Linda Birchfield-Modad v. WV Consolidated Public Retirement Board ( 2022 )

FILED
November 3, 2022
STATE OF WEST VIRGINIA released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Linda Birchfield-Modad,
Petitioner Below, Petitioner
vs.) No. 20-0747 (Kanawha County 19-AA-24)
West Virginia Consolidated Public Retirement Board,
Respondent Below, Respondent
MEMORANDUM DECISION
Petitioner Linda Birchfield-Modad appeals the September 1, 2020, order of the Circuit
Court of Kanawha County which affirmed Respondent West Virginia Consolidated Public
Retirement Board’s (“Board”) decision reducing her retirement service credit years in the Teachers
Retirement System (“TRS”). 1 The Board filed a brief in support of the circuit court’s order.
Upon consideration of the standard of review, the briefs, the appendix record, and oral
argument, the Court finds the circuit court clearly erred in affirming the Board’s decision.
Accordingly, this case satisfies the “limited circumstance” requirement of Rule 21(d) of the Rules
of Appellate Procedure and is appropriate for reversal and remand by memorandum decision.
I. Factual and Procedural History
The Board is the statutorily designated administrator of nine separate and distinct West
Virginia public pension plans, including the TRS. W. Va. Code § 5-10D-1. It is undisputed that
Petitioner and her employer, the West Virginia College of Graduate Studies (“COGS”), 2 made
contributions to TRS from 1982 until the time of her retirement.
In June 1981, Petitioner was hired as a secretary for COGS and was stationed on the
campus of Concord University. At the time, she was classified as a permanent part-time employee,
working twenty-four hours per week, Monday through Thursday. 3 In September 1981, COGS
1
Petitioner is represented by Lonnie C. Simmons, Esq. The Board is represented by J.
Jeaneen Legato, Esq.
2
We note that originally COGS was under the control of the West Virginia Board of
Regents, but such control was transferred to Marshall University in 1996.
3
Petitioner testified before the Board’s hearing officer that, among her job duties, she:
1
informed Petitioner that she was entitled to participate in TRS as part of her employment, and then
subsequently enrolled her in the retirement system. 4 In December 1992, Petitioner was promoted
to a full-time position, but her job duties remained the same.
Throughout the 1980s and early 1990s, Petitioner was apparently classified as a “Secretary
II,” though at least one internal employment document from 1991 also refers to her as an “Admin.
Sec.”, presumably referring to “administrative secretary.” Also of note, in 1992, the University
System of West Virginia noticed its employees of its plans to alter the classification system from
Secretary I to IV to a new hierarchy including Office Assistant, Secretary, Administrative
Secretary, Executive Secretary, and Staff Associate. Ultimately, in July 1994, Petitioner was
reclassified as an Administrative Secretary.
Petitioner first sought to retire in January 2017, after thirty-six years of public employment.
After submitting an inquiry to the Board to determine whether she was eligible for retirement, the
Board responded that there “had been an error in the years of service credit report by her employer”
surrounding the 1982 to 1993 period. Specifically, the Board found that Petitioner was not eligible
to participate in TRS during that time period because she was a part-time, nonteaching employee.
Under the law in effect at the time, only full-time nonteaching members or part-time teaching
members were eligible to participate in TRS. 5 The Board informed her that it was correcting said
error by reducing her years of service for the 1982 to 1993 period from 9.264 years to 0.636 years.
Petitioner requested an administrative appeal of the Board’s decision. After a hearing
before the Board’s hearing officer, her appeal was denied on November 27, 2017. The hearing
officer reasoned that Petitioner was ineligible to participate in TRS during the years in question
insofar as she was a part-time nonteaching member of the public school system. Petitioner
appealed that decision to the circuit court, and the matter was subsequently remanded for
consideration of additional evidence — namely evidence pertaining to Petitioner’s work duties.
After considering that evidence, the Board denied Petitioner’s appeal on March 12, 2019, setting
forth the same reasoning that Petitioner was ineligible to participate in TRS as a part-time
nonteaching member of the public schools. Petitioner once again appealed to the circuit court, and
the court affirmed the Board’s decision by order dated September 1, 2020. This appeal followed.
II. Standard of Review
registered students, proctored examinations, coded and scored
exams, assisted a professor in a study referred to as Project
Challenge, went around to promote COGS, answer[ed] the
telephone, sold books, made drawings for special education classes,
set up equipment for the professors, typed for the professors,
performed clerical work, and reserved classrooms for professors.
4
The parties agree that neither the Board nor any of its staff communicated to COGS or
Petitioner that she was eligible to participate in TRS at that time.
