West Virginia Consolidated Public Retirement Board v. Robert Clark ( 2021 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
FILED
January 2021 Term June 14, 2021
released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
No. 20-0350
WEST VIRGINIA CONSOLIDATED PUBLIC RETIREMENT BOARD,
Respondent Below, Petitioner
v.
ROBERT CLARK, ET AL.,
Petitioners Below, Respondents
Appeal from the Circuit Court of Kanawha County
The Honorable Jennifer Bailey, Judge
Civil Action No. 18-AA-9
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
Submitted: April 13, 2021
Filed: June 14, 2021
Ronda L. Harvey, Esq. Lonnie C. Simmons, Esq.
Bowles Rice LLP DiPiero Simmons McGinley & Bastress, PLLC
Charleston, West Virginia Charleston, West Virginia
Counsel for Petitioner Counsel for Respondents
JUSTICE WALKER delivered the Opinion of the Court.
JUSTICE WOOTON concurs in part and dissents in part and reserves the right to file a
separate opinion.
SYLLABUS BY THE COURT
1. “On appeal of an administrative order from a circuit court, this Court
is bound by the statutory standards contained in W.Va. Code § 29A–5–4(a) and reviews
questions of law presented de novo; findings of fact by the administrative officer are
accorded deference unless the reviewing court believes the findings to be clearly wrong.”
Syllabus Point 1, Muscatell v. Cline, 196 W. Va. 588, 474 S.E.2d 518 (1996).
2. “In cases where the circuit court has amended the result before the
administrative agency, this Court reviews the final order of the circuit court and the
ultimate disposition by it of an administrative law case under an abuse of discretion
standard and reviews questions of law de novo.” Syllabus Point 2, Muscatell v. Cline, 196
W. Va. 588, 474 S.E.2d 518 (1996).
3. “‘In the absence of any specific indication to the contrary, words used
in a statute will be given their common, ordinary and accepted meanings.’ Syl. pt. 1, Tug
Valley Recovery Center v. Mingo County Commission, 164 W.Va. 94, 261 S.E.2d 165(1979).” Syllabus Point 1, Thomas v. Firestone Tire & Rubber Co., 164 W. Va. 763, 266
S.E.2d 905 (1980).
4. “The ‘body corporate’ of the public employees retirement system
constitutes a trust. The terms of the trust contract are spelled out in the PERS statute. W.Va.
Code § 5–10–1 et seq.” Syllabus Point 3, Dadisman v. Moore, 181 W. Va. 779, 384 S.E.2d
816 (1988).
i
5. “The PERS Trustees have the highest fiduciary duty to maintain the
terms of the trust, as spelled out in the statute.” Syllabus Point 5, Dadisman v. Moore, 181
W. Va. 779, 384 S.E.2d 816 (1988).
6. “The PERS Board, as trustee of retirement funds, must dispose of
them according to the law. The board has a fiduciary duty to protect the fund and the
interests of all beneficiaries thereof, and it must exercise due care, diligence, and skill in
administering the trust.” Syllabus Point 14, Dadisman v. Moore, 181 W. Va. 779, 384
S.E.2d 816 (1988).
7. “A statute that diminishes substantive rights or augments substantive
liabilities should not be applied retroactively to events completed before the effective date
of the statute (or the date of enactment if no separate effective date is stated) unless the
statute provides explicitly for retroactive application.” Syllabus Point 2, Public Citizen,
Inc. v. First National Bank in Fairmont, 198 W. Va. 329, 480 S.E.2d 538 (1996).
8. “‘A law is not retroactive merely because part of the factual situation
to which it is applied occurred prior to its enactment; only when it operates upon
transactions which have been completed or upon rights which have been acquired or upon
obligations which have existed prior to its passage can it be considered to be retroactive in
application.’ Syl. pt. 3, Sizemore v. State Workmen’s Comp. Comm’r, 159 W.Va. 100, 219
S.E.2d 912 (1975).” Syllabus Point 3, Re: Petition for Attorney Fees and Costs: Cassella
v. Mylan Pharmaceuticals, Inc., 234 W. Va. 485, 766 S.E.2d 432 (2014).
ii
9. West Virginia Code § 5-10-44 (eff. July 1, 2015) is a remedial statute
that may be applied to correct an error in the Public Employees Retirement System, found
at West Virginia Code §§ 5-10-1 to 55, that occurred before July 1, 2015.
10. Under West Virginia Code § 5-10-44(e) (eff. July 1, 2015), the
Consolidated Public Retirement Board shall correct in a timely manner any error that
results in any member, retirant, beneficiary, entity or other individual receiving from the
Public Employees Retirement System, found at West Virginia Code §§ 5-10-1 to 55, more
than he or she would have been entitled to receive had the error not occurred.
iii
WALKER, Justice:
Since 1996, the West Virginia Division of Natural Resources (DNR) has paid
Natural Resources Police Officers a “subsistence allowance” to cover their phone service,
dry cleaning, and meals. Beginning in 1997, DNR reported those payments to the
Consolidated Public Retirement Board (the Board) as part of the officers’ “compensation,”
a key component in the calculation of their retirement annuities under the Public
Employees Retirement System (PERS). In 2014, the Board determined that the subsistence
allowance is not “compensation,” for purposes of PERS, and that the error had impacted
the calculation of officers’ and DNR’s contributions to PERS as well as the amount of
benefits paid to retired officers. The Board selected several means to correct the error,
including recapturing benefit overpayments made to retired officers.
Respondents—current and retired officers and their widowers and widows—
unsuccessfully challenged the benefit determination to the Board. But they prevailed
before the circuit court, which reversed the Board’s ruling. Now, we reverse in part and
affirm in part the circuit court’s order. We find, contrary to the circuit court, that the
subsistence allowance is not “compensation,” under PERS. But, like the circuit court, we
find that the Board may not recover the excess retirement benefits already paid due to the
erroneous treatment of the subsistence allowance as PERS compensation.
I. FACTUAL AND PROCEDURAL HISTORY
Respondents are active or retired law enforcement officers employed by
DNR. 1 West Virginia Code § 20-7-1c (2017) sets officers’ minimum annual salary (base
pay), keyed to years of service and rank. Under § 20-7-1(i) (2015), 2 officers receive a
“subsistence allowance” of $130 each month, in addition to their base pay. The subsistence
allowance is for officers’ “required telephone service, dry cleaning or required uniforms,
and meal expenses while performing their regular duties in their area of primary
assignment[.]” 3 DNR also pays an officer’s actual expenses incurred working outside that
area. 4 The amount of the subsistence allowance does not vary, and it is paid to an officer
when he is working or on paid annual, military, or sick leave. Officers on unpaid leave do
not receive the allowance. 5
1
Respondents also include widows and widowers of officers, who receive
retirement benefits through their deceased spouse’s prior employment.
2
The Legislature has amended this statute frequently. For purposes of this analysis,
we rely on the version of the statute effective May 31, 2015. In 2017, the Legislature
amended subsection (i) so that now officers receive $60 per biweekly pay. W. Va. Code §
20-7-1 (eff. April 8, 2017).
