monthly premiums for each plan, with adjustments for
[M]edicare enrollment.‖ County, on the other hand, relied on the annual motions
and resolutions of the Board setting health premiums during the relevant period,
each of which specified health insurance rates only for that plan year.
       The district court granted summary judgment for County on all claims.
(Retired Employees Ass’n v. County of Orange (C.D.Cal. 2009) 632 F.Supp.2d
983.) As to the claims of breach of contract and impairment of contract, the court
held that County cannot, as a matter of state law, be liable for any obligation it did
not undertake explicitly through a resolution by the Board.
       REAOC appealed to the Ninth Circuit. The federal appellate court
recognized that REAOC‘s impairment-of-contract claim required a showing ―that
the County entered into an enforceable contract‖ to continue a single unified pool

                                          3
for the lifetimes of the retirees and noted further that ― ‗federal courts look to state
law to determine the existence of a contract.‘ ‖ (Retired Employees Association of
Orange County, Inc. v. County of Orange, supra, 610 F.3d at p. 1102.) The Ninth
Circuit thus asked us for a decision whether, as County contends, ―an implied
contract to which a county is one party cannot confer . . . vested rights‖ to health
benefits in California. (Id. at p. 1101.)
                                                II
       A contract is either express or implied. (Civ. Code, § 1619.) The terms of
an express contract are stated in words. (Civ. Code, § 1620.) The existence and
terms of an implied contract are manifested by conduct. (Civ. Code, § 1621.) The
distinction reflects no difference in legal effect but merely in the mode of
manifesting assent. (1 Witkin, Summary of Cal. Law (10th ed. 2005) Contracts,
§ 102, p. 144.) Accordingly, a contract implied in fact ―consists of obligations
arising from a mutual agreement and intent to promise where the agreement and
promise have not been expressed in words.‖ (Silva v. Providence Hospital of
Oakland (1939) 14 Cal.2d 762, 773.)
       Even when a written contract exists, ― ‗ ―[e]vidence derived from
experience and practice can now trigger the incorporation of additional, implied
terms.‖ ‘ ‖ (Scott v. Pacific Gas & Electric Co. (1995) 11 Cal.4th 454, 463.)
―Implied contractual terms ‗ordinarily stand on equal footing with express terms‘ ‖
(ibid.), provided that, ―as a general matter, implied terms should never be read to
vary express terms.‖ (Carma Developers (Cal.), Inc. v. Marathon Development
California, Inc. (1992) 2 Cal.4th 342, 374.)
       All contracts, whether public or private, are to be interpreted by the same
rules unless otherwise provided by the Civil Code. (Civ. Code, § 1635; see also
M. F. Kemper Const. Co. v. City of L.A. (1951) 37 Cal.2d 696, 704 [―California
cases uniformly refuse to apply special rules of law simply because a

                                            4
governmental body is a party to a contract‖].) In the private sector, it is well
understood that collective bargaining agreements are intended to govern ― ‗a
myriad of cases which the draftsmen cannot wholly anticipate‘ ‖ (Consol. Rail
Corp. v. Railway Labor Executives (1989) 491 U.S. 299, 311-312); that resort may
be had, in appropriate circumstances, to the parties‘ practice, usage, and custom in
interpreting the agreement (ibid.); and that such agreements ―often contain
implied, as well as express, terms‖ (id. at p. 309, fn. 7). Our precedents similarly
find, in the public employment context, that ―[g]overnmental subdivisions may be
bound by an implied contract if there is no statutory prohibition against such
arrangements.‖ (Youngman v. Nevada Irrigation Dist., supra, 70 Cal.2d at p. 246
(Youngman).)
       The certified question from the Ninth Circuit asks us to decide whether
California law prohibits a county and its employees from agreeing, by means of an
implied contract, to confer vested rights to health benefits on retired county
employees. County contends that California law does contain such a prohibition,
and presents in this proceeding a three-pronged argument: (1) that a county
government and its employees cannot form an implied contract; (2) that even if
implied contracts are cognizable in the public employment context, such contracts
cannot create vested rights; and (3) that even if vested contractual rights for county
employees may be implied, such rights cannot include health benefits. We
examine each argument in turn.
                                              A
       In Youngman, the plaintiff employees of the Nevada Irrigation District
claimed they were entitled to merit salary increases under the terms of a salary
schedule that it was the district‘s ― ‗announced practice‘ ‖ to use. (Youngman,
supra, 70 Cal.2d at p. 245.) The plaintiffs claimed, inter alia, that there was an
implied contract between plaintiffs and the district requiring the district to review

                                          5
and advance employees one step in their respective classifications on or about
their employment anniversary date each year. (Id. at pp. 245-246.) The district,
on the other hand, urged that the demurrer to this cause of action be sustained on
the ground the district had only such powers as were expressly granted by statute
(or necessarily included therein), and no specific authority permitted the district to
enter into an implied contract. (Id. at p. 246.) We held, unanimously, that the
general provisions giving the district the power to hire employees and fix their
salaries (Wat. Code, § 21185), to enter into such contracts as necessary to carry
out its purpose (id., § 22230), and ―to perform all acts necessary to carry out fully‖
its assigned function (id., § 22225) included the ability to enter into implied
contracts as well as express contracts, ―since the only significant difference
between the two is the evidentiary method by which proof of their existence and
terms is established.‖ (Youngman, supra, 70 Cal.2d at p. 246.) We then
concluded: ―Governmental subdivisions may be bound by an implied contract if
there is no statutory prohibition against such arrangements.‖ (Ibid.)
       County contends that Youngman does not apply here. It relies on a separate
line of authority, exemplified by Markman v. County of Los Angeles (1973) 35
Cal.App.3d 132 (Markman). In that case, Markman, a deputy sheriff, brought an
action to recover compensation for overtime he was ordered to work by his
superiors over a period of several years. A Los Angeles County ordinance granted
equivalent time off to employees who were compelled to work overtime, but
required that most of this compensatory time off be taken in the same calendar
year in which it was earned.2 Alternatively, the ordinance authorized monetary

