Myers v. West Virginia Consolidated Public Retirement Board

704 S.E.2d 738, 226 W. Va. 738, 2010 W. Va. LEXIS 147
CourtWest Virginia Supreme Court
DecidedNovember 22, 2010
DocketNos. 35470, 35507
StatusPublished
Cited by8 cases

This text of 704 S.E.2d 738 (Myers v. West Virginia Consolidated Public Retirement Board) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Myers v. West Virginia Consolidated Public Retirement Board, 704 S.E.2d 738, 226 W. Va. 738, 2010 W. Va. LEXIS 147 (W. Va. 2010).

Opinion

PER CURIAM:

In this consolidated appeal,1 the West Virginia Consolidated Public Retirement Board (“the Board”) contends that the two circuit courts below erred in finding that the two Appellees, each former West Virginia State employees and members of the Public Employee Retirement System (“PERS”), are entitled to include the amount of their lump sum payments for unused annual leave time in the calculation of their final average salaries. Because the Circuit Court of Kanawha [743]*743County, West Virginia, erroneously interpreted this Court’s prior precedent concerning the presumption of detrimental reliance granted to longtime State employees in considering their rights to certain retirement benefits, and because both circuit courts below should have deferred to the factual findings of the Board regarding actual detrimental reliance, the Court reverses the circuit courts’ rulings and reinstates the decisions of the Board in these two consolidated cases.

As a separate issue, Appellee Rodney A. Myers (“Mr. Myers”) raises a cross-assignment of error, alleging that the Circuit Court of Lewis County, West Virginia, erred in affirming the Board’s refusal to reinstate service credit for two months of work performed by Mr. Myers in the summer of 1972. The Board, however, did not err in this decision and the Court affirms the Circuit Court of Lewis County’s ruling on the cross-assignment of error.

I. FACTS AND PROCEDURAL HISTORY

Because each of the two cases consolidated for the purposes of this appeal has a distinct set of facts, the factual and procedural history of each case is addressed separately.2

A. Appellees Rodney and Diane Myers

Mr. Myers worked as a civil engineer for the West Virginia Department of Transportation, Division of Highways (“DOH”) for over thirty years. He retired effective January 1, 2008, and now receives a monthly retirement payment from the PERS, of which he is considered to be a “member.” At the time of his retirement, Mr. Myers had accumulated 512 hours of unused annual leave. Pursuant to West Virginia Code § 5-5-3 (2005), Mr. Myers requested and received a lump sum payment for those unused hours, which totaled $17,490.00. Also pursuant to that statute, no retirement system contributions were withheld from this lump sum payment.

Following his retirement, Mr. Myers contacted the Board, which is charged with administering the PERS, and requested that his retirement benefits be recalculated. Specifically, he asked that the Board include the amount of the lump sum payment for unused annual leave in his final average salary calculation, which is used to establish a PERS member’s actual pension payments. Mr. Myers further requested that the Board apply the recalculation retroactively with interest.

As will be explained more fully herein, the version of West Virginia Code § 5-5-3 in effect at the date of Mr. Myers’s retirement specifically forbids the inclusion of annual leave lump sum payments in a PERS member’s final average salary calculation. Mr. Myers, however, based his request on a 1988 amendment to that section of the Code, which was in effect for approximately one year, and which permitted the inclusion of annual leave lump sum payments in the final average salary calculation. Mr. Myers had been employed by the State for approximately twelve years prior to the 1988 amendment, and then continued to be employed by the State for approximately twenty years after this section of the Code was amended again to repeal this benefit.

After being notified by the Board’s staff that it was denying his request to include the lump sum payment for his unused annual leave hours in his final average salary calculation, Mr. Myers appealed and a Board hearing officer conducted an administrative hearing. Before the hearing officer, Mr. Myers testified that he was approximately thirty-three-years-old when the 1988 amendment took effect and that he was not eligible for retirement at that time. Mr. Myers explained that he knew of the 1988 amendment when it was enacted because many of his fellow employees elected to take early retirement at that time and, thus, the new benefit was a topic of discussion. He further testified that he could not recall when he became aware of the 1989 amendment and its effective repeal of the 1988 amendment. He admitted that no one from the Board had ever represented to him that he would be entitled to include the lump sum of his unused annual leave time in his final salary calculation. He [744]*744testified, however, that because civil engineers are in high demand, he had received other job offers throughout the duration of his career, and often the other employers had offered him a higher salary. He nevertheless decided to remain employed by the State because of the benefits afforded State employees, including the pension plan.

On May 20, 2008, the hearing officer issued a “Recommended Decision” denying Mr. Myers’s request, which the PERS Board of Trustees adopted at meeting held on September 3, 2008. Mr. Myers then appealed the Board of Trustees’s decision to the Circuit Court of Lewis County. He was joined in his appeal by Appellee Diane M. Myers, his wife and the designated beneficiary of his PERS benefits. After considering briefs and oral argument, the circuit court ruled in favor of Mr. and Mrs. Myers on this issue, ordering the Board to include Mr. Myers’s lump sum payment for unused annual leave in the calculation of his final average salary. It is from this order of the Circuit Court of Lewis County, entered on July 2, 2009, that the Board now appeals.

B. Appellee Richard Burton

Appellee Richard H. Burton (“Mr. Burton”) worked for the State of West Virginia for over thirty-two years, first with the DOH, and then with the West Virginia Bureau of Employment Programs, Unemployment Compensation Division. Like Mr. Myers, when Mr. Burton retired effective February 1, 2005, he had accumulated a significant amount of unused annual leave. Also like Mr. Myers, he requested and received a lump sum payment as compensation for those unused hours. Specifically, Mr. Burton received $12,050.29, from which no retirement system contributions were withheld.

Following his retirement, Mr. Burton similarly requested that the Board include the amount of his lump sum payment in the calculation of his final average salary. Like Mr. Myers, he too based his request on the 1988 amendment to West Virginia Code § 5-5-3. Mr. Burton had worked for the DOH for approximately fifteen years when the 1988 amendment came into effect, and he continued to work for the DOH for approximately sixteen years after it was effectively repealed. Mr. Burton was not eligible for retirement during the period in which the 1988 amendment was in effect.

As with Mr. Myers, the Board’s staff refused Mr. Burton’s request to include the lump sum payment in his final average salary calculation, and Mr. Burton appealed to a Board hearing officer. At an administrative hearing conducted on July 7, 2006, Mr. Burton testified that he was aware of the 1988 amendment when it was enacted because, in his position as an administrative assistant, he prepared the paperwork for “a lot of the individuals who did take advantage of that period.” He testified that he was not aware of the 1989 amendment to the statute, however. Furthermore, Mr.

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Related

King v. New York City Employees Retirement System
212 F. Supp. 3d 371 (E.D. New York, 2016)
Myers v. WV. CONSOL. PUBLIC RETIREMENT BD.
704 S.E.2d 738 (West Virginia Supreme Court, 2010)
Whitlock v. State
198 S.E.2d 865 (Supreme Court of Georgia, 1973)

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Bluebook (online)
704 S.E.2d 738, 226 W. Va. 738, 2010 W. Va. LEXIS 147, Counsel Stack Legal Research, https://law.counselstack.com/opinion/myers-v-west-virginia-consolidated-public-retirement-board-wva-2010.