3
W. Va. Code § 20-7-1(i).
4
Id. § 20-7-1(h). So, in a single month, DNR may pay an officer’s base salary, the
subsistence allowance, and actual expenses incurred when he or she worked outside his/her
assigned area (if any).
5
These facts are drawn from the parties’ joint stipulations of fact submitted to the
hearing examiner.
2
The Legislature enacted the subsistence allowance in its near-current form in
1996. 6 Beginning in March 1997, DNR treated the subsistence allowance as part of
officers’ “compensation” under PERS. 7 Section 5-10-2(8) of PERS defines
“compensation” as:
the remuneration paid a member by a participating
public employer for personal services rendered by the member
to the participating public employer. . . . Any lump sum or
other payments paid to members that do not constitute regular
salary or wage payments are not considered compensation for
the purpose of withholding contributions for the system or for
the purpose of calculating a member’s final average salary.
These payments include, but are not limited to, attendance or
performance bonuses, one-time flat fee or lump sum payments,
payments paid as a result of excess budget, or employee
recognition payments. The board shall have final power to
decide whether the payments shall be considered compensation
for purposes of this article[.][8]
For clarity, we refer to such remuneration as “pensionable compensation.”
DNR reports employees’ gross salary to the Board, along with its own and
its employees’ corresponding contributions to PERS. For officers, that gross salary amount
6
The subsistence allowance had first appeared in 1976, 1976 W. Va. Acts 94, then
disappeared in 1981, 1981 W. Va. Acts 1975, before reappearing in 1996. 1996 W. Va.
Acts 198.
7
It appears- from the record that DNR reached this determination based on its -
conclusion that the allowance was subject to state and federal income taxes, Medicare, and
Social Security. The parties agree that the tax treatment of the allowance does not bear on
whether the allowance is pensionable compensation.
8
W. Va. Code § 5-10-2(8) (2016) (emphasis added).
3
included the subsistence allowance. 9 By including the allowance as part of officers’ gross
salary reported to the Board, DNR increased the officers’ pensionable compensation.
Increased pensionable compensation means increased inputs to, and outputs from, PERS.
As for inputs, the amount of an employee’s total, annual pensionable compensation dictates
the amount of money the officers and DNR must contribute to PERS. 10 And as for outputs,
PERS retirement annuities are calculated based on, in part, an employee’s “final average
salary,” a figure derived from an employee’s annual, pensionable compensation. 11 The
Board offers training to employers on what is and what is not pensionable compensation,
and will advise an employer whether a particular payment is subject to PERS upon
request. 12 DNR did not ask the Board whether the allowance was pensionable
compensation.
9
See W. Va. Code 5-10-19 (1990) (amended 2021, eff. July 6, 2021) (obligating
participating employers to file a detailed statement of all service rendered by employees).
10
See id. § 5-10-29 (2015) (stating that for those who became PERS members before
July 1, 2015, “the contributions of a member to the retirement system . . . shall be a sum of
not less than three and five-tenths percent of his or her annual compensation but not more
than four and five-tenths percent of his or her annual compensation”) and § 5-10-31 (2014)
(directing that “the participating public employers’ contributions to the retirement system
. . . shall be a percent of the members’ total annual compensation related to benefits under
this retirement system”).
11
See id. § 5-10-2(13)(A) and (B) (2016).
12
The record does not reflect the last time the Board provided training to DNR’s
payroll personnel.
4
In 2014, officer Jon Cogar asked the Board to estimate his PERS retirement
benefits. The Board audited Mr. Cogar’s file and noticed “atypical” salary payments. The
Board contacted DNR in March 2014 and asked for a report of any special payments made
to Mr. Cogar since June 2006, from which retirement contributions had been withheld.
DNR sent the requested report, in which it broke down those special payments by DNR
payment code, including “135 Subsistence.” The report showed that Mr. Cogar had
received a $65.00 subsistence allowance, bimonthly, from June 2006 until March 2014. At
the Board’s request, DNR prepared a “PERS Inflated Salary Classification Form,” to
permit the Board to determine whether the allowance met the criteria for “compensation”
under PERS.
On April 23, 2014, the Board notified DNR that because the subsistence
allowance had not been paid for personal services rendered, it was not “compensation”
under PERS. The Board directed DNR to stop withholding retirement contributions from
the subsistence allowance. Then, on April 29, 2014, the Board notified Mr. Cogar of its
determination. In July 2014, DNR advised the Board that it disagreed with that
determination. 13 Later, the Board informed DNR and Mr. Cogar that it was taking another
look at whether the subsistence allowance was, in fact, pensionable. The Board also
13
DNR did not contest the exclusion of the subsistence allowance from
compensation for new hires.
5
instructed DNR to “maintain the status quo – i.e., continue treating subsistence payments
received by [officers] as compensation and salary for purposes of PERS.”
In October 2015, the Board informed all DNR law enforcement officers—
active and retired—that it had finally determined that the subsistence allowance was not
pensionable compensation. The Board advised retired officers, including Mr. Cogar, that
they were entitled to be paid back the excess contributions they had made to PERS due to
the erroneous treatment of the allowance as pensionable compensation. The Board also
informed the retired officers that if further inquiry showed that the allowance had been
included in their “final average salary,” 14 then the Board had to (1) recover any benefits
overpaid to the retired officers, either by lump sum, lifetime reduction of benefits, or
reduction of benefits over a set period of time, offset by any excess contributions they may
14
See W. Va. Code § 5-10-2(13).
6
have made to PERS 15 and (2) adjust their retirement annuities prospectively to the correct
monthly annuity amount. 16
Respondents filed a joint administrative appeal and request for declaratory
relief 17 with the Board, arguing, among other things, that the allowance is compensation
for services rendered—meaning it is pensionable compensation—and that the Board’s
determination violated their vested pension rights. The hearing examiner issued a
recommended decision finding that under the plain language of the pertinent statutes, the
allowance was not pensionable compensation and that both the 2011 and 2015 versions of
the PERS error “correction statute,” West Virginia Code § 5-10-44, 18 plus the Board’s
15
At the Board’s direction, DNR stopped depositing employee and employee
contributions to PERS based on the allowance on November 1, 2015. In an example
included in the joint stipulation of facts submitted to the administrative law judge, the
Board’s proposed corrections would have decreased a hypothetical officer’s monthly
annuity from $3,314.94 to $2,715.62 for sixty months, while the officer repaid the
overpayments to PERS. After that sixty-month period, the officer would receive the
“correct” monthly benefit of $3,042.64. Overall, that example officer would owe
$19,620.90 in benefit overpayments because of the erroneous treatment of the allowance
as pensionable compensation.
The Board informed active officers that (1) all erroneous employee contributions
16
would be returned, and (2) subsistence payments would not be treated as pensionable
compensation when (or if) the officers retired from DNR.