2      The ordinance did permit a maximum of 144 hours to be carried over, but
only with the approval of the employee‘s superiors (and even then the time off had
to be used within that next calendar year). (Markman, supra, 35 Cal.App.3d at p.
                                                           (footnote continued on next page)


                                          6
payment for overtime, but only with the advance approval of the county‘s chief
administrative officer. Markman had not obtained prior approval from the chief
administrative officer, nor had he been able to take equivalent time off for nearly
1,200 hours of overtime. (Markman, supra, at pp. 133-134.) The Court of Appeal
recognized that without compensation for the overtime already worked, Markman
―will be penalized for something beyond his control,‖ in that ―during the working
years at issue he would have taken time off equivalent to the overtime hours had
he been permitted to do so by his superiors,‖ yet the court still denied any recovery
as barred by the local ordinance. (Id. at p. 134.) It was in that context that
Markman offered the analysis on which County now relies: ―The terms and
conditions relating to employment by a public agency are strictly controlled by
statute or ordinance, rather than by ordinary contractual standards; and one who
accepts such employment, thereby benefiting in ways denied an employee of a
private employer, must in turn relinquish certain rights which are enjoyed by
private employees [citation], one such disability being that the public employee is
entitled only to such compensation as is expressly provided by statute or
ordinance regardless of the extent of services actually rendered.‖ (Id. at pp. 134-
135, italics added.)
        County argues that the italicized language directly answers the certified
question. In its view, public employee compensation is strictly limited to that
which is expressly provided in a statute or ordinance. County deduces, therefore,
that a county and its employees can never form an implied contract for any kind of



(footnote continued from previous page)

133.) According to the ordinance, overtime that was not converted into
compensatory time off under this formula was ― ‗lost.‘ ‖ (Id. at p. 134.)



                                          7
compensation, including postretirement health benefits. County is mistaken;
Markman did not announce such a broad holding. It held simply that a public
employee who had failed to take equivalent time off within the period specified in
the ordinance or to obtain authorization for overtime pay in the manner specified
in the ordinance was not entitled to recover ―under the provisions of the subject
ordinance . . . regardless of the obvious hardship of such a result.‖ (Markman,
supra, 35 Cal.App.3d at p. 134.)
       Subsequent cases that have reiterated the italicized language (or its
equivalent) have similarly focused on the conflict between the public employee‘s
particular claim and the governing statute or ordinance. In Association for Los
Angeles Deputy Sheriffs v. County of Los Angeles (2007) 154 Cal.App.4th 1536,
for example, there was a conflict between the county code and the written policies
of the sheriff‘s department and the district attorney‘s office as to the type of
vacation hours for which employees could obtain a cash payout. The Court of
Appeal quoted the language from Markman and then concluded ―that to the degree
the department policies did not accurately reflect [the county ordinance], they
were invalid and the employees were entitled only to that compensation set forth
in the ordinance.‖ (Association for Los Angeles Deputy Sheriffs, supra, 154
Cal.App.4th at p. 1549; see also Seymour v. Christiansen (1991) 235 Cal.App.3d
1168, 1177 [classified employee was not entitled to payment for unused vacation
over a period of 21 years; Ed. Code, §45197, subd. (d) permitted the employee to
carry over unused vacation ―for just one year‖]; California School Employees
Assn. v. New Haven Unified School Dist. (1979) 91 Cal.App.3d 919, 923-924
[classified employees were not entitled as of right to holiday pay where the
governing statute gave the district board the authority to elect between monetary
compensation and compensating time off].) These cases are simply instances of
the broader principle that ―the law does not recognize implied contract terms that

                                           8
are at variance with the terms of the contract as expressly agreed or as prescribed
by statute.‖ (Huong Que, Inc. v. Luu (2007) 150 Cal.App.4th 400, 412, emphasis
omitted; see also Shoemaker v. Myers (1990) 52 Cal.3d 1, 23-24 [― ‗insofar as the
duration of [public] employment is concerned, no employee has a vested
contractual right to continue in employment beyond the time or contrary to the
terms and conditions fixed by law,‘ ‖ quoting Miller v. State of California (1977)
18 Cal.3d 808, 813]; Martin v. Henderson (1953) 40 Cal.2d 583, 590-591 [― ‗The
statutory provisions controlling the terms and conditions of civil service
employment cannot be circumvented by purported contracts in conflict
therewith‘ ‖].) Inasmuch as County does not claim that any statute bars the
granting of health benefits to retirees, these cases are inapposite.
       More broadly, we wish to caution that our ―often quoted language that
public employment is not held by contract‖ has limited force where, as here, the
parties are legally authorized to enter (and have in fact entered) into bilateral
contracts to govern the employment relationship. (Olson v. Cory (1980) 27 Cal.3d
532, 537; see also White v. Davis (2003) 30 Cal.4th 528, 565-566; cf. Kemmerer v.
County of Fresno (1988) 200 Cal.App.3d 1426, 1434 [distinguishing Youngman
on the ground ―the district was expressly granted powers to contract with
employees‖].) Under the Meyers-Milias-Brown Act (Gov. Code, §§ 3500-3510),
local governments are authorized to meet and confer with their employees‘
authorized bargaining representative regarding wages, hours, and other terms and
conditions of employment, and to enter into and approve written memoranda of
understanding to memorialize their agreements. (Gov. Code, §§ 3505, 3505.1.)
As San Joaquin County Employees’ Assn., Inc. v. County of San Joaquin (1974)
39 Cal.App.3d 83, 88, observed, ―the entire import of the Meyers-Milias-Brown
Act is to permit as much flexibility in employee-governmental agency relations