5
As discussed infra, the Legislature amended West Virginia Code § 18-7A-3 in 1986 to
require teaching members to also be full-time employees to be eligible to participate in TRS.
2
In reviewing appeals of administrative orders from circuit court, we apply de novo the
same statutory standard employed by the circuit court. Specifically, we have held:
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.
Syl. Pt. 1, Muscatell v. Cline, 196 W. Va. 588, 474 S.E.2d 518 (1996). The relevant statutory
standard of review set out in the West Virginia Administrative Procedures Act, W. Va. Code §§
29A-5-1 to -5, states:
The court may affirm the order or decision of the agency or remand
the case for further proceedings. It 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;
(2) In excess of the statutory authority or jurisdiction of the agency;
(3) Made upon unlawful procedures;
(4) Affected by other error of law;
(5) Clearly wrong in view of the reliable, probative, and substantial
evidence on the whole record; or
(6) Arbitrary and capricious or characterized by abuse of discretion
or clearly unwarranted exercise of discretion.
Id. § 29A-5-4(g).
With these standards in mind, we proceed to address the parties’ arguments on appeal.
III. Analysis
Before setting out the parties’ arguments on appeal, we find it necessary to provide the
legal context in which this case arises. From the time of its creation in 1941, the TRS has made a
distinction between “teaching” and “nonteaching” members. Specifically, nonteaching members
have always been required to be employed on a full-time basis in order to be eligible for
participation in TRS. Teaching members, on the other hand, could participate while employed on
a part-time basis until the Legislature altered the system in 1986 to require all employees to be
employed on a full-time basis in order to participate in TRS.
The present matter hinges entirely upon whether Petitioner was a teaching or nonteaching
member in 1982 when she began making contributions to TRS. If the former, she was eligible to
participate; if the latter, she was not. Below, the Board determined that Petitioner was a
nonteaching member because she was employed in a secretarial capacity, and as such, she was
ineligible to participate in TRS while employed on a part-time basis. The circuit court affirmed
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this determination.
On appeal, Petitioner argues, among other things, 6 that she was a teaching member during
the years in question such that she was eligible to participate in TRS while employed on a part-
time basis. The Board counters that Petitioner does not meet the definition of “teacher” set out in
West Virginia Code § 18-7A-3 (1975), 7 meaning she was ineligible to participate in the retirement
system while not a full-time employee. Upon review, we agree with Petitioner that, on the facts
of this case, she met the definition of “teacher” provided in the statute.
As noted above, this case concerns eligibility for participation in TRS, which is governed
by two related statutes. The first, West Virginia Code § 18-7A-35 (1975), concerns nonteaching
employees and provides, in relevant part:
Nonteaching employees shall mean all persons, except teachers
regularly employed for full-time service by the following
educational agencies: (a) Any county board of education, (b) the
state board of education, (c) the West Virginia board of regents, and
(d) the teachers’ retirement board.
Such nonteaching employees shall be entitled to all the rights,
privileges and benefits provided for teachers by this article, upon the
same terms and conditions as are herein prescribed for teachers.
Id. § 18-7A-35(a)-(b) (emphasis added).
The plain language of this statute excepts “teachers” from its application. Under the
statutory language in effect at the times relevant to this case, teachers (as specifically defined in
the statute) were eligible to participate in TRS if employed on a part-time basis. This is explained
clearly in West Virginia Code § 18-7A-3, which provides:
“Teacher” shall include the following persons, if regularly
employed for at least half-time service: (a) Any person employed
for instructional service in the public schools of West Virginia; (b)
principals; (c) public school librarians; (d) superintendents of
schools and assistant county superintendents of schools; (e) any
county school attendance director holding a West Virginia teacher’s
certificate; (f) the executive secretary of the retirement board; (g)
members of the research, extension, administrative or library staffs
of the public schools; (h) the state superintendent of schools, heads
6
We note that Petitioner also challenges the Board’s reliance on the “error correction
statute,” West Virginia Code § 18-7A-3(10), to reduce her years of service. Because we find that
Petitioner’s years of service should not have been reduced at all, we need not address this
argument.
7
We apply the version of the statute in effect at the time Ms. Birchfield-Modad began
contributing to TRS.
4
and assistant heads of the divisions under his supervision, or any
other employee thereunder performing services of an educational
nature; (i) employees of the state board of education who are
performing services of an educational nature; (j) any person
employed in a nonteaching capacity by the state board of education,
the West Virginia board of regents, any county board of education,
the state department of education or the teacher’s retirement board,
if such person was formerly employed as a teacher in the public
schools; (k) all classroom teachers, principals and educational
administrators in schools under the supervision of the state
commissioner of public institutions; (l) employees of the state board
of school finance if such person was formerly employed as a teacher
in the public schools.