17
In the joint stipulations of fact submitted to the hearing examiner, the parties
represented that: “The Applicants have appealed the CPRB’s decision regarding
subsistence allowance pursuant to W. Va. Code R. § 162-2-7 and seek a declaratory
judgment pursuant to W. Va. Code § 29A-4-1. Their appeals have been consolidated by
agreement of the parties.”
18
The language of those various versions of § 5-10-44 is set out, infra.
7
fiduciary duties, permitted it to recover benefit overpayments made to retired Respondents.
The Board adopted the hearing examiner’s recommended order in December 2017, 19 and
Respondents appealed to circuit court. 20
By order entered March 19, 2020, the circuit court reversed the Board’s final
order. First, the court found that the allowance was compensation because Respondents
received those payments so long as they were not on unpaid leave. From that, the circuit
court inferred that the payments were, in fact, “for services rendered,” and so were
pensionable compensation. The court was also persuaded by Respondents’ argument that
the list of exceptions in § 5-10-2(8) did not include the allowance, meaning that the
Legislature hadn’t expressed an intention to keep the allowance out of PERS compensation.
The court rejected the Board’s plain-language arguments and its position that its
interpretation of “compensation” in this case should be afforded deference, as it is the
agency charged with implementing PERS.
19
Respondents moved the Board to order that its ruling applied to active and retired
officers and their widows and widowers who were not parties to the joint appeals. The
Board denied the motion on the basis that class actions are not permitted in administrative
appeals.
20
The hearing examiner issued a single recommended decision. But, the officers
appealing from Board’s final order filed individual appeals with the circuit court, as
recounted in the “Agreed Order,” entered by the circuit court on February 5, 2018. In the
interest of “judicial economy and efficiency,” the circuit court consolidated the individual
appeals into Respondent Robert Clark’s appeal, Civil Action No. 18-AA-9. Attached to
the Agreed Order was list of all appellants whose cases were consolidated into Civil Action
No. 18-AA-9.
8
The court also found that DNR’s inclusion of the allowance in compensation
was not an “employer error,” correctable under § 5-10-44 (2011) because (1) there was no
error to begin with, and (2) DNR’s treatment of the allowance as pensionable compensation
was “deliberate,” so it was excluded from the definition of “employer error.” 21 And, the
court found that the Board had not acted to correct the error in a timely fashion because
DNR had treated the subsistence allowance as a form of PERS compensation since 1997,
and the Board should have discovered at some point earlier than 2014 that the payment was
not pensionable compensation. Finally, the court found that the Board’s attempt to recoup
overpayments from Respondents violated their vested property rights in their pensions. 22
The Board appeals.
II. STANDARD OF REVIEW
Our standard of review in this administrative case is set forth in Syllabus
Points 1 and 2 of Muscatell v. Cline:
1. On appeal of an administrative order from a circuit
court, this Court is bound by the statutory standards contained
in W.Va. Code § 29A–5–4(a) and reviews questions of law
presented de novo; findings of fact by the administrative
21
W. Va. Code § 5-10-2(12) (2016).
22
See Syl. Pt. 7, in part, Booth v. Sims, 193 W. Va. 323, 456 S.E.2d 167 (1995),
modified (Mar. 24, 1995) (“But substantial employee participation in the system does
create an employee’s reliance interest in pension benefits. An employee’s membership in
a pension system and his or her forbearance in seeking other employment prevents the
legislature from impairing the obligations of the pension contract once the employee has
performed a substantial part of his or her end of the bargain and relied to his or her
detriment.”).
9
officer are accorded deference unless the reviewing court
believes the findings to be clearly wrong.[23]
2. In cases where the circuit court has amended the
result before the administrative agency, this Court reviews the
final order of the circuit court and the ultimate disposition by
it of an administrative law case under an abuse of discretion
standard and reviews questions of law de novo.[24]
The parties do not dispute the facts giving rise to this appeal, so we are presented with
questions of law, which we review de novo. 25
III. ANALYSIS
The Board challenges the circuit court’s order on three grounds. First, the
Board contends that the subsistence allowance authorized by West Virginia Code § 20-7-
1(i) is not “compensation,” as that term is defined for purposes of PERS in § 5-10-2(8),
and contrary to the circuit court’s reading of those statutes. Second, the Board contests the
circuit court’s finding that neither the 2005, 2011, nor 2015 version of § 5-10-44, the
23
Syl. Pt. 1, Muscatell v. Cline, 196 W. Va. 588, 474 S.E.2d 518 (1996); see W. Va.
Code § 29A-5-4(g) (1998) (the court “shall reverse, vacate or modify the order or decision
of the agency if the substantial rights of the petitioner or petitioners have been prejudiced
because the administrative findings, inferences, conclusions, decision or order are: (1) In
violation of constitutional or statutory provisions; or (2) In excess of the statutory authority
or jurisdiction of the agency; or (3) Made upon unlawful procedures; or (4) Affected by
other error of law; or (5) Clearly wrong in view of the reliable, probative and substantial
evidence on the whole record; or (6) Arbitrary or capricious or characterized by abuse of
discretion or clearly unwarranted exercise of discretion.”).
24
Syl. Pt. 2, Muscatell, 196 W. Va. at 588, 474 S.E.2d at 518.
25
Id.10
“correction statute,” authorizes it to recoup benefits overpayments to retirants to correct
the inclusion of the subsistence allowance in those retirants’ pensionable compensation.
Third, the Board argues that the circuit court misapprehended this Court’s holding in Booth
v. Sims, and that that case is not applicable to the Board’s action as plan administrator to
enforce the terms of PERS. We address these arguments in order. 26
A. Subsistence Allowance as “Compensation” under PERS
The Legislature created the subsistence allowance in West Virginia Code
§ 20-7-1(i). Under that statute, “[n]atural resources police officers shall receive, in addition
to their base pay salary, a minimum monthly subsistence allowance for their required
telephone service, dry cleaning or required uniforms, and meal expenses while performing
their regular duties in their area of primary assignment in the amount of $130 each
month.” 27 In West Virginia Code § 5-10-2(8), the Legislature defined pensionable
compensation as “the remuneration paid a member by a participating public employer for
personal services rendered by the member to the participating public employer.” These
definitions matter because under the terms of PERS, if a payment from a participating
26
The Board’s brief does not contain assignments of error. See W. VA. R. APP. PRO.
10(c)(2) (requiring the petitioner’s brief to open “with a list of the assignments of error that
are presented for review, expressed in terms and circumstances of the case but without
unnecessary detail”). That nonconformity does not hinder our analysis of the parties’
arguments, however, so we do not linger on this point.
27
Section 20-7-1(i) also specifies that special and emergency natural resource
officers shall not receive the subsistence allowance.
11
public employer to a public employee fits the definition of “compensation” under PERS,
then the payment is treated as part of the employee’s pensionable compensation, increasing
contributions to PERS, the employee’s final average salary, and the retirement annuity.