                                           9
with regard to all aspects in the employer-employee milieu as a voluntary system
will permit.‖
       Here, County negotiated and approved MOU‘s with its employee
bargaining units during the relevant period. ―When agreements of employment
between the state and public employees have been adopted by governing bodies,
such agreements are binding and constitutionally protected.‖ (Olson v. Cory,
supra, 27 Cal.3d at p. 538; see also Shaw v. Regents of University of California
(1997) 58 Cal.App.4th 44, 55 [―When a public employer chooses instead to enter
into a written contract with its employee (assuming the contract is not contrary to
public policy), it cannot later deny the employee the means to enforce that
agreement‖]; cf. Professional Engineers in California Government v.
Schwarzenegger (2010) 50 Cal.4th 989, 1041 [a state employer‘s unilateral
authority to impose a furlough on represented employees ―is governed by the
terms of the applicable MOU, rather than by any general statutory provision that
applies in the absence of an MOU‖].) Thus, where the employment relationship is
governed by contract, a public employee‘s ―breach of contract claim is not simply
defeated by his status as a public employee.‖ (Sheppard v. North Orange County
Regional Occupational Program (2010) 191 Cal.App.4th 289, 313.) Indeed, ―all
modern California decisions treat labor-management agreements whether in public
employment or private as enforceable contracts (see Lab. Code, § 1126) which
should be interpreted to execute the mutual intent and purpose of the parties.‖
(Glendale City Employees’ Assn., Inc. v. City of Glendale (1975) 15 Cal.3d 328,
339, fns. omitted.) This principle has special force in the context of public
employment, inasmuch as ―the bargaining power of public employees has been
severely limited by statute.‖ (Chula Vista Police Officers’ Assn. v. Cole (1980)
107 Cal.App.3d 242, 248.)



                                         10
       The contractual right alleged in this case, then, does not necessarily depend
on whether there is express language in a statute or ordinance granting REAOC
members the right to a single unified insurance pool during their lifetimes. The
parties here entered into valid bilateral contracts governing compensation.
Whether those contracts (or any other circumstances) established an implied right
to a single unified pool of active and retired employees for purposes of setting
health insurance premiums cannot be answered by resort to the language of
Markman, which describes the procedures for analyzing a claim concerning public
employee compensation in the absence of a contract between the parties. Where
the relationship is governed by contract, a county may be bound by an implied
contract (or by implied terms of a written contract), as long as there is no statutory
prohibition against such an agreement. (Youngman, supra, 70 Cal.2d at p. 246.)
       We thus return to the initial question: Does such a prohibition exist?
County identifies a number of potential candidates, beginning with article XI,
section 1, subdivision (b) of the California Constitution. That provision states in
pertinent part: ―The Legislature shall provide for county powers, an elected
county sheriff, an elected district attorney, an elected assessor, and an elected
governing body in each county. Except as provided in subdivision (b) of Section 4
of this article, each governing body shall prescribe by ordinance the compensation
of its members . . . . The governing body shall provide for the number,
compensation, tenure, and appointment of employees.‖ Although this provision
does state that the county‘s governing body shall prescribe ―by ordinance‖ the
compensation of its members, it does not specify any particular formality to be
used in setting the compensation of its employees. (Cal. Const., art. XI, § 1, subd.
(b).) It states merely that the ―governing body shall provide for‖ employee
compensation. There is no requirement that it do so by ordinance or any other
particular method. (Cf. Dimon v. County of Los Angeles (2008) 166 Cal.App.4th

                                          11
1276, 1286 [finding no constitutional impediment to a county‘s approval of an
MOU by resolution].) Moreover, the purpose of this provision was ― ‗to give
greater local autonomy to the setting of salaries for county officers and employees,
removing that function from the centralized control of the Legislature,‘ ‖ not to
constrain the method by which local governments were to set employee salaries.
(County of Riverside v. Superior Court (2003) 30 Cal.4th 278, 286.)
       Government Code section 25300, on the other hand, does constrain a
county‘s discretion. It reads: ―The board of supervisors shall prescribe the
compensation of all county officers and shall provide for the number,
compensation, tenure, appointment and conditions of employment of county
employees. Except as otherwise required by Section 1 or 4 of Article XI of the
California Constitution, such action may be taken by resolution of the board of
supervisors as well as by ordinance.‖ The first sentence of this statute closely
tracks the final sentence of article XI, section 1, subdivision (b) of the state
Constitution, and thus does not require any particular formality for the fixing of
employee compensation. The second sentence, though, states that except as
otherwise provided by particular provisions of the state Constitution—an
exception that neither party claims applies here—the fixing of employee
compensation ―may‖ be taken by resolution or by ordinance. Although we
ordinarily construe the word ―may‖ as permissive, especially ― ‗[w]hen the
Legislature has, as here, used both ―shall‖ and ―may‖ in close proximity in a
particular context,‘ ‖ we have also said that ―in determining whether the
Legislature intended a statute to be mandatory or permissive, use in the statute of
‗may‘ or ‗shall‘ is merely indicative, not dispositive or conclusive.‖ (Tarrant Bell
Property, LLC v. Superior Court (2011) 51 Cal.4th 538, 542.) As part of the
determination whether a statute is mandatory or permissive, ―we may properly



