Craig v. City of Huntington

Decision Date07 July 1988
Docket NumberNo. 18137,18137
Citation371 S.E.2d 596,179 W.Va. 668
CourtWest Virginia Supreme Court
PartiesBilly Jack CRAIG v. The CITY OF HUNTINGTON, etc., and the Huntington Police Pension Board.

Syllabus by the Court

1. " 'When a statute is clear and unambiguous and the legislative intent is plain the statute should not be interpreted by the courts, and in such case it is the duty of the courts not to construe but to apply the statute.' Point 1, syllabus, State ex rel. Fox v. Board of Trustees of the Policemen's Pension or Relief Fund of the City of Bluefield, et al., 148 W.Va. 369, [ (1964) ]." Syllabus Point 1, State ex rel. Board of Trustees v. City of Bluefield, 153 W.Va. 210, 168 S.E.2d 525 (1969).

2. Fringe benefit payments to third parties for hospitalization, prescription drug, and eye care insurance do not constitute "remuneration actually received" under W.Va.Code, 8-22-16 (1981), which is the definition of "salary or compensation" as used in W.Va.Code, 8-22-24(a) (1981), the statute that provides the method for calculating the amount of a police officer's monthly disability pension benefit.

3. Under W.Va.Code, 8-22-24(a) (1981), a lump sum payment for accumulated sick leave, vacation, or holiday pay is not includable in the salary base for the purpose of calculating disability pension benefits.

James Allan Colburn, Huntington, for plaintiff.

Michael J. Farrell, Huntington, for defendants.

MILLER, Justice:

This is an appeal by Billy Jack Craig, a former police officer for the City of Huntington, from a judgment of the Circuit Court of Cabell County denying a portion of a writ of mandamus he sought to compel recalculation and payment of greater monthly disability pension benefits. The circuit court agreed that certain "fringe benefits" must be included in what we will term the "salary base" upon which pension benefits are calculated. However, the circuit court rejected his argument that a "lump sum" payment for accumulated and unused benefits must be included in the salary base for pension benefit computation. The City of Huntington and the Huntington Police Pension Board cross-appeal contending the trial court erred in including the fringe benefits in the pension calculation.

I. Facts

The facts and conclusions of law contained in the circuit court's final order are as follows. Billy Jack Craig was employed as a police officer by the City of Huntington in August, 1967. In August, 1981, he made a formal written request for a disability pension based upon a complete loss of vision in his right eye due to medical problems unrelated to his employment. He was granted a disability pension by the Huntington Police Pension Board on December 20, 1981, in the amount of $900.14 per month.

In August, 1983, Officer Craig filed a petition for a writ of mandamus contending the city and pension board had a mandatory nondiscretionary duty to pay higher monthly disability benefits retroactive to the date of his retirement. The circuit court concluded that the computation of disability pension benefits for Officer Craig was controlled by the provisions of W.Va.Code, 8-22-24(a) (1981), 1 which provides that "[t]he monthly sum to be paid to each member eligible for disability ... shall be equal to sixty percent of the monthly salary or compensation being received by such member[.]" (Emphasis added).

The circuit court found that the pension board's practice of utilizing only base salary for the purpose of computing monthly disability pension benefits is also followed in Beckley, Charleston, Clarksburg, and Parkersburg, West Virginia. The pension board calculated Officer Craig's retirement, consistent with its uniform policy or practice in such cases, by including only his monthly salary. It did not include any amount for fringe benefit payments. For purposes of this case, the circuit court concluded that the terms "salary" and "compensation" were synonymous. The circuit court also concluded, however, that the disjunctive "or" should be read as the conjunctive "and" so that the salary base would include both "monthly salary" and "monthly compensation." Monthly compensation was determined to include fringe benefits.

The circuit court found that as of his retirement date the following monthly fringe benefits, having a value of $271.72, were paid on Officer Craig's behalf by the Huntington Police Department: (1) hospitalization insurance benefit--$104.40; (2) prescription drug insurance--$8.00; (3) eye-care insurance--$4.25; and (4) sick days (2.5 days per month)--$155.08. 2

The circuit court concluded that these fringe benefits had been erroneously excluded by the pension board and, therefore, ordered that Officer Craig's monthly pension benefit be increased by 60 percent of their value retroactive to the date of his retirement.

The circuit court also concluded that a lump sum "payout" of $10,953 paid by the City of Huntington to Officer Craig in December, 1981, did not constitute monthly salary or compensation being received within the contemplation of W.Va.Code, 8-22-24(a) (1981). This lump sum payment was for unused vacation, holiday, and sick leave that Officer Craig had accumulated in his approximately fourteen years of service as a police officer.