When a statute plainly expresses the intent of the Legislature, we do not
construe or interpret it. 28 We apply it. 29 After comparing §§ 5-10-2(8) and § 20-7-1(i), we
conclude that those statutes clearly express the Legislature’s intent that the “subsistence
allowance” is not “compensation,” as defined in § 5-10-2(8), and so is not subject to PERS.
The subsistence allowance mandated by § 20-7-1(i) is a bimonthly payment
of $65 paid by DNR “for [officers’] required telephone service, dry cleaning or required
uniforms, and meal expenses while performing their regular duties in their area of primary
assignment.” Section 20-7-1(i) provides that the allowance is to be paid to officers “in
addition to [officers’] base pay salary,” an amount specified in § 20-7-1c. 30 “‘In the
absence of any specific indication to the contrary, words used in a statute will be given
their common, ordinary and accepted meanings.’ Syl. pt. 1, Tug Valley Recovery Center v.
28
See Syl. Pt. 1, Smith v. State Workmen’s Comp. Com’r, 159 W. Va. 108, 219
S.E.2d 361 (1975) (“The primary object in construing a statute is to ascertain and give
effect to the intent of the Legislature.”).
29
See Syl. Pt. 2, State v. Epperly, 135 W. Va. 877, 65 S.E.2d 488 (1951) (“A
statutory provision which is clear and unambiguous and plainly expresses the legislative
intent will not be interpreted by the courts but will be given full force and effect.”).
30
See W. Va. Code § 20-7-1c (setting forth officers’ annual salaries in two charts
entitled, “ANNUAL SALARY SCHEDULE (BASE PAY)”).
12
Mingo County Commission, W.Va., 164 W.Va. 94, 261 S.E.2d 165 (1979).” 31 The common
meaning of “salary” is “[a]n agreed compensation for services[.]” 32 This Court “must
presume that a legislature says in a statute what it means and means in a statute what it says
there.” 33 So, we must presume that the Legislature meant to distinguish the allowance from
the officers’ salary, i.e., their compensation for services, when it said that the allowance is
to be paid to officers “in addition to [their] base pay salary[.]” 34 The Legislature clearly
expressed in § 20-7-1(i) that the allowance is not paid to officers in exchange for their
Syl. Pt. 1, Thomas v. Firestone Tire & Rubber Co., 164 W. Va. 763, 266 S.E.2d
31905 (1980).
32
Salary, BLACK’S LAW DICTIONARY (10th ed. 2004).
33
Martin v. Randolph Cty. Bd. of Educ., 195 W. Va. 297, 312, 465 S.E.2d 399, 414
(1995) (citation omitted).
34
W. Va. Code § 20-7-1(i) (emphasis added). Similarly, we must presume the
Legislature meant what it said when it stated that “[t]he board shall have final power to
decide whether the payments shall be considered compensation for purposes of this
article[.]” W. Va. Code § 5-10-2(8); see also W. Va. Code § 5-10-17(e) (2015) (granting
the Board “final power” to decide question regarding an employee’s status as a PERS
member) and (f) (granting the Board “final authority” to resolve questions regarding a
person’s status as a “leased employee”). This provision emphasizes and reinforces that the
Board operates under “the highest fiduciary duty to maintain the terms of the trust, as
spelled out in the [PERS] statute.” Syl. Pt. 5, in part, Dadisman v. Moore, 181 W. Va. 779,
384 S.E.2d 816 (1988). Practically, the provision means that a participating public
employer’s determination whether a particular payment is pensionable compensation does
not trump the Board’s determination of that question—subject, of course, to judicial
review. W. Va. C.S.R. § 162-2-8 (providing that “[a]n individual aggrieved by a final
decision of the Board has a right of appeal to the Circuit Court of Kanawha County pursuant
to W. Va. Code § 29A-5-4”); see also Syl. Pt. 6, Repass v. Workers’ Comp. Div., 212 W.
Va. 86, 569 S.E.2d 162 (2002) (“‘The judiciary is the final authority on issues of statutory
construction, and we are obliged to reject administrative constructions that are contrary to
the clear language of a statute.’ Syl. pt. 5, CNG Transmission Corp. v. Craig, 211 W.Va.
170, 564 S.E.2d 167 (2002).”).
13
services because it is money paid to officers in addition to their salary. So, the allowance
cannot be “compensation,” as that term is defined in § 5-10-2(8): “the remuneration paid
a member by a participating public employer for personal services rendered by the member
to the participating public employer.” 35
The circuit court construed §§ 5-10-2(8) and 20-7-1(i)—despite those
statutes’ clear language—and we pause to consider the reasoning behind its conclusion that
the allowance is, in fact, compensation for services rendered by officers. 36 The circuit
court reasoned that the subsistence allowance did not fit within the general definition of
payments made to public employees, but which must be excluded from compensation. But,
this construction ignores important parts of the exclusionary language in § 5-10-2(8), which
provides that:
Any lump sum or other payments paid to members that
do not constitute regular salary or wage payments are not
considered compensation for the purpose of withholding
contributions for the system or for the purpose of calculating a
member’s final average salary. These payments include, but
are not limited to, attendance or performance bonuses, one-
35
Id. § 5-10-2(8). Moreover, had the Legislature intended the bimonthly, $65
allowance to compensate officers for services rendered, it could have increased their base
pay salary by that amount.
36
The circuit court also reasoned that because officers do not receive the subsistence
allowance while on unpaid leave, it is necessarily paid in consideration for personal
services. We disagree based on the plain language of § 20-7-1(i).
14
time flat fee or lump sum payments, payments paid as a result
of excess budget, or employee recognition payments.[37]
The first sentence quoted above states that a “lump sum or other payment”
that is not also a “regular salary or wage payment” is not pensionable compensation. 38 The
second sentence of § 5-10-2(8) lists a series of lump sum payments excluded from
compensation, under PERS. But, the Legislature made plain that those lump sum payments
are not the only payments excluded from pensionable compensation when it stated that
excluded payments “include, but are not limited to, attendance or performance bonuses,
one-time flat fee or lump sum payments, payments paid as a result of excess budget, or
employee recognition payments.” 39 We have observed that “the phrase, ‘include, but not
be limited to[,]’ . . . indicates that the examples given are demonstrative, not exclusive.” 40
37
W. Va. Code § 5-10-2(8) (emphasis added).
38
Id. (emphasis added).
39
Id. (emphasis added).
40
Tex. E. Transmission, LP v. W. Va. Dep’t of Env’t Prot., Div. of Mining &
Reclamation, 240 W. Va. 131, 143, 807 S.E.2d 802, 814 (2017) (citing Postlewait v. City
of Wheeling, 231 W. Va. 1, 4, 743 S.E.2d 309, 312 (2012) (observing “Black’s Law
Dictionary (9th Ed. 2009) defines the term ‘include’ as ‘to contain as a part of something,’
and says that the term ‘typically indicates a partial list.... But some drafters use phrases
such as including without limitation and including but not limited to—which mean the
same thing.’ Accordingly, by using the word ‘includes’ in Rule 6(a), this Court was setting
forth only a partial list of legal holidays.”); Davis Mem’l Hosp. v. West Virginia State Tax
Comm’r, 222 W. Va. 677, 684, 671 S.E.2d 682, 689 (2008) (recognizing that “[t]he term
‘includ[es]’ in a statute is to be dealt with as a word of enlargement and this is especially
so where ... such word is followed by ‘but not limited to’ the illustrations given.”