                                          12
consider other indicia of legislative intent, including relevant legislative history.‖
(Ibid.)
           The legislative history of Government Code section 25300 plainly shows
that the purpose of the provision‘s second sentence was to provide a county board
of supervisors with an alternative to acting by ordinance. At the time, some
county counsel had believed that the terms or conditions of employment ―must be‖
addressed by ordinance. (Sen. Local Gov. Com., Analysis of Assem. Bill No.
4144 (1973-1974 Reg. Sess.) as amended June 18, 1974, p. 1.) Section 25300 was
enacted to expand counties‘ authority to regulate the terms and conditions of
employment, including salaries, not just by ordinance but also by resolution.
(Dimon v. County of Los Angeles, supra, 166 Cal.App.4th at p. 1284 [―the statute
was amended in 1974 to enable a board of supervisors to address employee
compensation by ordinance or resolution instead of by ordinance only‖].) County,
in particular, has mandated that these matters be addressed by resolution: ―The
regulation of the method of employment, terms of employment, conditions of
employment, working hours, leaves of absence, compensation of officers and
employees of the County of Orange, the Orange County Flood Control District
and the Orange County Harbors, Beaches and Parks District shall, effective July 1,
1965, be fixed by resolution of this Board.‖ (Orange County Code, tit. 1, div. 3,
art. 1, § 1-3-2.)
          REAOC contends that its members‘ entitlement to a single unified pool for
purposes of setting health premiums represents deferred compensation. (See
Suastez v. Plastic Dress-Up Co. (1982) 31 Cal.3d 774, 780; accord, Chemical
Workers v. Pittsburgh Glass (1971) 404 U.S. 157, 180 [―the future retirement
benefits of active workers are part and parcel of their overall compensation‖].)
County is therefore correct that a court must look to Board resolutions, including
those resolutions approving or ratifying MOU‘s (see Gov. Code, § 3505.1), to

                                          13
determine the parties‘ contractual rights and obligations. (Van Riessen v. City of
Santa Monica (1976) 63 Cal.App.3d 193, 196 [where the municipal code stated
that payment for unused sick leave ― ‗may be further regulated by resolution or
Memorandum(s) of Understanding,‘ ‖ plaintiff‘s failure to identify a resolution or
memorandum authorizing payment required denial of the claim].) We need not
decide whether County, in light of Government Code section 25300 and the
County ordinance cited above, may form an implied contract with its employees
on matters of compensation though, as REAOC assured us at oral argument that it
was seeking recognition only of an implied term of an existing contract (and not
the recognition of an implied contract). That matters of compensation must be
addressed by resolution does not necessarily bar recognition of implied terms
concerning compensation. Under California law, contractual rights may be
implied from legislative enactments under limited circumstances, as described
further below.
       A resolution by a county board does not only—or even primarily—
establish contract rights. A resolution is also one of the means by which a board
of supervisors exercises its authority to effect policy. (Marquez v. Medical Bd. of
California (2010) 182 Cal.App.4th 548, 557-558; Pinewood Investors v. City of
Oxnard (1982) 133 Cal.App.3d 1030, 1039.) The judicial determination whether a
particular resolution was intended to create private contractual or vested rights or
merely to declare a policy to be pursued until the legislative body shall ordain
otherwise requires sensitivity to ―the elementary proposition that the principal
function of a legislature is not to make contracts, but to make laws that establish
the policy of the [governmental body]. [Citation.] Policies, unlike contracts, are
inherently subject to revision and repeal, and to construe laws as contracts when
the obligation is not clearly and unequivocally expressed would be to limit
drastically the essential powers of a legislative body.‖ (National R. Passenger

                                         14
Corp. v. A. T. & S. F. R. Co. (1985) 470 U.S. 451, 466; accord, Doe v. California
Dept. of Justice (2009) 173 Cal.App.4th 1095, 1107.) ―Thus, it is presumed that a
statutory scheme is not intended to create private contractual or vested rights and a
person who asserts the creation of a contract with the state has the burden of
overcoming that presumption.‖ (Walsh v. Board of Administration (1992) 4
Cal.App.4th 682, 697.)
       California courts have regularly applied this presumption, albeit using
verbal formulations that have varied in minor ways.
       In Taylor v. Board of Education (1939) 31 Cal.App.2d 734, the plaintiff
teacher challenged the applicability to him of a new state law terminating
permanent tenure for teachers reaching the age of 65. In holding that permanent
tenure was a creature of statute and not of contract (and thus could be modified),
the Court of Appeal observed that ― ‗[o]rdinarily it is the function of a Legislature
to make laws and not contracts. It is true, however, that legislative enactments
may contain provisions which, when accepted as the basis of action by individuals,
become contracts between them and the state. It is also equally well established
that the intention of the Legislature thus to create contractual obligations, resulting
in extinguishment to a certain extent of governmental powers, must clearly and
unmistakably appear. . . .‘ ‖ (Id. at p. 746, quoting Campbell v. Aldrich (Or. 1938)
79 P.2d 257, 259.)
       California Teachers Assn. v. Cory (1984) 155 Cal.App.3d 494, which
enforced an implied contract concerning the administration of a retirement fund,
clarified that, despite the presumption, ―a clear manifestation of intent to contract
does not require explicit statutory acknowledgement.‖ (Id. at p. 509.) ―In
California law, a legislative intent to grant contractual rights can be implied from a
statute if it contains an unambiguous element of exchange of consideration by a
private party for consideration offered by the state.‖ (Id. at p. 505.) Indeed,

