Sindt v. Retirement Bd

• Decision Date: 02 February 2007
• Docket Number: No. 20050922.,20050922.
• Citation: Sindt v. Retirement Bd, 157 P.3d 797, 2007 UT 16 (Utah 2007)
• Parties: John A. SINDT, Petitioner, v. RETIREMENT BOARD, Respondent. Salt Lake County, Intervenor.
• Court: Utah Supreme Court

157 P.3d 797

2007 UT 16

John A. SINDT, Petitioner, v. RETIREMENT BOARD, Respondent Salt Lake County, Intervenor.

No. 20050922.

Supreme Court of Utah.

February 2, 2007.

John N. Brems, Lisa R. Petersen, Salt Lake City, for petitioner.

Daniel D. Andersen, Salt Lake City, for respondent.

Donald H. Hansen, Melanie F. Mitchell, David E. Yocum, Salt Lake City, for intervenor.

On Certification from the Utah Court of Appeals

DURHAM, Chief Justice:

¶ 1 This case comes before us on review from a grant of summary judgment issued by the Utah State Retirement Board (the Board). Plaintiff John A. Sindt argues that the Board erred in concluding that he was not entitled to benefits from the Utah state retirement system. We reverse and remand.

BACKGROUND

¶ 2 Mr. Sindt served as an elected constable for Salt Lake County (the County) from 1967 until 1974. He was again elected as a County constable in 1979 and served until 1986. From July 1991 to 1999, Mr. Sindt was an appointed constable for the County. He seeks state retirement benefits for these periods.

¶ 3 As a constable, Mr. Sindt performed services for the County. Those services, however, constituted only a fraction of his work, most of which was performed for private entities. Mr. Sindt was not paid a salary for his services to the County; instead, he billed the County on a fixed fee-per-service basis. The record does not contain complete tax records for Mr. Sindt going back to 1967, but the tax returns from 1987 to 1999 reveal that Mr. Sindt's business entities were paid by his clients, including the County, and Mr. Sindt received income from those entities.¹ Furthermore, from 1984 to 1987 (the only years for which records were provided to the Board), the County's payments to Mr. Sindt were reported on federal 1099 forms and used his corporate tax identification number. Thus, on the record before this court, the County has never paid Mr. Sindt as an individual. The County has never exerted control over the operation of Mr. Sindt's constable business. It never regulated or controlled his hours of operation, marketing, employees, or clientele, and the County never provided office space, supplies, or insurance to Mr. Sindt.

¶ 4 In 1999, Mr. Sindt filed a claim for participation in the Utah state retirement system. This claim was denied, and Mr. Sindt filed a request for Board action. The County intervened in this action and filed a motion for summary judgment. The Board granted the motion for summary judgment, denying Mr. Sindt's claim for retirement benefits. Mr. Sindt sought a writ of review from the court of appeals, and the court of appeals certified the case to this court. We have jurisdiction pursuant to Utah Code section 78-2-2(3)(b) (2002).

STANDARD OF REVIEW

¶ 5 The legislature has established that the Utah State Retirement Board shall

develop broad policy for the long-term operation of the various systems, plans, and programs under broad discretion and power to perform the board's policymaking functions, including the specific authority to interpret and define any provision or term under this title when the board or office provides written documentation which demonstrates that the interpretation or definition promotes uniformity in the administration of the systems or maintains the actuarial soundness of the systems, plans or programs.

Utah Code Ann. § 49-11-203(1)(k) (2002). Thus, the Board is entitled to deference at times, but the discretion granted to the Board by the legislature is limited. The legislature has granted discretion to the Board only if it "provides written documentation which demonstrates that the interpretation or definition promotes uniformity in the administration of the systems or maintains the actuarial soundness of the systems, plans or programs." Id. Additionally, courts will grant deference only if the Board's interpretation or definition is plausible and consistent with the plain language of the statute. In this case, the Board has not provided any documentation that its statutory interpretation promotes uniformity or actuarial soundness. Thus, the Board's decision is not entitled to deference. Absent a grant of discretion, we review the Board's application or interpretation of a statute as a question of law under the correction-of-error standard. Morton Int'l, Inc. v. State Tax Comm'n, 814 P.2d 581, 589 (Utah 1991). We will "grant relief only if, on the basis of the agency's record, [we] determine[ ] that a person seeking judicial review has been substantially prejudiced [because] ... the agency has erroneously interpreted or applied the law." Utah Code Ann. § 63-46b-16(4), (4)(d) (2004).