(quotations and citations omitted)).
15
So, the words “include, but are not limited to” in § 5-10-2(8) indicate that the payments
listed there are merely examples of payments excluded from the definition of
“compensation” under PERS.
Section 5-10-2(8) plainly states that a payment may be excluded from
pensionable compensation if the payment is not a “regular salary or wage payment.” The
subsistence allowance is neither of those, and the Legislature said as much when it (1)
described the allowance as a payment to DNR officers “for their required telephone service,
dry cleaning or required uniforms, and meal expenses while performing their regular duties
in their area of primary assignment;” and (2) distinguished it from officers’ base pay salary.
We agree with the reasoning of an Indiana court faced with a similar issue, which found
that a clothing allowance was not remuneration subject to a pension plan: “Admittedly,
the clothing allowance is a form of compensation in that it does relieve the recipient of the
necessity of making clothing expenditures from his usual remuneration. But the annual
cash payment is supplemental to, and not an integral part of, the employee’s regular
salary.” 41
41
Hilligoss v. LaDow, 368 N.E.2d 1365, 1371 (Ind. App. 1977) (emphasis in
original); see also Banish v. City of Hamtramck, 157 N.W.2d 445, 449 (Mich. Ct. App.
1968) (“Had the city of Hamtramck furnished uniforms to be worn by the employees during
their time of service, we doubt whether it would be suggested the value of the uniforms
was compensation. The form of payment is not controlling—whether dollars or coconuts.
What is important is whether the payment is a payment for services rendered or to be
rendered.”).
16
Finally, the circuit court applied two rules of statutory construction to
conclude that the allowance is pensionable compensation. Those rules are ejusdum generis
and noscitur a sociis. Under the first rule, “where general words follow the enumeration
of particular classes of persons or things, the general words, under the rule of construction
known as ejusdem generis, will be construed as applicable only to persons or things of the
same general nature or class as those enumerated[.]” 42 And under the second, “the meaning
of a general word is or may be known from the meaning of accompanying specific
words.” 43
These rules do not support the circuit court’s conclusion for two reasons.
First, ejusdum generis applies only to general words that follow a list of classes or things.
When presented in that order, “general words do not amplify particular terms preceding
them but are themselves restricted and explained by the particular terms.” 44 Here, the
general words, “other payment,” precede the list of lump sum payments, and so are neither
restricted nor explained by the list that follows. Second, “[t]he maxim noscitur a sociis is
only a guide to legislative intent, though, and so, like any rule of construction, does not
42
Syl. Pt. 2, in part, Parkins v. Londeree, 146 W. Va. 1051, 124 S.E.2d 471 (1962).
43
Murray v. State Farm Fire & Casualty Co., 203 W. Va. 477, 485, 509 S.E.2d 1,
9 (1998).
44
Parkins, 146 W. Va. at 1062, 124 S.E.2d at 477; see also ANTONIN SCALIA AND
BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 205 (2012)
(“So, the ejusdem generis canon is properly limited to its traditional application: a series
of words followed by a general.”)
17
apply absent ambiguity, or to thwart legislative intent, or to make general words
meaningless.” 45 As stated above, the Legislature’s intent for the subsistence allowance is
plain: to pay officers for their required telephone service, etc., rather than for services
rendered. 46 The doctrines of ejusdum generis and noscitur a sociis are red herrings. In
sum, contrary to the circuit court, we find that the subsistence allowance paid to officers
under § 20-7-1(i) is not “compensation,” under PERS.
B. Correction of Overpayments
Considering that conclusion, DNR’s inclusion of the allowance in
Respondents’ compensation reported to PERS was error. That error resulted in both
inflated contributions to PERS by DNR and Respondents and inflated final average
salaries. For those Respondents who were paid the allowance after March 1997, and who
45
2A SUTHERLAND STATUTORY CONSTRUCTION § 47:16 (7th ed.) (internal notes
omitted).
46
For this reason, we also reject the circuit court’s conclusion that had the
Legislature intended for the subsistence allowance not to be “compensation” under
§ 5-10-2(8), it would have included specific language to that effect, as it did in West
Virginia Code §§ 5-5-6(c)(3) (2009) (payment for unused sick leave may not be part of
final average salary); 5-10-22(a) (2009) (final average salary does not include any lump
sum payment for unused, accrued leave “of any kind or character”); and 5-5-3 (2004)
(“lump sum payment for unused, accrued leave of any kind or character may not be a part
of final average salary computation”). The Legislature did include specific language
excluding the subsistence allowance from pensionable compensation because it specified
that the allowance was paid for DNR officers’ required telephone service, etc., and did not
otherwise indicate that the allowance was paid to DNR officers for personal services
rendered.
18
then retired sometime after that and before November 1, 2015, the error means that they
have received erroneously high retirement annuity payments.
The parties agree that, under the terms of PERS, the Board must correct
errors, including the erroneous inclusion of the allowance in Respondents’ pensionable
compensation. But, they dispute whether the Board may correct the error at issue in this
case which has resulted in, among other things, overpayments of benefits to certain
Respondents. Resolution of that disagreement hinges on West Virginia Code § 5-10-44,
the PERS error correction statute.
1. West Virginia Code § 5-10-44
Section 5-10-44 was enacted in 1961, amended in 2005 and 2011, and,
finally, rewritten in 2015. The facts of this case span all four iterations of the statute: the
error in 1997 (1961 version), the Board’s realization of the error in 2014 (2011 version),
and the Board’s determination of the error and remedies in October 2015 (2015 version).
According to the circuit court, the 2011 version of the error correction statute applies to
these cases because that was the error correction statute in effect when CPRB “discovered”
the erroneous inclusion of the allowance as pensionable compensation. But, according to
the Board, § 5-10-44, effective July 1, 2015, applies here because the statute is remedial
and so may be applied to correct DNR’s erroneous determination that the allowance is
pensionable compensation, made before the effective date of the 2015 amendment. This
distinction matters when one compares the 2011 and 2015 versions of § 5-10-44. Before
19
2015, the statute did not speak to overpayments. But in 2015, the Legislature added new
language to § 5-10-44 that expressly requires members to return benefit overpayments to
PERS, subject to certain exceptions. 47 For the reasons discussed below, we find that § 5-
10-44 (2015) is a remedial statute, so that its terms may be applied to correct an error in
PERS occurring before the amended statute’s effective date, July 1, 2015.