                                          15
numerous cases ―have implied contractual obligations from the particular texts and
contexts of the statutes at issue.‖ (Ibid.)
       Claypool v. Wilson (1992) 4 Cal.App.4th 646 declined to recognize an
implied promise concerning the allocation of investment earnings in a retirement
fund. Claypool nonetheless acknowledged that contractual obligations could be
implied from a statute, but cautioned ―that the implication of suspension of
legislative control must be ‗unmistakable.‘ ‖ (Id. at p. 670, quoting California
Teachers Assn. v. Cory, supra, 155 Cal.App.3d at p. 509; see also Board of
Administration v. Wilson (1997) 52 Cal.App.4th 1109, 1135 [upholding a finding
of an implied vested right to an actuarially sound public retirement system].)
       From these cases, we conclude generally that legislation in California may
be said to create contractual rights when the statutory language or circumstances
accompanying its passage ―clearly ‗. . . evince a legislative intent to create private
rights of a contractual nature enforceable against the [governmental body].‘ ‖
(Valdes v. Cory (1983) 139 Cal.App.3d 773, 786, quoting United States Trust Co.
v. New Jersey (1977) 431 U.S. 1, 17, fn. 14.) Although the intent to make a
contract must be clear, our case law does not inexorably require that the intent be
express. (Cf. Mo. Rev. Stat. § 432.070 [―No county . . . shall make any contract,
unless . . . such contract, including the consideration, shall be in writing and dated
when made, and shall be subscribed by the parties thereto‖].) A contractual right
can be implied from legislation in appropriate circumstances. (E.g., California
Teachers Assn. v. Cory, supra, 155 Cal.App.3d at p. 505.) Where, for example,
the legislation is itself the ratification or approval of a contract, the intent to make
a contract is clearly shown.
       Amici curiae League of California Cities and California State Association
of Counties contend the doctrine of implied contractual rights has no application
where, as here, the mode of contracting is established by law. Amici curiae rely

                                              16
on Reams v. Cooley (1915) 171 Cal. 150, which said, ―Where the statute
prescribes the only mode by which the power to contract shall be exercised the
mode is the measure of the power. A contract made otherwise than as so
prescribed is not binding or obligatory as a contract and the doctrine of implied
liability has no application in such cases.‖ (Id. at p. 154; see also Miller v.
McKinnon (1942) 20 Cal.2d 83, 91-92 [quoting Reams].) The ―doctrine of
implied liability‖ at issue in Reams, though, was ―an implied contract in an action
on quantum meruit.‖ (Reams, supra, at p. 153.) Reams thus held simply that ―no
implied liability to pay upon a quantum meruit could exist where the prohibition
of the statute against contracting in any other manner than as prescribed is
disregarded.‖ (Id. at pp. 156-157.) In this proceeding, we are presented with a
claim of an implied-in-fact contract, not an implied-in-law or quasi-contract. (Cf.
Katsura v. City of San Buenaventura (2007) 155 Cal.App.4th 104, 109-110.)
Moreover, REAOC, unlike the plaintiff in Reams, does not seek to recover ―under
a contract made in violation of the particularly prescribed statutory mode‖ (Reams,
supra, at p. 154 [a contract not awarded through a competitive bid process]; see
also Miller v. McKinnon, supra, 20 Cal.2d at pp. 87-88 [same]), but claims instead
it has contractual rights that are implied in resolutions duly approved by County.
Reams is therefore inapposite.
       County relies also on Government Code section 3505.1, which authorizes
the representatives of a public agency and the representatives of a recognized
employee organization, when they have reached an agreement, to prepare a written
memorandum of understanding, which shall not be binding, and to present it to the
governing body ―for determination.‖ County focuses on the proviso that the
written memorandum of understanding is not ―binding‖ until it is presented to the
governing body ―for determination.‖ But REAOC does not contend a contract for
certain health benefits exists even though the contract was never presented to the

                                          17
Board; rather, REAOC claims that that the contract was presented to the Board—
and approved by a majority of Board members (Gov. Code, § 25005)—but that it
included terms that are not express. (See Glendale City Employees’ Assn., Inc. v.
City of Glendale, supra, 15 Cal.3d at pp. 339-340.) Government Code section
3505.1 does not categorically bar such a claim. (See generally Gov. Code, §
25207 [―The board may do and perform all other acts and things required by law
not enumerated in this part, or which are necessary to the full discharge of the
duties of the legislative authority of the county government‖].)
       The same analysis disposes of Government Code section 54953, which
requires that a legislative body‘s meetings be open and public, and section
54960.1, which describes the procedures required to nullify any action taken in
violation of the Ralph M. Brown Act open meeting law. REAOC does not seek to
enforce a contract that was approved in violation of the Ralph M. Brown Act. It
seeks instead to enforce the implied terms of a contract that was assertedly
approved in an open meeting.
       Amici curiae League of California Cities and California State Association
of Counties raise legitimate concerns that retiree health insurance benefits, unlike
pensions, are not funded during the retiree‘s working years; that most of these
benefits have been funded on a pay-as-you-go basis; and that the cost of providing
health insurance benefits has skyrocketed in recent years. Amici curiae further
contend that the changes effected by County in 2007 were a measured and
thoughtful response to an ever-increasing unfunded liability. The certified
question, however, is one of law, not of policy. Whether a contractual right for the
continuation of a single unified pool for purposes of setting health insurance
premiums for retired Orange County employees can be implied from Board
resolutions, including those resolutions approving the memoranda of
understanding, is beyond the scope of the certified question, and we do not purport