“Members of the administrative staff of the public school” shall
include deans of instruction, deans of men, deans of women, and
financial and administrative secretaries.
“Members of the extension staff” of the public schools shall include
every agricultural agent, boys’ and girls’ club agent, and every
member of the agricultural extension staff whose work is not
primarily stenographic, clerical or secretarial.
Id. (emphasis added.)
Petitioner argues that she met the definition of “teacher.” She contends that she was a
member of the “administrative staff of the public schools” under § 18-7A-3(g) insofar as that class
of individuals is defined to include “administrative secretaries” and she was an administrative
secretary during the years in question. We agree. 8
In full, the relevant portion of § 18-7A-3 provides that “teacher” includes “members of the
research, extension, administrative or library staffs of the public schools[.]” The same code section
then goes on to explain that “‘[m]embers of the administrative staff of the public school’ shall
include deans of instruction, deans of men, deans of women, and financial and administrative
secretaries.” Id. (emphasis added). In their respective orders, the Board and the circuit court set
forth several explanations justifying their conclusion that Petitioner was not an “administrative
secretary” under this definition. Upon review, we find each of those arguments unavailing.
We will begin with the circuit court’s interpretation of the foregoing statutory language.
The court, apparently believing the language to be ambiguous, endeavored to ascertain the
legislative intent behind the words “administrative secretary.” We have held that “[w]here the
language of a statute is clear and without ambiguity the plain meaning is to be accepted without
8
Because we agree with Petitioner’s first argument, we need not address her alternative
argument that she fell within the confines of § 18-7A-3(j) insofar as she was “any person employed
in a nonteaching capacity by . . . the West Virginia board of regents[.]”
5
resorting to the rules of interpretation.” Syl. Pt. 2, State v. Elder, 152 W. Va. 571, 165 S.E.2d 108(1968). Moreover, we defer to the plain language of an unambiguous statute to ascertain the
Legislature’s intent. See Hammons v. W. Va. Office of Ins. Comm’r, 235 W. Va. 577, 584, 775
S.E.2d 458, 465 (2015). Finally, we have long held that “[g]enerally the words of a statute are to
be given their ordinary and familiar significance and meaning, and regard is to be had for their
general and proper use.” Syl. Pt. 4, State v. Gen. Daniel Morgan Post No. 548, Veterans of Foreign
Wars, 144 W. Va. 137, 107 S.E.2d 353 (1959).
Instead of affording this language its plain, familiar meaning — that a secretary is an
individual who performs common secretarial duties — the circuit court and the Board reasoned
that “administrative secretaries” refers to cabinet-level secretaries with some modicum of decision-
making authority. In support of this conclusion, the court reasoned that “the criteria listed in
subsections (a) – (l) describe professional, supervisory, or high-level positions of authority” such
that a part-time secretary would be out of place among them. When one reads the statute in full,
this reasoning is unpersuasive.
First, cabinet-level secretaries are already provided for in different subsections of § 18-7A-
3 — specifically subsection (k) which extends to “educational administrators” and subsection (h)
which extends to “heads and assistant heads of divisions under the direction of the state
superintendent[.]” Second, when examining the list of persons included alongside administrative
staff in subsection (g), there is no logical reason for the Legislature to have included cabinet-level
secretaries with library staff, researchers, and extension staff.
In order to support its reasoning the circuit court looked beyond the definition of
“administrative staff of the public school” to the wholly separate definition for “extension staff of
the public schools” to determine that the Legislature must have intended to exclude from the
definition of “teacher” any employee whose duties are “primarily stenographic, clerical or
secretarial.” W. Va. Code § 18-7A-3. Presumably, the court believed this to be appropriate under
this Court’s direction that “[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 v. State Workmen’s Compensation Com’r, 159 W. Va. 108, 219
S.E.2d 361 (1975). While we agree that related statutes should be read in pari materia, we must
give significance to the fact that the Legislature separately defined “administrative staff” and
“extension staff” in the same statute. In doing so, the Legislature consciously chose to explicitly
exclude secretarial employees of the extension staff, but did not do the same in its definition of
“administrative staff.” Rather, it did precisely the opposite and explicitly included secretaries in
that definition.
We have long recognized that “[i]t is not for this Court to arbitrarily read into [a statute]
that which it does not say. Just as courts are not to eliminate through judicial interpretation words
that were purposely included, we are obliged not to add to statutes something the Legislature
purposely omitted.” Barber v. Camden Clark Mem’l Hosp. Corp., 240 W. Va. 663, 671, 815
S.E.2d 474, 482 (2018)(quoting Banker v. Banker, 196 W. Va. 535, 546-47, 474 S.E.2d 465, 476-
77 (1996)). Similarly, we have held that “[a] statute . . . may not, under the guise of ‘interpretation,’
be modified, revised, amended or rewritten.” Syl. Pt. 1, Consumer Advoc. Div. v. Pub. Serv.