We have described PERS as both a statute and a trust. “The ‘body corporate’
of [PERS] constitutes a trust. The terms of the trust contract are spelled out in the PERS
statute. W.Va. Code § 5–10–1 et seq.” 48 The Board manages and administers PERS, 49 and
the Trustees have “the highest fiduciary duty to maintain the terms of the trust, as spelled
out in the [PERS] statute.” 50 “The PERS Board, as trustee of retirement funds, must
dispose of them according to the law. The board has a fiduciary duty to protect the fund
47
The Board represents that it has sought repayment from retirants of overpaid
PERS benefits before the Legislature amended § 5-10-44 in 2015. Because we find that
§ 5-10-44(e) may be applied retroactively, subject to the limitations discussed elsewhere
in this opinion, it is not necessary to consider the parties’ arguments regarding the Board’s
authority to do so under earlier versions of the statute. See State ex rel. ACF Indus., Inc. v.
Vieweg, 204 W. Va. 525, 533 n.13, 514 S.E.2d 176, 184 n.13 (1999) (noting that “this
Court cannot issue an advisory opinion with respect to a hypothetical controversy” where
“the statutory problems which the petitioning employers anticipate appear[ed] to be
primarily conjectural”).
48
Syl, Pt. 3, Dadisman, 181 W. Va. at 779, 384 S.E.2d at 816.
49
W. Va. Code §§ 5-10-5 (1990) and 5-10D-1 (2020).
50
Syl. Pt. 5, Dadisman, 181 W. Va. at 779, 384 S.E.2d at 816.
20
and the interests of all beneficiaries thereof, and it must exercise due care, diligence, and
skill in administering the trust.” 51
To that end, the Legislature included in PERS the error correction statute,
§ 5-10-44, requiring the Board to correct errors that result in a person receiving more or
less than he is entitled to under PERS. 52 As enacted in 1961, § 5-10-44 provided that:
Should any change or error in the records of any
participating public employer or the retirement system result in
any person receiving from the system more or less than he
would have been entitled to receive had the records been
correct, the board of trustees shall correct such error, and as far
as is practicable shall adjust the payment of the benefit in such
manner that the actuarial equivalent of the benefit to which
such person was correctly entitled shall be paid.[53]
The 2005 amendments to the statute were modest. 54 The Legislature
maintained in near-identical form the text of the original statute, but added a provision
relating specifically to underpayments to PERS. 55 In 2011, the Legislature again preserved
51
Syl. Pt. 14, id.
52
See 207 W. Va. Acts 2015 (codified at W. Va. Code § 5-10-44); 150 W. Va. Acts
2011 (codified at W. Va. Code § 5-10-44); 201 W. Va. Acts 2005 (codified at W. Va. Code
§ 5-10-44); and 118 W. Va. Acts 1961 (codified at W. Va. Code § 5-10-44).
53
118 W. Va. Acts 1961.
54
201 W. Va. Acts 2005.
55
Id. (“Any employer error resulting in an underpayment to the retirement system
may be corrected by the employee remitting the required employee contribution and the
participating public employer remitting the required employer contribution.”).
21
the original statute’s general charge that the Board correct system errors. 56 It refined the
“payment adjustment” portion of the earlier versions of the statute, specifying that when
“correction of the error occurs after the effective retirement date of a retirant, and as far as
is practicable, the board shall adjust the payment of the benefit in a manner that the actuarial
equivalent of the benefit to which the retirant was correctly entitled shall be paid.” 57 The
Legislature also expanded that portion of § 5-10-44 controlling correction of
underpayments to PERS and added language directing the Board how to handle mistaken
or excess contributions to the system. 58
The Legislature amended § 5-10-44, again, in 2015. 59 It restated the general
error correction provision, so that it now directs that,
General rule: Upon learning of any errors, the board
shall correct errors in the retirement system in a timely manner
whether an individual, entity or board was at fault for the error
with the intent of placing the affected individual, entity and
retirement board in the position each would have been in had
the error not occurred.
56
150 W. Va. Acts 2011.
57
Id.
58
Id.
59
207 W. Va. Acts 2015.
22
In amending § 5-10-44 in 2015, the Legislature also specified in new
subsection (e), “Overpayments from the retirement system,” that “[i]f any error results in
any member, retirant, beneficiary, entity or other individual receiving from the system more
than he would have been entitled to receive had the error not occurred,” then (1) the Board
must “prospectively adjust the payment of the benefit to the correct amount,” where the
“correction of the error occurs after annuity payments to a retirant or beneficiary have
commenced,” and (2) “the member, retirant, beneficiary, entity or other person who
received the overpayment from the retirement system shall repay the amount of any
overpayment to the retirement system[.]” 60 The Board “shall correct the error in a timely
manner.” 61 In full, subsection (e) of § 5-10-44 states that:
Overpayments from the retirement system: If any error
results in any member, retirant, beneficiary, entity or other
individual receiving from the system more than he would have
been entitled to receive had the error not occurred, the board
shall correct the error in a timely manner. If correction of the
error occurs after annuity payments to a retirant or beneficiary
have commenced, the board shall prospectively adjust the
payment of the benefit to the correct amount. In addition, the
member, retirant, beneficiary, entity or other person who
received the overpayment from the retirement system shall
repay the amount of any overpayment to the retirement system
in any manner permitted by the board. Interest shall not
accumulate on any corrective payment made to the retirement
system pursuant to this subsection.
60
W. Va. Code § 5-10-44(e) (2015) (emphasis added).
61
Id.23
These amendments are variations on the central theme of the original, 1961 statute: when
correcting an error in PERS, the Board’s aim is to turn back the clock and so return the
“the affected individual, entity and retirement board” 62 to the position each would have
occupied, but for the system error. 63
“A statute is presumed to be prospective in its operation unless expressly
made retrospective[.]” 64 “A statute that diminishes substantive rights or augments
substantive liabilities should not be applied retroactively to events completed before the
effective date of the statute (or the date of enactment if no separate effective date is stated)
unless the statute provides explicitly for retroactive application.” 65 We have held that
“A law is not retroactive merely because part of the
factual situation to which it is applied occurred prior to its
enactment; only when it operates upon transactions which have
been completed or upon rights which have been acquired or
upon obligations which have existed prior to its passage can it
be considered to be retroactive in application.” Syl. pt. 3,
62
Id. § 5-10-44(a).
63
See Flanigan v. W. Va. Pub. Emp. Ret. Sys., 176 W. Va. 330, 336, 342 S.E.2d
414, 420 (1986).
64
W. Va. Code Ann. § 2-2-10(bb) (2017).
Syl. Pt. 2, Pub. Citizen, Inc. v. First Nat’l Bank in Fairmont, 198 W. Va. 329, 480
65
S.E.2d 538 (1996).