                                         18
to decide it here. A court charged with deciding whether private contractual rights
should be implied from legislation, however, should ―proceed cautiously both in
identifying a contract within the language of a . . . statute and in defining the
contours of any contractual obligation.‖ (National R. Passenger Corp. v. A. T. &
S. F. R. Co., supra, 470 U.S. at p. 466.) The requirement of a ―clear showing‖ that
legislation was intended to create the asserted contractual obligation (Parker v.
Wakelin (1st Cir. 1997) 123 F.3d 1, 5) should ensure that neither the governing
body nor the public will be blindsided by unexpected obligations.
                                               B
       County argues next that even if contractual rights can be implied from
legislation under certain circumstances, it is nonetheless impermissible to infer
vested contractual rights.3 Neither County nor amici curiae, though, offer any
legal authority for this distinction. (Cf. National R. Passenger Corp. v. A. T. & S.
F. R. Co., supra, 470 U.S. at p. 466 [describing the circumstances in which a
statute may be interpreted to create contractual or vested rights].) In the cases
they have cited, the courts found that the particular benefits at issue were not
vested, not that vesting was categorically barred. Vesting remains a matter of the
parties‘ intent.



3       A benefit is deemed ―vested‖ when the employee acquires an irrevocable
interest in the benefit. The ―vesting‖ of retirement benefits must be distinguished
from the ―maturing‖ of those benefits, which occurs after the conditions precedent
to the payment of the benefits have taken place or the benefits are otherwise within
the control of the employee. (In re Marriage of Fithian (1974) 10 Cal.3d 592,
596, fn. 2, overruled on other grounds, In re Marriage of Brown (1976) 15 Cal.3d
838, 851, fn. 14.) In this proceeding, REAOC contends that a retiree‘s right to the
benefits of a single unified pool vested at the time of retirement, and explicitly
disavows any claim that the benefits vested when the employee began his or her
service.



                                          19
         In San Bernardino Public Employees Assn. v. City of Fontana (1998) 67
Cal.App.4th 1215 (San Bernardino Public Employees), the plaintiff labor
organization challenged the City of Fontana‘s proposal during negotiations on a
new MOU to reduce longevity pay and accrual of personal leave, claiming that
these were vested contractual rights. The Court of Appeal held that these benefits
―could not have become permanently and irrevocably vested as a matter of
contract law, because the benefits were earned on a year-to-year basis under
previous MOU‘s that expired under their own terms.‖ (Id. at p. 1224.) The
plaintiff did not argue—and the Court of Appeal did not consider—whether such
rights could be created by implication. Indeed, the court noted that ―no outside
statutory source gives the employees additional protection or entitlement to future
benefits‖ in that particular case (id. at p. 1225), while acknowledging that a vested
right could be ― ‗conferred by statute or other valid regulation‘ ‖ (id. at p. 1223,
quoting Butterworth v. Boyd (1938) 12 Cal.2d 140, 150) ― ‗when the statutory
language and circumstances accompanying its passage clearly ―. . . evince a
legislative intent to create private rights of a contractual nature enforceable against
the State‖ ‘ ‖ (San Bernardino Public Employees, supra, 67 Cal.App.4th at p.
1223).
         County‘s position is further undermined by California League of City
Employee Associations v. Palos Verdes Library Dist. (1978) 87 Cal.App.3d 135,
which implied vested rights to certain pay, vacation, and sabbatical benefits that
were based on longevity. The Court of Appeal upheld the trial court‘s finding that
these benefits ―had been an inducement to remain employed with the district, and
were a form of compensation which had been earned by remaining in
employment.‖ (Id. at p. 140.) Although we agree with the criticism by some state
and federal courts that the California League analysis was deficient in failing to
focus explicitly on ―the legislative body‘s intent to create vested rights‖ or the

                                          20
plaintiff‘s ―heavy burden‖ to demonstrate that intent (see San Diego Police v. San
Diego Retirement System (9th Cir. 2009) 568 F.3d 725, 740; accord, San
Bernardino Public Employees, supra, 67 Cal.App.4th at pp. 1222-1223), none of
this criticism purports to quarrel with the underlying theory in California League
that public employee benefits, in appropriate circumstances, could become vested
by implication. (See San Diego Police, supra, at p. 740; San Bernardino Public
Employees, supra, at p. 1223; see also Lawrence v. Town of Irondequoit
(W.D.N.Y. 2002) 246 F.Supp.2d 150, 166-169 [whether the personnel policies and
procedures manual, adopted by resolution, created a vested right to health benefits
could not be determined on summary judgment].)
       In Sappington v. Orange Unified School Dist. (2004) 119 Cal.App.4th 949,
the retiree plaintiffs claimed a vested right to free health insurance through a
preferred provider organization (PPO) health benefits plan. The school district
had offered a free PPO plan for a period of years but, in 1998, instituted a ― ‗buy-
up-charge‘ ‖ for the PPO plan, while continuing to offer a health maintenance
organization plan at no cost. (Id. at pp. 951-952.) The Court of Appeal
determined that the policy adopted by the board of education, which had stated
only that the district ― ‗shall underwrite the cost of the District‘s Medical and
Hospital Insurance Program‘ for eligible retirees‖ (id. at p. 954), did not grant the
retirees a vested right to free PPO coverage. In reaching its conclusion, the court
relied on dictionary definitions and common understandings of the word
―underwrite,‖ extrinsic evidence of the parties‘ course of conduct, and the absence
of any evidence that the retirees had a reasonable expectation of free lifetime PPO
coverage. (Id. at pp. 954-955.) The Sappington court thus did not hold that vested
benefits could never be implied in the public employee context. Indeed, its
analytical approach belies any such interpretation.



