Cable v. POLICE AND PENSION RETIREMENT BD.

• Decision Date: 29 June 2001
• Docket Number: No. 93,447.,93,447.
• Citation: 2001 OK CIV APP 99,31 P.3d 392
• Parties: In the Matter of John Clarence CABLE, Robert Ray Frantz, Melvin D. Martin, Bobby Ray Merrill, James Henry Thomas, George Driever, George Anderson Guerrero, Larry Don Hammett, Jessie Lee Neil, James Gordon Wheatley, and Marie Crowell, Widow of George S. Mitchell, Deceased, Plaintiffs/Appellants/Counter-Appellees, v. STATE of Oklahoma ex rel. the OKLAHOMA POLICE PENSION AND RETIREMENT BOARD, Defendant/Appellee/Counter-Appellant.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

31 P.3d 392

2001 OK CIV APP 99

In the Matter of John Clarence CABLE, Robert Ray Frantz, Melvin D. Martin, Bobby Ray Merrill, James Henry Thomas, George Driever, George Anderson Guerrero, Larry Don Hammett, Jessie Lee Neil, James Gordon Wheatley, and Marie Crowell, Widow of George S. Mitchell, Deceased, Plaintiffs/Appellants/Counter-Appellees, v. STATE of Oklahoma ex rel. the OKLAHOMA POLICE PENSION AND RETIREMENT BOARD, Defendant/Appellee/Counter-Appellant.

No. 93,447.

Court of Civil Appeals of Oklahoma, Division No. 4.

June 29, 2001.

Stephen J. Merrill, James A. Williamson, Tulsa, for Plaintiffs/Appellants/Counter-Appellees.

Honorable Drew Edmondson, Attorney General, Steven K. Snyder, Assistant Attorney General, Oklahoma City, for Defendant/Appellee/Counter-Appellant.

Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 4.

TAYLOR, J.

¶ 1 In this appeal from a decision of the district court reviewing a decision of the Oklahoma Police Pension and Retirement Board (Board), Plaintiffs challenge the district court's denial of their request for interest on military service credit that Board had denied them. Board counter-appeals, challenging the district court's determination that Plaintiffs are entitled to military service credit toward their retirement benefits, pursuant to 72 O.S. Supp.1997 § 67.13a. Having reviewed the record and applicable law, we find that the district court erred in denying Plaintiffs' request for interest, but that it correctly held that Plaintiffs are war veterans within the meaning of § 67.13a. Therefore, we affirm in part, reverse in part, and remand for further proceedings.

¶ 2 Plaintiffs, retired police officers, had served in and retired from different branches of the military before becoming police officers. On May 4, 1998, they filed an application with Board to receive credit toward their pensions as war veterans, pursuant to 72 O.S. Supp.1997 § 67.13a. Following a hearing, Board denied the request for credit, finding that, although Plaintiffs had served during some of the periods of wartime listed in § 67.13a, they were not entitled to credit because none of them had sustained a service-connected disability of 20% or greater. Plaintiffs appealed Board's decision to the district court, challenging Board's denial of credit and seeking interest on the denied retirement benefits. The district court reversed Board's decision, finding Plaintiffs are war veterans entitled to credit pursuant to § 67.13a. However, the district court denied Plaintiffs' request for interest. Plaintiffs appeal the district court's denial of interest, and Board counter-appeals the district court's finding that Plaintiffs are entitled to credit.

PLAINTIFFS' ENTITLEMENT TO MILITARY SERVICE CREDIT

Statute of Limitations

¶ 3 Board argues that Plaintiffs' claims for credit are barred by the statute of limitations. When Plaintiffs appealed to the district court, Board had the duty to transmit the record to the district court for review, 75 O.S.1991 § 320.¹ Moreover, with regard to its counter-appeal to this court, Board had the duty to designate those portions of the record that are necessary for review of their statute of limitations argument. See Rules 1.28, 1.76(b), Supreme Court Rules, 12 O.S. Supp.2000, ch. 15, app. We find nothing in the record presented to us by Board to indicate that the statute of limitations issue was presented at the Board hearing.² We will not consider issues that were not presented to the Board. See City of Bixby v. State ex rel. Dep't of Labor, 1996 OK CIV APP 118, n. 4, 934 P.2d 364, 367 (appellate court would not consider issue that had not been presented to agency or district court); Seely v. Oklahoma Horse Racing Comm'n, 1987 OK CIV APP 61, ¶ 11, 743 P.2d 685, 690 (appellate court would not consider issue that had not been presented to administrative agency). Because we find nothing in the record to indicate that the statute of limitations argument was presented at the Board hearing, we will not address Board's argument on this issue.³

The Meaning of § 67.13a

¶ 4 Board also argues that the district court erred in giving military service credit to Plaintiffs.⁴ This issue requires statutory construction, which is a question of law; thus, we review the district court's determination de novo, giving no deference to its findings. Wilson v. State ex rel. Dep't of Public Safety, 2000 OK CIV APP 28, ¶ 10, 998 P.2d 1241, 1243.