24
Sizemore v. State Workmen’s Comp. Comm’r, 159 W.Va. 100,
219 S.E.2d 912 (1975).[66]
But, “[s]tatutes which do not create new rights or take away vested ones are deemed to be
remedial and are not within the strict application of the rule of presumption against
retroactivity.” 67 “A remedial statute improves or facilitates remedies already existing for
the enforcement or rights of redress of wrongs,” 68 and may “include statutes intended for
the correction of defects, mistakes, and omissions in the civil institutions and the
administration of the state.” 69
We concur with the Board that the Legislature’s 2015 amendments to § 5-
10-44 are remedial 70 and can be applied to correct errors in PERS occurring before the
amended statute’s effective date of July 1, 2015. The 2015 amendments did not create or
diminish substantive rights under PERS; instead, they improved the Board’s ability to
66
Syl. Pt. 3, Re: Petition for Attorney Fees and Costs: Cassella v. Mylan Pharm.,
Inc., 234 W. Va. 485, 766 S.E.2d 432 (2014).
67
Martinez v. Asplundh Tree Expert Co., 239 W. Va. 612, 617, 803 S.E.2d 582, 587
(2017) (internal quotation omitted).
68
Id. at 618, 803 S.E.2d at 588.
69
73 AM. JUR. 2d STATUTES § 7 (1964).
70
Cf. Syl. Pt. 6, State ex rel. Blankenship v. Richardson, 196 W.Va. 726, 474 S.E.2d
906 (1996) (“Though a workers’ compensation statute, or amendment thereto, may be
construed to operate retroactively where mere procedure is involved, such a statute or
amendment may not be so construed where, to do so, would impair a substantive right.”)
(emphasis added).
25
remedy errors in the administration of the trust contract set forth in PERS. 71 In the context
presented here—an error that has, among other things, resulted in a person “receiving from
the system more than he would have been entitled to receive had the error not occurred” 72—
the amendment provides for the return of those overpayments to PERS, meaning that the
Board may recover sums distributed in the past due to a system error. Importantly, the
Board may pursue this remedy only when “a retirant, beneficiary, entity or other individual
receiv[es] from the system more than he would have been entitled to receive had the error
not occurred,” that is, when the recipient of the funds did not have a right under the terms
of PERS to receive them. 73 The statute does not take away a vested right. Rather, it enables
71
See S.B. 342, 85th Leg., Reg. Sess. (W. Va. 2015) (titled, in part, “clarifying
scope, application and requirements for error correction by CPRB”).
72
W. Va. Code § 5-10-44(e).
73
As we found above, the allowance is not, under the terms of PERS, pensionable
compensation, nor has it ever been. Thus, no promise was made upon which
Respondents—active or retired—could have relied to their detriment regarding the
allowance’s status as pensionable compensation. Compare Myers v. W. Va. Consol. Pub.
Ret. Bd., 226 W. Va. 738, 754 n.7, 704 S.E.2d 738, 754 n.7 (2010) (noting that while
petitioner “may have relied on the Board’s erroneous representation that he would receive
service credit for those two months, the Board is statutorily bound by West Virginia Code
§ 5–10–44 to correct errors in the calculation of a PERS member’s service credit. . . . The
statute does not limit this requirement for equitable reasons”) with Curry v. W. Va. Consol.
Pub. Ret. Bd., 236 W. Va. 188, 193, 778 S.E.2d 637, 642 (2015) (employee detrimentally
relied on legislative rule defining “full time” employment that was in effect at the time
petitioner was hired by the West Virginia Department of Agriculture, so that rule, and not
later, amended version applied to determine whether petitioner was entitled to participate
in PERS). See also Booth, 193 W. Va. at 340, 456 .S.E.2d at 184 (“The cynosure, then, of
an employee’s W.Va. Const. art. III, § 4 contract right to a pension is not the employee’s
or even the government’s contribution to the fund; rather, it is the government’s promise
to pay.”) (emphasis in original).
26
the Board to ensure the integrity of PERS and protect the interests of all of its
beneficiaries. 74 For those reasons, we now hold that West Virginia Code § 5-10-44 (eff.
74
The Board contends that the circuit court erred when it found that the DNR’s
inclusion of the subsistence allowance in the Respondents’ pensionable compensation was
a “deliberate act,” and so was not an “employer error” that the Board could correct. See
W. Va. Code § 5-10-2(12) (“‘Employer error’ means an omission, misrepresentation or
violation of relevant provisions of the West Virginia Code or of the West Virginia Code of
State Regulations or the relevant provisions of both the West Virginia Code and of the
West Virginia Code of State Regulations by the participating public employer that has
resulted in an underpayment or overpayment of contributions required. A deliberate act
contrary to the provisions of this section by a participating public employer does not
constitute employer error[.]”).
We agree. Initially, subsection (a) of § 5-10-44 (2015), states that “[u]pon learning
of any errors, the board shall correct errors in the retirement system,” not simply “employer
errors.” Compare W. Va. Code § 5-10-44(a) (2011) (directing the Board to correct “any
change or employer error in the records of any participating public employer . . . result[ing]
in any member . . . receiving from the system more or less that he or she would have been
entitled to receive had the records been correct”).
More to the point, we do not see that DNR’s inclusion of the subsistence allowance
in Respondents’ pensionable compensation was a “deliberate act,” and, therefore, not an
employer error. PERS does not define a “deliberate act.” But, “[u]ndefined words and
terms in a legislative enactment will be given their common, ordinary and accepted
meaning.” Syl. Pt. 6, in part, State ex rel. Cohen v. Manchin, 175 W. Va. 525, 336 S.E.2d
171 (1984). Deliberate means “[i]tentional; premeditated; fully considered.” Deliberate,
BLACK’S LAW DICTIONARY (10th ed. 2009). Here, the parties have not pointed to record
evidence demonstrating that DNR intentionally acted to violate the terms of PERS when it
treated the subsistence allowance as pensionable compensation. The two, 1997 memos
highlighted by Respondents pertain to the method of reporting and payment of the
allowance for tax purposes. While one memo states that a deduction will be made from
the subsistence allowance for retirement, that statement stems from DNR’s conclusion that
the subsistence allowance should be reported as wages. Those memoranda do not support
the conclusion that DNR intentionally, rather than erroneously, treated the subsistence
allowance as pensionable compensation.
“[S]tatutes which relate to the same subject matter should be read and applied
together so that the Legislature’s intention can be gathered from the whole of the
enactments.” Syl. Pt. 3, Smith, 159 W.Va. at 108, 219 S.E.2d at 361. Recall that the
Legislature has appointed CPRB the fiduciary of PERS, W. Va. Code § 5-10-5; authorized
27
July 1, 2015) is a remedial statute that may be applied to correct an error in the Public
Employees Retirement System, found at West Virginia Code §§ 5-10-1 to 55, that occurred
before July 1, 2015.
2. Timely Correction of Overpayments
The Legislature imposed a new obligation upon the Board in 2015: timely
action. 75 Under the general error correction rule stated in subsection (a) of § 5-10-44,
“[u]pon learning of any errors, the board shall correct errors in the retirement system in a
timely manner[.]” In subsection (e), “Overpayments from the retirement system,” the
Legislature stated the “timeliness” requirement differently: “If any error results in any
member, retirant, beneficiary, entity or other individual receiving from the system more
than he would have been entitled to receive had the error not occurred, the board shall
correct the error in a timely manner.” 76 In general subsection (a), the Legislature directed
that timeliness be measured from the point at which the Board learns of an error. 77
the Board correct system errors, id. § 5-10-44; and granted it the final authority to
determine what is, and is not, pensionable compensation. Id. § 5-10-2(8). Taken together,
those provisions require a narrow approach to “deliberate act,” as found in § 5-10-2(12).