                                          21
       REAOC asserts that the single unified pool, which reduces the cost of
health insurance premiums as compared to those based on a pool of retirees alone,
is a form of deferred compensation and thus vested when its members retired.
(See Suastez v. Plastic Dress-Up Co., supra, 31 Cal.3d at p. 780; accord, Navlet v.
The Port of Seattle (Wn. 2008) 194 P.3d 221, 224, 231 [implying a vested right to
lifetime health and welfare benefits for employees who reached retirement age
during the term of the collective bargaining agreement].) Whether that claim is
valid and whether, in particular, REAOC‘s members had a contractual right to be
part of a single unified pool with active employees for purposes of establishing
health insurance premiums that vested when they retired, is beyond the scope of
the certified question. However, as with any contractual obligation that would
bind one party for a period extending far beyond the term of the contract of
employment, implied rights to vested benefits should not be inferred without a
clear basis in the contract or convincing extrinsic evidence.
                                              C
       Finally, County argues that even if vested contractual rights may be implied
from legislation, no such rights may be implied with respect to health benefits.
County relies on the California Employees Retirement Law of 1937 (Gov. Code,
§ 31450 et seq.; CERL) and focuses specifically on Government Code section
31692, which provides in relevant part that ―[t]he adoption of an ordinance or
resolution pursuant to Section 31691 shall give no vested right to any member or
retired member . . . .‖ (Italics added.) Section 31692 further provides that ―the
board of supervisors or the governing body of the district may amend or repeal the
ordinance or resolution at any time except that as to any member who is retired at
the time of such an amendment or repeal, the amendment or repeal shall not be
operative until ninety (90) days after the board or governing body notifies the
member in writing of the amendment or repeal.‖

                                         22
       Government Code section 31692 is clear that no vested rights are created
by ―the adoption of an ordinance or resolution pursuant to Section 31691,‖ which
in turn authorizes a county board of supervisors by ordinance (or a specified
district by ordinance or resolution) to ―provide for the contribution by the county
or district from its funds . . . toward the payment of all or a portion of the
premiums on a policy or certificate of life insurance or disability insurance . . . or
toward the payment of all or part of the consideration for any hospital service or
medical service corporation, including any corporation lawfully operating under
Section 9201 of the Corporations Code, contract, or for any combination thereof,
for the benefit of any member heretofore or hereafter retired or his or her
dependents. At least one of these plans shall include free choice of physician and
surgeon.‖ (Gov. Code, § 31691, subd. (a).) But the precise relationship between a
―hospital service or medical service corporation . . . contract,‖ as specified in
Government Code section 31691, subdivision (a), and ―health benefits,‖ as
specified in the certified question from the Ninth Circuit, is less clear. REAOC
points out that a separate law, not mentioned by Government Code section 31692,
authorizes the legislative body of a local agency, including a county, to provide
―health and welfare benefits‖ to its employees and retired employees ―subject to
conditions as may be established by it‖ (Gov. Code, § 53201, subd. (a), italics
added) and to pay all or a portion of such premiums for ―any one or more of the
following: hospital, medical, surgical, disability, legal expense or related benefits
including, but not limited to, medical, dental, life, legal expense, and income
protection insurance or benefits, whether provided on an insurance or a service
basis, and includes group life insurance . . . .‖ (Gov. Code, § 53200, subd. (d),
italics added.)
       REAOC contends that the anti-vesting language in Government Code
section 31692 therefore does not apply to health insurance benefits, since such

                                           23
benefits are authorized by Government Code section 53201 and not by section
31691. (See California Physicians Service v. Garrison (1946) 28 Cal.2d 790, 810
[a health service corporation is not engaged in the business of insurance]; see
generally Songstad v. Superior Court (2001) 93 Cal.App.4th 1202, 1208-1209
[―The use of a term in a statute addressing a subject, and omitting that term and
using a different term in a similar statute addressing a related subject, shows a
different meaning was intended in the two statutes‖].) REAOC points out further
that the nature and scope of health and welfare benefits under section 53201 are
explicitly entrusted to the discretion of the local legislative body. REAOC adds,
moreover, that health insurance benefits provided under section 53201 have been
found to be vested benefits, notwithstanding the anti-vesting language of section
31692. (See, e.g., Thorning v. Hollister School Dist. (1992) 11 Cal.App.4th 1598,
1602 [upholding claim of retired district board members to vested rights to health
insurance benefits provided under § 53201]; 67 Ops.Cal.Atty.Gen. 510 (1984)
[school district may not discontinue health and life insurance benefits provided
under § 53201 of retired board members or of current board members during their
terms].)
       County, which does not grapple with the difference in language between
Government Code sections 31691, subdivision (a) (―any hospital service or
medical service corporation . . . contract‖) and 53200, subdivision (d) (―hospital,
medical, surgical . . . benefits including . . . medical . . . insurance or benefits,
whether provided on an insurance or a service basis‖), insists nonetheless that the
anti-vesting language of Government Code section 31692 ―plainly applies‖ to the
benefits here. Moreover, neither party discusses what relationship, if any, exists
between a ―hospital service or medical service corporation . . . contract,‖ as
specified in Government Code section 31691, subdivision (a), and a ― ‗[h]ealth



