Curry v. W. Va. Consol. Pub. Ret. Bd.

• Decision Date: 07 October 2015
• Docket Number: No. 14–0846.,14–0846.
• Citation: 778 S.E.2d 637,236 W.Va. 188
• Parties: Arden J. CURRY, II, Petitioner Below, Petitioner v. WEST VIRGINIA CONSOLIDATED PUBLIC RETIREMENT BOARD, Respondent Below, Respondent.
• Court: West Virginia Supreme Court

236 W.Va. 188

778 S.E.2d 637

Arden J. CURRY, II, Petitioner Below, Petitioner

v.WEST VIRGINIA CONSOLIDATED PUBLIC RETIREMENT BOARD, Respondent Below, Respondent.

No. 14–0846.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 2, 2015.

Decided Oct. 7, 2015.

Lonnie C. Simmons, Esq., DiTrapano, Barrett, DiPiero, McGinley, & Simmons, PLLC Charleston, WV, for Petitioner.

J. Jeaneen Legato, Esq., Charleston, WV, for Respondent.

Opinion

WORKMAN, Chief Justice:

This is an appeal by Arden J. Curry, II, (hereinafter “Petitioner”) from a decision of the Circuit Court of Kanawha County affirming a decision of the West Virginia Consolidated Public Retirement Board (hereinafter “Board”) denying the Petitioner's request to participate in the Public Employees Retirement System (hereinafter “PERS”) based upon the conclusion that he was not a full-time employee of the West Virginia Department of Agriculture (hereinafter “WVDA”).

The Petitioner contends that the trial court erred in concluding he did not meet the statutory eligibility requirement of “full time” employment for participation in PERS.

He maintains that this error is demonstrated by the undisputed fact that he worked in a job normally requiring twelve months per year of service, which was the definition of full-time employment for most of the years the Petitioner was employed. Subsequent to thorough review of the briefs, the record presented to this Court, the arguments of counsel, and applicable precedent, this Court affirms the decision of the Circuit Court of Kanawha County.

I. Factual and Procedural History

From 1984 to 2013, with the exception of approximately four years, the Petitioner served as general counsel to the WVDA. He worked from his own private law office and used the telephones, computers, and clerical staff located in his own office. He was also responsible for costs, which were not reimbursed by the WVDA. Although he was not required to keep a record of time spent working for the WVDA, he estimates that he spent approximately 200 to 300 hours per year as general counsel. The Petitioner was required to perform all legal services the WVDA requested of him, and he emphasizes that he was available to the WVDA at all times to provide counsel. While he acknowledges he never worked 1,040 hours or more per year, he contends that he did provide twelve months a year of service, in terms of his availability for advisement purposes.

The WVDA submitted employer and employee contributions to PERS on the Petitioner's behalf for approximately twenty-one years. Employer reports submitted to the Board indicated that the Petitioner was considered a full-time employee by the WVDA. The Board relied upon the employer reporting form and was unaware of the Petitioner's limited hours of employment until the Board received correspondence from the West Virginia Legislative Auditor's Office regarding this issue. By letter dated May 15, 2013, Londa Sabatino, Audit Manager, West Virginia Legislature Joint Committee on Government and Finance, notified the Board's Executive Director, Jeffrey E. Fleck, of her office's belief that the Petitioner was ineligible for participation in PERS. She attached a copy of a legal opinion dated May 8, 2013, drafted by Emma Case, counsel to the Joint Committee, to support the Committee's position.

By letter dated June 17, 2013, the Board notified the Petitioner that he was not eligible to participate in PERS because he was not a full-time employee and did not meet the hourly requirement of 1,040 hours per year of service. By letter dated August 8, 2013, the Petitioner requested an administrative appeal. An administrative hearing was held on October 15, 2013, and on January 17, 2014, the hearing officer issued a decision which recommended that the Petitioner's request to participate in PERS should be denied because his limited hours of employment did not satisfy the definition of full-time employment, as contemplated by West Virginia Code § 5–10–2(11)(2013) and West Virginia Code of State Rules § 162–5–2.3.

The Board issued a final order on March 5, 2014, adopting the recommendations of the hearing officer. The Petitioner appealed that decision to the Circuit Court of Kanawha County, and on July 3, 2014, the circuit court entered an order affirming the Board's final order. The Petitioner now appeals to this Court.