¶ 5 To begin, we must look at the set of statutes entitled the "War Veterans Commission of Oklahoma — Revolving Fund," 72 O.S.1991 & Supp.1997 §§ 67.11 through 67.15. These statutes are included in the Soldiers and Sailors Act, which was enacted "to provide benevolent services by the state for the care and protection of `ex-service persons.'" McNeill v. City of Tulsa, 1998 OK 2, ¶ 12, 953 P.2d 329, 332. Section 67.13, authorizes the War Veterans Commission to "make expenditures or loans . . . for emergency financial aid in the maintenance or support of honorably discharged war veterans."

¶ 6 The particular statute in controversy here, 72 O.S. Supp.1997 § 67.13a, defines the phrase "war veterans," as used in § 67.13, as honorably discharged persons who served in the Armed Forces during various periods of wartime.⁵ Section 67.13a confers certain benefits on honorably discharged war veterans, such as tax exemptions, special permits, and veterans' preferences for state employment. The crux of the controversy in this case arises from the last paragraph of § 67.13a, which provides, in pertinent part, as follows:

War veterans, as defined above, shall receive maximum benefits available for each year of creditable service, not to exceed five (5) years, for active military service for retirement benefits in the retirement systems within the State of Oklahoma . . . . The provisions of this act shall include military retirees, whose retirement was based only on active service, that have been rated as having twenty percent (20%) or greater service-connected disability by the Veterans Administration or the Armed Forces of the United States.⁶

¶ 7 Based on the last sentence of § 67.13a, Board argues that only those veterans who have a 20% or greater service-connected disability are entitled to military service credit. We disagree. Board's focus is too narrow and basically ignores the remaining language of § 67.13a.

¶ 8 The primary goal of statutory construction is to ascertain the legislative intent in light of the statute's general purpose and object. Messer-Bowers Co., Inc. v. State ex rel. Okla. Water Resources Bd., 2000 OK 54, ¶ 18, 8 P.3d 877, 882. In ascertaining legislative intent, we first look to the language of the statute and presume that the legislature has expressed its intent and intended what it expressed. Id.; see also McNeill, 1998 OK 2, ¶ 9, 953 P.2d at 332.

In the interpretation of statutes, courts do not limit their consideration to a single word or phrase in isolation to attempt to determine their meaning, but construe together the various provisions of relevant legislative enactments to ascertain and give effect to the legislature's intention and will, and attempt to avoid unnatural and absurd consequences. Words and phrases of a statute are to be understood and used not in an abstract sense, but with due regard for context and they must harmonize with other sections of the act to determine the purpose and intent of the legislature.. . . The subject matter and purpose of a statute are material to ascertaining the meaning of a word or phrase used and that language should be construed to be harmonious with the purpose of the act, rather than in a way which will defeat it. . . .

Id. at ¶ 11, 953 P.2d at 332 (citations omitted).

¶ 9 Also relevant to statutory construction under the particular facts of this case is the general rule that retirement and pension plans and statutes relevant thereto are to be liberally construed in favor of the pensioner. Dangott v. ASG Industries, Inc., 1976 OK 131, ¶ 12, 558 P.2d 379, 383; City of Ardmore ex rel. Firemen's Relief and Pension Bd. v. Ozment, 1970 OK 54, ¶ 12, 467 P.2d 502, 504; Roberts v. Board of Trustees of Firemen's Relief & Pension Fund, 1956 OK 17, ¶ 17, 292 P.2d 408, 411. The liberal construction of pension statutes is especially significant when addressing military service credit, because laws regarding "employees who enter the armed forces in time of war or emergency are favored." Quam v. City of Fargo, 77 N.D. 333, 43 N.W.2d 292, 295 (1950) (quoting Gibson v. City of San Diego, 25 Cal.2d 930, 156 P.2d 737, 740 (1945)); see also Raney v. Board of Admin. of Retirement Sys., 201 Tenn. 283, 298 S.W.2d 729, 732 (1957) (liberally construing statute allowing credit for military service).

¶ 10 Viewing the language of § 67.13a in its entirety and the evident intent of the legislature, Board's interpretation of § 67.13a cannot stand. Section 67.13a specifically states that the "words `war veterans' . . . shall be construed to mean such honorably discharged persons" as those who served in the Armed Forces during certain periods of wartime. It is undisputed that Plaintiffs all served during some of the periods of wartime listed. Section 67.13a further provides that "[w]ar veterans, as defined above, shall receive maximum benefits available for each year of creditable service, not to exceed five (5) years, for active military service for retirement benefits in the retirement systems within the State of Oklahoma." (Emphasis added.) The emphasized language, which immediately follows the definition of war veterans, shows that the provision regarding retirement credit for military service applies to the "war veterans" who served in the Armed Forces during the listed periods of wartime — in particular, Plaintiffs.

¶ 11 The sentence in § 67.13a upon which Board relies merely modifies the general definition of war veterans that precedes it. Although the sentence uses...