Comm’n, 182 W. Va. 152, 386 S.E.2d 650 (1989). Here, under the guise of interpretation, the
circuit court effectively rewrote the definition of “administrative staff of the public school” to
6
exclude persons from that definition who the Legislature explicitly included: secretaries. That was
outside of the realm of interpretation and constituted clear legal error.
Given the foregoing, we conclude that the definition of “administrative staff of the public
school” is not ambiguous. That definition explicitly includes “administrative secretaries” which
are not, as the circuit court concluded, cabinet-level secretaries. Rather, the plain language, when
taken in context, refers to auxiliary or supporting employees, as evidenced by the fact that the other
types of employees in subsection (g) also constitute such supporting staff. The only outstanding
question for this Court is whether Petitioner fell into that category during the 1982 to 1993 period
in which she was making contributions as a part-time employee. We conclude that she did and
that the lower tribunals clearly erred in finding otherwise.
The Board hinged its determination (to which the circuit court deferred) that Petitioner did
not fit within this definition on the fact that she was not officially classified as an “Administrative
Secretary” during the years in question. 9 As a preliminary matter, we disagree that the use of the
term “administrative secretary” in West Virginia Code § 18-7A-3 necessarily refers to the
employment classification “Administrative Secretary” which, as yet, remains undefined by the
Legislature in either the relevant statutory scheme or the West Virginia Code of State Rules. 10
That said, even assuming, arguendo, the statutory language referred to the employment
classification rather than the colloquial understanding of “administrative secretary,” there is
sufficient evidence in the record for this Court to determine that, on the facts of this case, Petitioner
was an administrative secretary during the relevant years.
First, while the Board is technically correct that Petitioner was classified as a “Secretary
II” from 1983 until July 1994, a review of the record reveals that, at least internally, she was also
referred to by the human resources department as an “Admin. Sec.” in October 1991 while still
officially classified as a Secretary II. Moreover, the record includes a Memorandum from the
University System of West Virginia in 1992 noticing employees of its intent to transition from the
Secretary I to IV classification system to a new hierarchy that included: “Office Assistant,
Secretary, Administrative Secretary, Executive Secretary, and Staff Associate.” This gives rise to
the inference that the position “Administrative Secretary” did not technically exist with regard to
Petitioner from 1982 until that transition was effectuated. As such, it would have been technically
impossible for her to be classified as an “Administrative Secretary” prior to that transition, so
excluding her from TRS on that basis alone would be suspect. Moreover, given that Petitioner
was already being referred to internally as an administrative secretary prior to the transition — and
was ultimately classified as an Administrative Secretary after the transition — it stands to reason
that she was already performing the duties of a person who would have been appropriately
classified as an Administrative Secretary throughout her employment. The uncontroverted facts
presented to the lower tribunals support this conclusion because Petitioner testified that she
performed exactly the same tasks during her employment from the time she was hired in 1981 to
9
Rather, the appendix record indicates that Petitioner received that classification in July
1994.
10
To the extent the employer may have defined this term, such definition is neither found
in the appendix record nor have the parties cited to such a definition in their briefs.
7
the time she sought to retire. Specifically, she stated below that, in addition to general clerical
work, she registered students for classes, proctored, coded and scored exams, assisted in an
academic study, engaged in promotional work for COGS, sold books to students, and made
drawings for special education classes. Her testimony is confirmed by documentation in the record
listing her job duties and evaluating her performance. In the context of this case, these tasks clearly
exceed standard clerical functions. When coupled with the additional facts mentioned above, we
can only conclude that Petitioner was an administrative secretary within the definition of “teacher”
in West Virginia Code § 18-7A-3. As such, under the version of the statute then in effect, she was
eligible to participate in TRS as a part-time employee. The circuit court and the Board’s findings
to the contrary were clearly wrong, and we now reverse those determinations.
IV. Conclusion
For the foregoing reasons, we reverse the Circuit Court of Kanawha County’s September
1, 2020, order affirming the Board’s decision reducing Petitioner’s years of service credits.
Further, we remand this matter with directions to enter an order reflecting her full years of service
credits.
Reversed and remanded with direction.
ISSUED: November 3, 2022
CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice William R. Wooton
Judge Robert E. Richardson sitting by temporary assignment
DISQUALIFIED:
Justice C. Haley Bunn
8