Wiebenson v. Board of Trustees

483 S.E.2d 153, 345 N.C. 734, 1997 N.C. LEXIS 183
CourtSupreme Court of North Carolina
DecidedApril 11, 1997
DocketNo. 390PA96
StatusPublished
Cited by4 cases

This text of 483 S.E.2d 153 (Wiebenson v. Board of Trustees) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wiebenson v. Board of Trustees, 483 S.E.2d 153, 345 N.C. 734, 1997 N.C. LEXIS 183 (N.C. 1997).

Opinion

ORR, Justice.

Petitioner Molly Wiebenson was a career state employee, working full-time for the Department of Human Resources as a rehabilitation therapist at the Alcoholic Rehabilitation Center (ARC) in Black Mountain, North Carolina, beginning in 1971. During this time, petitioner was a member of the Teachers’ and State Employees’ Retirement System (Retirement System). In 1981, the General Assembly enacted a work-options program for state employees which was designed to improve employee morale and productivity by providing options for flexible work hours, job sharing, and permanent part-time positions. See N.C.G.S. § 126-75 (1995); 25 NCAC 1C .0509 (February 1996).

In 1984, petitioner and Evelyn Brank, another rehabilitation therapist at the ARC, approached Millard P. Hall, Jr., the director of the ARC, to inquire about sharing one position, each working six months per year. Petitioner and Ms. Brank sought assurances that their retirement eligibility with the State would not be jeopardized by partici[736]*736pating in the job-sharing program. Mr. Hall sent them a memorandum in which he stated that he had “pursued this with the DHR Personnel” and that it would be possible for petitioner and Ms. Brank to share one position. Mr. Hall further stated:

During the six months each of you work per year your Retirement, Insurance and other deductions you may have will be processed through the normal channels of deductions of payroll. During the months you are on leave you will be able to pay to the system your portion of these benefits and be maintained within the Retirement],] Insurance and other benefit packages you are currently enrolled in.

Thereafter, petitioner and Ms. Brank decided to pursue the job-sharing option, and from 31 May 1984 through 19 January 1992, petitioner worked approximately six months per year at the ARC. The Retirement System continued to accept the retirement contributions deducted from petitioner’s paycheck and to provide petitioner with annual statements, showing that she was accumulating retirement credit each year from 1984 through 1990. In fact, the annual retirement account statements sent to petitioner from 1985 through 1990 reflect a percentage of each year of service toward retirement and a cumulative figure. For example, the 1985 statement indicates that petitioner accrued “.5833” years of service toward her retirement in 1985, giving her a total of “13.0833” years of service toward retirement. In 1986, petitioner accumulated “0.500” years of service for a total of “13.5833” years. In late 1991, petitioner began making inquiries to the Retirement System in preparation for retirement. In an 18 November 1991 letter, J. Marshall Barnes, III, deputy director of the Department of State Treasurer, informed petitioner that the job-sharing arrangement did not allow her to participate in the Retirement System, and therefore petitioner had not been a member of the system since May 1984. Mr. Barnes’ letter informed petitioner that the Retirement System would refund all retirement contributions plus interest that petitioner had made during the time she participated in the job-sharing program.

Petitioner petitioned the Office of Administrative Hearings for a contested-case hearing. After a hearing, an administrative law judge entered a recommended decision on 26 May 1994, concluding that petitioner was not an “employee” within the meaning of N.C.G.S. § 135-1(10) during the years that she participated in the job-sharing program because the statute requires a minimum of nine months of [737]*737employment per year. On 11 August 1994, State Treasurer Harlan E. Boyles entered a final agency decision adopting the recommended decision. Superior Court Judge Winner upheld the recommended decision on 7 June 1995. The Court of Appeals reversed and remanded.

The Court of Appeals first agreed that petitioner was not an “employee” eligible to participate in the Retirement System because N.C.G.S. § 135-1(10) required that employees work at least nine months per year. However, the Court of Appeals reasoned that in his memo to petitioner, the ARC director purported to be an agent of the Retirement System, and the Retirement System ratified the director’s representations to petitioner by continuing to accept her contributions to the retirement system and by continuing to send her yearly statements indicating that petitioner was still a participating member of the Retirement System. We conclude, however, that petitioner remained an “employee” under N.C.G.S. § 135-1(10) during the period of time when she participated in the job-sharing program and was working full time. Therefore, we affirm the decision of the Court of Appeals, but for a different reason.

N.C.G.S. § 135-3(1) provides in part that “membership in the Retirement System shall begin immediately upon the election, appointment or employment of a ‘teacher or employee,’ as the terms are defined in this Chapter.” N.C.G.S. § 135-1(10) defines the term “employee.” The statute first provides that “ ‘[e]mployee’ shall mean all full-time employees, agents or officers of the State of North Carolina . . . : Provided that the term ‘employee’ shall not include . . . any part-time or temporary employee.” The statute then contains a series of provisions of inclusion, listing types of employees who are covered by the statute, such as employees of the General Assembly and the National Guard. The final sentence provides that “[e]mployees of State agencies . . . who are employed in permanent job positions on a recurring basis and who work 30 or more hours per week for nine or more months per calendar year are covered by the provisions of this subdivision.”

In Stanley v. Retirement & Health Benefits Div., 55 N.C. App. 588, 286 S.E.2d 643, disc. rev. denied, 305 N.C. 587, 292 S.E.2d 571 (1982), the Court of Appeals reviewed another provision of chapter 135, which dealt with a teacher’s entitlement to death benefits. The Retirement System argued that the provision excluded the petitioner’s recovery of a death benefit. However, the Court of Appeals [738]*738held that the statutory provision in question was a provision of inclusion rather than a provision of exclusion and therefore did not apply to exclude the petitioner’s recovery of a death benefit. The court stated:

We have reviewed the statutory provisions in N.C.G.S. 135 in their entirety and conclude that this interpretation is consistent with the overall policies of the retirement, disability and death benefit scheme. The intent of the statute is not to exclude, but to include state employees under an umbrella of protections designed to provide maximum security in their work environment and to afford “a measure of freedom from apprehension of old age and disability.” Bridges v. Charlotte, 221 N.C. 472, 477, 20 S.E.2d 825, 829 (1942).

Stanley, 55 N.C. App. at 591, 286 S.E.2d at 645.

Similarly, we conclude that the final sentence of N.C.G.S. § 135-1(10) is also a provision of inclusion and does not require that all employees in any situation meet these specifications to qualify. Instead, the sentence serves the purpose of including a certain subset of employees who meet the specifications, such as those working a teacher’s schedule.

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Related

McCaskill v. Department of State Treasurer
695 S.E.2d 108 (Court of Appeals of North Carolina, 2010)
Wiebenson v. Board of Trustees, Teachers' & State Employees' Retirement System
531 S.E.2d 500 (Court of Appeals of North Carolina, 2000)

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Bluebook (online)
483 S.E.2d 153, 345 N.C. 734, 1997 N.C. LEXIS 183, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wiebenson-v-board-of-trustees-nc-1997.