II. Standard of Review

The West Virginia Administrative Procedures Act, specifically West Virginia Code § 29A–5–4(g)(2012), governs the review of contested administrative decisions and specifically provides:

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; or

(2) In excess of 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.

This Court addressed the standard of review that applies to such matters in syllabus point one of Muscatell v. Cline,196 W.Va. 588, 474 S.E.2d 518 (1996):

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.

This Court has also held that “interpreting a statute or an administrative rule or regulation presents a purely legal question subject to de novoreview.” Syl. Pt. 1, Appalachian Power Co. v. Tax Dep't,195 W.Va. 573, 466 S.E.2d 424 (1995); see also Chrystal R.M. v. Charlie A.L.,194 W.Va. 138, 459 S.E.2d 415 (1995).

Addressing the deference to be accorded to an administrative agency, this Court has explained that “[i]n the absence of an error of law, factual findings by an administrative agency should be given great deference, and should not be disturbed on appeal unless clearly wrong or ‘arbitrary and capricious.’ ” Healy v. W. Va. Bd. of Med.,203 W.Va. 52, 55, 506 S.E.2d 89, 92 (1998). Pursuant to the arbitrary and capricious standard, a circuit court reviewing the factual findings of an administrative agency must “not substitute its judgment for that of the hearing examiner.” Woo v. Putnam Cty. Bd. of Educ.,202 W.Va. 409, 411, 504 S.E.2d 644, 646 (1998). As this Court summarized in syllabus point two of Webb v. West Virginia Board of Medicine,212 W.Va. 149, 569 S.E.2d 225 (2002): “ ‘The “clearly wrong” and the “arbitrary and capricious” standards of review are deferential ones which presume an agency's actions are valid as long as the decision is supported by substantial evidence or by a rational basis.’ Syllabus Point 3, In re Queen,196 W.Va. 442, 473 S.E.2d 483 (1996).” However, this Court has further recognized: “While this Court agrees with the proposition that the Board's interpretation is entitled to deference, it is imperative that a reviewing court also consider the possibility ... that the Board's interpretation is erroneous.” West Virginia Consolidated Public Retirement Board v. Wood,233 W.Va. 222, 228, 757 S.E.2d 752, 758 (2014). With these standards as guidance, we proceed to evaluate the arguments of the parties.

III. Discussion

Pursuant to West Virginia Code § 5–10–2(11), an employee entitled to participate in PERS, “means any person who serves regularly as an officer or employee, full time, on a salary basis, whose tenure is not restricted as to temporary or provisional appointment, in the service of ... any political subdivision....” West Virginia Code § 5–10–17(d)(2013) provides: “If question arises regarding the membership status of any employee, the Board of Trustees has the final power to decide the question.”

The Legislature, pursuant to West Virginia Code § 5–10–5(2013), granted the Board “authority to make all rules and regulations” necessary to effectuate PERS. Thus, although a definition of “full time” employment is not provided by statute, the current version of § 162–5–2.3 of the West Virginia Code of State Rulesdefines full-time employment as follows: “Full-time employment.—Employment of an employee by a participating public employer in a position which normally requires twelve (12) months per calendar year service andrequires at least one thousand forty (1,040) hours per calendar year service in that position.” Id.(emphasis added).

Pivotal to the Petitioner's argument, however, the version of that rule in effect at the time of his hiring and until May 2005 defined full-time employment as “[e]mployment of an employee by a participating public employer in a position which normally requires twelve (12) months per year service and/orrequires at least one thousand forty (1,040) hours per year service in that position....” SeeW. Va.C.S.R. § 162–5–7 (1982)¹(emphasis added).

The Petitioner asserts that he satisfied the definition of full-time employment when the rule included the phrase “and/or” because he worked in a position which customarily requires twelve months per year service and worked hours during every calendar month of the years in question.

The Petitioner argues that the 2005 alteration to the full-time employment definition cannot be retroactively applied to him to his detriment. Specifically, relying upon this Court's decision in Booth v. Sims,193 W.Va. 323, 456 S.E.2d 167 (1995), he argues that the Board cannot, by changing the definition of full-time employment, deprive him of his vested rights to participate in PERS. In Booth,this Court addressed an employee's expectation of receiving...