                                            24
care service plan,‘ ‖ as defined by Health and Safety Code section 1345,
subdivision (f).
       The interrelationship of these various provisions is not immediately
apparent. However, we need not decide the precise scope of benefits
contemplated by Government Code section 31691, subdivision (a), because
County‘s reliance on the anti-vesting language in Government Code section 31692
fails for a different reason: the vested benefit REAOC is seeking to preserve in
this proceeding is not a ―contribution by the county . . . from its funds . . . toward
the payment of all or a portion‖ of the consideration for any hospital or medical
service corporation contract. (Gov. Code, § 31691, subd. (a).) REAOC is seeking
to preserve a particular methodology by which the health benefit premiums of
active and retired employees are calculated. That the pooling of active and retired
employees may have the effect of elevating the insurance premiums for active
employees over what they would be if the active employees were in a separate
pool does not establish that County made a contribution from its funds toward the
payment of any service corporation contracts. Section 31691, subdivision (a)
applies not to the mere provision of certain health benefits (cf. Gov. Code,
§ 53201, subd. (a) [―The legislative body of a local agency . . . may provide for
any health and welfare benefits for the benefit of its officers, employees, [and]
retired employees . . . .‖ (italics added)]), but only to the ―contribution by the
county . . . from its funds . . . toward the payment of all or a portion‖ of them. A
county‘s selection among permissible methods of calculating health insurance
premiums, like its decision to allow retirees to participate in a group insurance
plan, has certain effects on the level of premiums, but does not itself qualify as a
contribution by the county from its funds toward payment of the premiums that are
actually charged.



                                          25
       It is true that County, during the relevant period, entered into MOU‘s with
active employees under which County agreed to pay a large portion of the
premiums for active employees—and thus effectively subsidized a portion of the
retiree premiums. But, as County acknowledges, REAOC has never claimed a
vested right to this contribution. Indeed, REAOC does not argue that County must
continue to make any contributions toward the payment of active employee
premiums. Rather, REAOC argues that health premiums for active and retired
employees, however they are paid, must be equal. Accordingly, Government
Code section 31692 does not compel an answer of ―no‖ to the certified question.


                                              III
       In response to the Ninth Circuit‘s inquiry, we conclude that, under
California law, a vested right to health benefits for retired county employees can
be implied under certain circumstances from a county ordinance or resolution.
Whether those circumstances exist in this case is beyond the scope of the question
posed to us by the Ninth Circuit.
                                                        BAXTER, J.
WE CONCUR:

CANTIL-SAKAUYE, C.J.
KENNARD, J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
LIU, J.




                                         26
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Retired Employees Association of Orange County Inc. v. County of Orange
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding XXX – on request pursuant to rule 8.548 Cal. Rules of Court
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S184059
Date Filed: November 21, 2011
__________________________________________________________________________________

Court:
County:
Judge:

__________________________________________________________________________________

Counsel:

Rosen Bien & Galvan, Ernest Galvin; Moscone, Emblidge & Sater, G. Scott Emblidge, Rachel J. Sater and
Michael P. Brown for Plaintiff and Appellant.

Peter H. Mixon, Gina M. Ratto, Patricia K. McBeath, Howard L. Schwartz and Jennifer G. Krengel for
California Public Employees‘ Retirement System as Amicus Curiae on behalf of Plaintiff and Appellant.

Law Offices of Robert J. Bezemek, Robert J. Bezemek and Patricia Lim for The California Federation of
Teachers, The California Community College Independents Organization and The Fresno United Retirees
Association as Amici Curiae on behalf of Plaintiff and Appellant.

Lewis, Feinberg, Lee, Renaker & Jackson, Jeffrey Lewis, Bill Lann Lee, Andrew Lah and Sacha Crittenden
Steinberger for California Retired County Employees Association, Sonoma County Association of Retired
Employees and Retiree Support Group of Contra Costa County as Amici Curiae on behalf of Plaintiff and
Appellant.

Nicholas S. Chrisos, County Counsel, Teri L. Maksoudian, Deputy County Counsel; Meyers, Nave,
Riback, Silver & Wilson, Arthur A. Hartinger, Jennifer L. Nock and J. Scott Smith for Defendant and
Respondent.

Renne Sloan Holtzman Sakai, Jonathan V. Holtzman, K. Scott Dickey and Steve Cikes for League of
California Cities and California State Association of Counties as Amici Curiae on behalf of Defendant and
Respondent.

Hanson Bridgett, Raymond F. Lynch, Sarah D. Mott and Caroline B. Burnett for the County of Sonoma
and the County of Contra Costa as Amici Curiae on behalf of Defendant and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Ernest Galvan
Rosen Bien & Galvan
315 Montgomery Street, 10th Floor
San Franicsco, CA 94104-1823
(415) 433-6830

Arthur A. Hartinger
Meyers, Nave, Riback, Silver & Wilson
555 12th Street, Suite 1500
Oakland, CA 94607
(510) 808)-2000

Jonathan V. Holtzman
Renne Sloan Holtzman Sakai
350 Sansome Street, Suite 300
San Francisco, CA 94104
(415) 678-3800