For those reasons, we conclude that the circuit court erred when it found that the DNR’s
inclusion of the subsistence allowance in Respondents’ pensionable compensation was a
“deliberate act,” and so not an “employer error” correctable by the Board.
75
See id. § 5-10-44(a) and (e) (2015).
76
Id. § 5-10-44(e).
77
The circuit court found that the Board did not act timely to correct the erroneous
inclusion of the subsistence allowance in Respondents’ pensionable income, citing both
W. Va. Code § 5-10-44(a) and (e). As discussed above, however, the measures of
28
Subsection (e) does not contain similar direction. Instead, it requires the Board to correct
an error resulting in overpayment in a timely manner, period. 78 Therefore, we now hold
that under West Virginia Code § 5-10-44(e) (eff. July 1, 2015), the Consolidated Public
Retirement Board shall correct in a timely manner any error that results in any member,
retirant, beneficiary, entity or other individual receiving from the Public Employees
Retirement System, West Virginia Code §§ 5-10-1 to 55, more than he or she would have
been entitled to receive had the error not occurred.
So, the Board’s ability to correct overpayments made to Respondents
depends on whether the Board’s correction effort is timely under § 5-10-44(e). 79 Like the
circuit court, we find that it is not. We are astonished that the Board did not recognize this
error at any time between March 1997 and April 2014. At that time, while preparing a
benefit estimate for Mr. Cogar, the Board “audited his file, and noticed several months of
timeliness under § 5-10-44(a) and (e) are distinct; the latter is more onerous and pertains
to overpayments from the retirement system, specifically. The circuit court’s analysis,
findings, and the majority of the parties’ argument on appeal bear on the timeliness inquiry
under § 5-10-44(e). So, we limit our review, accordingly, and do not address the timeliness
of other courses of corrective action. See, e.g., W. Va. Code § 5-10-44(d) (2015)
(pertaining to overpayments to the retirement system by an employee).
78
Bullman v. D & R Lumber Co., 195 W. Va. 129, 133, 464 S.E.2d 771, 775 (1995)
(stating that “every word used [in a statute] is presumed to have meaning and purpose, for
the Legislature is thought by the courts not to have used language idly”).
79
Likewise, the Board’s ability to prospectively adjust the payment of the benefit to
the correct amount, after annuity payments to a retirant or beneficiary have commenced,
also depends on the timeliness of the correction, as that term is used in § 5-10-44(e).
29
atypical salary history,” according to the joint stipulation of facts. But, officers had retired
between 1997 and 2014, presenting the Board with opportunities to notice the same
atypicality earlier. Even more concerning, the Board offers no explanation why it audited
that particular file at that particular time, so we are left to conclude that the Board
uncovered the error by happenstance.
The Board contends that it could not have known before 2014 that DNR was
including the allowance in officers’ gross salaries because DNR did not report the
allowance separate from the officers’ pensionable compensation. That argument falls flat.
Under West Virginia Code § 5-10-29(c) (2015), the Board has the authority to tell
participating public employers like DNR what “supporting data” they must provide when
paying members’ contributions into the system. 80 Similarly, § 5-10-19 obligates employers
to file a “detailed statement of all service rendered” by each employee, but, again, “in such
80
W. Va. Code § 5-10-29(c) (2015) (“(c) The officer or officers responsible for
making up the payrolls for payroll units of the state government and for each of the other
participating public employers shall cause the contributions, provided in subsection (b) of
this section, to be deducted from the compensations of each member in the employ of the
participating public employer, on each and every payroll, for each and every payroll period,
from the date the member enters the retirement system to the date his or her membership
terminates. When deducted, each of said amounts shall be paid by the participating public
employer to the retirement system; said payments to be made in such manner and form,
and in such frequency, and shall be accompanied by such supporting data, as the board of
trustees shall from time to time prescribe. . . .”).
30
form as the board shall from time to time prescribe,” along with “such other information
as the board shall require in the operation of the retirement system.” 81
Second, as described in the joint stipulation of facts, the Board offers training
to the payroll personnel of participating employers like DNR, “addressing amounts from
which PERS contributions must or must not be taken.” So, the Board recognizes that
employers’ payroll personnel make foundational decisions about what is and what is not
pensionable compensation, and that they need guidance to do so correctly under the terms
of PERS. Certainly, the issue here—the erroneous inclusion of the allowance in
Respondents’ pensionable compensation—could have been avoided had DNR sought the
Board’s guidance in 1997. But, its failure to do so cannot negate the Board’s fiduciary
duties to maintain the terms of the trust contract set forth in the PERS statute, dispose of
PERS funds according to those terms, and protect the interests of all PERS beneficiaries. 82
The Legislature amended § 5-10-19 in 2021. See 2021 W. Va. Acts 10. The
81
amendment does not change the language quoted above.
82
The Board suggests that the outcome of this case will require it to “audit[] each
and every individual participating in the plan each month in an ongoing basis,” and that it
lacks resources to satisfy that requirement. That is not the holding of this case. And, as
we explained in West Virginia Consolidated Public Retirement Board v. Wood, 233 W. Va.
222, 231 n.12, 757 S.E.2d 752, 761 n.12 (2014), “such policy arguments [are] more
appropriately addressed to the Legislature. This Court’s obligation is to interpret and apply
the provisions of an ambiguous statute, not to address the financial or public policy
underpinnings of such statutory provisions.”
31
In sum, the Board has failed to act in a timely manner to correct system
overpayments that resulted from the erroneous treatment of subsistence allowance
payments as pensionable compensation. Consequently, the Board may not require
Respondents who have received overpayments from PERS due to that error to repay those
amounts. 83 For the same reason—a lack of timeliness, as that term is found in § 5-10-
44(e)—the Board may not prospectively adjust payments to those retirant- and beneficiary-
Respondents to whom annuity payments have already started. 84
IV. CONCLUSION
For the reasons discussed above, we affirm in part and reverse in part the
circuit court’s order and remand for further proceedings.
AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED FOR FURTHER PROCEEDINGS
83
See § 5-10-44(e). Section 5-10-44(e) provides that:
If any error results in any member . . . receiving from
the system more than he would have been entitled to receive
had the error not occurred, the board shall correct the error in
a timely manner. If correction of the error occurs after annuity
payments to a retirant or beneficiary have commenced, the
board shall prospectively adjust the payment of the benefit to
the correct amount.
So, for the same reason of timeliness, the Board may not prospectively adjust
payments to those retirant- or beneficiary-Respondents to whom annuity payments have
already started.
84
Id.
32