II. Fringe Benefits

The first issue we address is whether the circuit court erred in concluding that fringe benefits should be included in the "salary base" for computing the amount of monthly disability pension benefits. It is appropriate to begin by identifying the nature of our inquiry, as explained by Judge Haymond in Spencer v. Yerace, 155 W.Va. 54, 59, 180 S.E.2d 868, 871-72 (1971), in another police pension case:

"The intention of the Legislature is ascertained from the provisions of the statute by the application of sound and well-established canons of construction, and the only manner in which the will of the Legislature is expressed is in the statute itself. In the construction of statutes, it is the legislative intent manifested in the statute that is important and such intent must be determined primarily from the language of the statute. State v. General Daniel Morgan Post No. 548, Veterans of Foreign Wars of the United States, 144 W.Va. 137, 107 S.E.2d 353 [ (1959) ]. Statutes creating a pension and relief fund for municipal employees should receive a liberal construction. Cawley v. The Board of Trustees of the Firemen's Pension or Relief Fund of the City of Beckley, 138 W.Va. 571, 76 S.E.2d 683 [ (1953) ]; Sturm v. Seamonds, 122 W.Va. 338, 9 S.E.2d 227 [ (1940) ]. In ascertaining the legislative intent, effect must be given to each part of the statute and to the statute as a whole so as to accomplish the general purpose of the legislation."

We recognized in Cawley v. The Board of Trustees of the Firemen's Pension or Relief Fund, 138 W.Va. 571, 76 S.E.2d 683 (1953), despite the general proposition that pension statutes should be liberally construed to effectuate the legislative purpose, that where the statute is "without ambiguity," it is the duty of the court to apply the statute "as written." 138 W.Va. at 578, 76 S.E.2d at 687.

More recently in State ex rel. Board of Trustees v. City of Bluefield, 153 W.Va. 210, 168 S.E.2d 525 (1969), this Court granted a writ of mandamus in favor of the Board of Trustees of the Policemen's Pension or Relief Fund of the City of Bluefield, requiring the city to levy taxes for the full amount of the Board's estimated expenditures. Finding the provisions of W.Va.Code, 8-6-14, to be free from ambiguity, the Court stated in Syllabus Point 1:

" 'When a statute is clear and unambiguous and the legislative intent is plain the statute should not be interpreted by the courts, and in such case it is the duty of the courts not to construe but to apply the statute.' Point 1, syllabus, State ex rel. Fox v. Board of Trustees of the Policemen's Pension or Relief Fund of the City of Bluefield, et al., 148 W.Va. 369, [ (1964) ]."

The pension calculation statute, W.Va.Code, 8-22-24(a) (1981), uses the phrase "monthly salary or compensation." The words "salary or compensation" are defined by W.Va.Code, 18-22-16 (1981), 3 to mean "remuneration actually received by a member." This definitional language supports the circuit court's conclusion that the words "salary" or "compensation" are synonymous for pension benefit purposes in this case. This is because both words have a common meaning which is the "remuneration actually received by a member." The critical point for purposes of the fringe benefit issue is that payments made to third parties such as health care benefits, i.e., hospitalization insurance, eye care insurance, and prescription drug insurance benefits, are not remuneration actually received by the officer.

Even aside from our "remuneration actually received" standard, other courts faced with pension statutes calculating benefits based on salary have concluded that fringe benefits are not included in the salary base for purposes of computing pension benefit payments. In Hay v. City of Highland Park, 134 Mich.App. 624, 351 N.W.2d 622 (1984), the issue was whether payments made for hospitalization, eye care, and dental insurance could be utilized in calculating the final average salary. It concluded that they could not, stating:

"[A] fair number of courts have held in varying circumstances that pensions based on 'salary' do not include fringe benefits. See, e.g., State ex rel. Henderson v. Schuele, 25 Ohio St.2d 179, 267 N.E.2d 590 (1971); City of Manitowoc v. Police Pension Board for the City of Manitowoc, 56 Wis.2d 602, 203 N.W.2d 74 (1973); Hilligoss v. LaDow, 174 Ind.App. 520, 368 N.E.2d 1365 (1977); Jahn v. City of Woodstock, 99 Ill.App.3d 206, 54 Ill.Dec. 625, 425 N.E.2d 490 (1981)."

See also Guelfi v. Marin County Employees' Retirement Ass'n, 145 Cal.App.3d 297, 193 Cal.Rptr. 343 (1983); Rose v. City of Hayward, 126 Cal.App.3d 926, 179 Cal.Rptr. 287 (1981); Lugar v. State ex rel. Lee, 270 Ind. 45, ...

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