ANALYSIS

¶ 6 Mr. Sindt argues that he is entitled to participation in the state retirement system for all years in which he acted as an elected or appointed constable for Salt Lake County. The County, on the other hand, contends that Mr. Sindt is not entitled to any retirement benefits because during the entirety of his service, Mr. Sindt was an independent contractor. We are not fully persuaded by the position of either party. We cannot ignore the express inclusion of constables within the retirement act in effect when Mr. Sindt first became a constable. Nor can we ignore the ambiguous nature of the constable position in the category of elected and appointed officers. Accordingly, we must construe the language of the numerous acts in effect over Mr. Sindt's career to determine whether, at any given time, constables were eligible for coverage in the state retirement system.

¶ 7 In January 1967, Mr. Sindt took the official oath to become a constable for the County. At that time, the state retirement act in effect was the Utah Public Employees' Retirement Act (1965 Act), Utah Code Ann. §§ 49-1-32 to -73 (Supp.1965), repealed by 1967 Utah Laws ch. 106. The 1965 Act specifically included "constables" within its definition of "employee." The Act provided that employee "shall mean, also, an officer elective or appointive including constables, ... who receives as compensation from an employer $30.00 or more per month." Id. § 49-1-34(5).

¶ 8 "Under our rules of statutory construction, we look first to the statute's plain language to determine its meaning." Mountain Ranch Estates v. State Tax Comm'n, 2004 UT 86, ¶ 9, 100 P.3d 1206. This court presumes "that the terms of a statute are used advisedly" by the legislature. Bd. of Educ. v. Salt Lake County, 659 P.2d 1030, 1035 (Utah 1983). "Therefore, effect should be given to each such word, phrase, clause, and sentence where reasonably possible." Chris & Dick's Lumber & Hardware v. Tax Comm'n, 791 P.2d 511, 516 (Utah 1990) (Howe, J., dissenting) (citations omitted). The explicit inclusion of "constables" in the 1965 Act reflects that the legislature recognized the ambiguity of the constable position within the realm of elected and appointed officers, prompting it to explicitly include "constables" within the definition of "employee." In the case before us, the County and the Board addressed the unique nature of constables and concluded that they should be identified as independent contractors.²

¶ 9 The nature of a constable's service to a government entity, apparent in Mr. Sindt's role as a County constable, occupies a unique position, unlike that of other elected and appointed officers. For example, Mr. Sindt's billing on a fee-per-service basis, the lack of control by the County over the operation of his business, and the County's status as only one of multiple clients set constables like Mr. Sindt apart from other elected and appointed officers. Despite the distinctive nature of the constable within the framework of elected and appointed officers, however, we cannot ignore the plain language of the 1965 Act, which was in effect when Mr. Sindt began his service as County constable. In the 1965 Act, constables were explicitly eligible for participation in the public employees' retirement system.

¶ 10 Being a constable, however, did not automatically place Mr. Sindt within the definition of employee under the 1965 Act. Only constables "who receive[d] as compensation from an employer $30.00 or more per month" fully qualify under the definition of employee. Utah Code Ann. § 49-1-34(5) (Supp.1965) (emphasis added). "Compensation" means "the total amount of payments made by an employer to an employee for services rendered to the employer." Id. § 49-1-34(12) (emphasis added). Thus, Mr. Sindt had to be paid as an individual employee by the County in order to be included within the definition of employee under the 1965 Act. County payments for services rendered by Mr. Sindt that were made to his business or corporation do not fall within the definition of compensation. Compensation is a prerequisite to eligibility for constables in the state retirement system under the 1965 Act.³

¶ 11 Mr. Sindt has the burden of proving that the County indeed made payments to him, as an individual employee. If the payments were made to Mr. Sindt's businesses, as they were from 1984 to 1999,⁴ then he would not be entitled to participation in the state retirement system.

¶ 12 Thus, constables are eligible for coverage in the state retirement system under the 1965 Act only if they were paid as individuals by their employer. Mr. Sindt unmistakably was an elected constable when the 1965 Act was in effect, but he still must prove that he was paid as an individual by the County to qualify for participation in the state retirement system.

¶ 13 In 1967, the legislature repealed the 1965 Act and enacted the Utah State Retirement Act (1967 Act), Utah Code Ann. §§ 49-10-1 to -55 (Supp.1967), repealed by 1987 Laws of Utah ch. 1, § 180. The new Act's definition of employee differed in one significant way regarding elected and appointed officers: the explicit reference to constables was removed. Compare id. § 49-10-6(6) (Supp.1967), with id. § 49-1-34(5) (Supp.1965). As stated above, the legislature apparently recognized...