State ex rel. Mayberry v. City of Rolla

• Decision Date: 26 June 1998
• Docket Number: No. 21919,21919
• Citation: 970 S.W.2d 901
• Parties: STATE of Missouri ex rel. Joanne B. MAYBERRY, Respondent, v. The CITY OF ROLLA, Missouri, Appellant.
• Court: Missouri Court of Appeals

Page 901

970 S.W.2d 901

STATE of Missouri ex rel. Joanne B. MAYBERRY, Respondent, v. The CITY OF ROLLA, Missouri, Appellant.

No. 21919.

Missouri Court of Appeals,

Southern District,

Division One.

June 26, 1998.

John D. Beger, Beger & Bushie, LLC, Rolla, for Appellant.

Ronald D. White, Williams, Robinson, Turley, White & Rigler, P.C., Rolla, for Respondent.

Robert L. Hawkins, III, Susan Decker McNarie, Jefferson City, for amicus curiae Missouri Local Government Employees' Retirement System.

CROW, Judge.

Relator, Joanne B. Mayberry ("Mayberry") was the elected municipal judge for the City of Rolla ("City") between July 1, 1975, and May 6, 1996. ¹ On May 7, 1996, Mayberry filed a "Petition in Mandamus" against City, praying the trial court to command City to provide her "monthly retirement benefits" under the Missouri Local Government Employees' Retirement System ("LAGERS"). ²

The trial court, deciding the case on a "Stipulation as to Facts" submitted by the parties, held City was obliged to fund retirement pay for Mayberry from LAGERS. The court entered judgment commanding City to pay LAGERS a lump sum sufficient to fund a specified monthly amount.

City brings this appeal from that judgment.

While this appeal was pending, LAGERS moved this court to intervene or, in the alternative, to file an amicus curiae brief. ³ This court granted the latter request and took the motion to intervene with the case. The reason for LAGERS's motion to intervene and its effect on this court's decision appear later in this opinion.

Section 70.605.1 ⁴ proclaims the purpose of LAGERS is, inter alia, to provide for retirement or pensioning of officers and employees of any political subdivision of the state. ⁵ Section 70.610 authorizes the governing body of each political subdivision, by majority vote, to cover its employees under LAGERS. Subsection "(2)" of § 70.610 provides, in pertinent part:

"An employer must cover all its employees...."

Subject to certain exceptions immaterial in this appeal, § 70.600(10) defines "employee" as:

"[A]ny person regularly employed by a political subdivision who receives compensation from the political subdivision for personal services rendered the political subdivision...."

On July 8, 1968, City's governing body adopted Ordinance No. 1413 (effective January 1, 1969). The ordinance provided, inter alia, that City elected to cover "all its eligible ... present and future general employees" under LAGERS.

On January 8, 1979 (during Mayberry's fourth year as municipal judge), City's governing body adopted Ordinance No. 2131. It provided, inter alia:

"The municipal judge shall be considered holding a part-time position....

....

The municipal court ... shall be subject to the rules of the Circuit Court of which it is a part,[ ⁶] and to the rules of the State Supreme Court."

City classifies its general employees as either "full-time" or "part-time." City certifies all full-time employees to LAGERS as eligible for retirement benefits and pays contributions to LAGERS for them. City does not certify part-time employees to LAGERS as eligible for retirement benefits and pays no contributions for them.

City classifies full-time and part-time employees as either salaried or hourly. Salaried employees are not required to keep records of the number of hours worked. In contrast, hourly employees are required to keep such records.

From the time Mayberry became municipal judge until 1989, she presided over municipal court sessions every Tuesday and Friday. After the court "computerized its docket" in 1989, she presided over court sessions every Tuesday and alternating Fridays.

During her first twelve years in office, Mayberry maintained office hours as municipal judge Monday through Friday from 8:00 a.m. to 5:00 p.m. During the last nine years of her tenure, Mayberry maintained office hours as municipal judge at both her home and City Hall. During her entire tenure, Mayberry was generally available on an "as needed" basis to defense attorneys, prosecutors, and law enforcement officials, and was called upon as municipal judge at all hours of the day and night by such individuals.

City issued Mayberry--a salaried employee--a "W-2 tax form" each year from 1975 through 1996. City never certified to the board of trustees of LAGERS that Mayberry was entitled to retirement benefits, nor did City ever contribute anything to LAGERS to fund such benefits.

Mayberry's petition averred she was "regularly employed" by City during her tenure as municipal judge, hence she was "entitled to retirement benefits under LAGERS."

City's answer averred Mayberry was not entitled to such benefits because, inter alia, she was not "regularly employed by [City] in that [she] was elected ... as Municipal Judge and was periodically re-elected to that position." ⁷ Furthermore, alleged City, Mayberry "set her own work hours" and was classified by Ordinance No. 2131 (mentioned earlier) as "holding a part-time position."

Prior to the designated trial date, a dispute arose between the parties about a regulation adopted by LAGERS's board of trustees ("Board"). ⁸ The regulation, adopted by Board effective January 8, 1976, is numbered 16 CSR 20-2.010. The stated purpose of the regulation is "to expand on definitions found in section 70.600, RSMo." Paragraph (1)(B) of the regulation provides:

"The term employee shall not include any person:

1. Who is employed in a position normally requiring less than one thousand five hundred (1500) hours of work a year; provided a political subdivision, by witten [sic] certification to the board at the time the employer joins the system, may reduce one thousand five hundred (1500) hours minimum for its employees, which lesser number of hours shall be uniform for all its employees and shall be one thousand two hundred fifty (1250) or one thousand (1000)[.]"

Mayberry filed a motion in limine praying the trial court to bar evidence "in support of an argument" that she was required to have worked a specific number of hours each year to meet the definition of "employee" in § 70.600(10), mentioned earlier. In support of her motion, Mayberry argued that § 70.605.21 ⁹ did not authorize Board to modify the statutory definition of "employee" in § 70.600(10).

The trial court granted Mayberry's motion. The court found Board "was without authority" under § 70.605.21 to adopt 16 CSR 20-2.010(1)(B)1. The court barred evidence in support of an argument that Mayberry was required to have worked not less than 1,500 hours each year to meet the definition of "employee" in § 70.600(10).

After the case was submitted (on the stipulation mentioned earlier), the trial court, sua sponte, informed counsel for the parties that the court was concerned about whether Mayberry's remedy was this mandamus proceeding or instead an administrative proceeding before Board.

Thereafter, by agreement of the parties, the trial court postponed adjudication until the parties presented the dispute to Board.

Mayberry presented the dispute to Board by filing a petition praying for the same relief she was seeking in the trial court. City responded with a motion to dismiss, asserting Board was "without authority to decide the questions raised by [Mayberry's] Petition."

On August 27, 1997, Board issued an "Order and Decision." It read, in pertinent part:

" ... the Board ... sustains the motion to dismiss of ... City ... for the reason that the Board ... is without sufficient jurisdiction to resolve this particular dispute."

The trial court thereafter entered the judgment referred to in the second paragraph of this opinion. The judgment declares Mayberry is entitled to retirement pay of $278.50 per month and orders City to pay LAGERS $10,089.59 "or such other amount as LAGERS may properly determine" to fund Mayberry's retirement pay.

The first of City's two points relied on is:

"The court erred in sustaining [Mayberry's] motion in limine, finding the Board of Trustees which administers [LAGERS] is without authority to enact 16 CSR 20-2.010(1)(B)-1 and rejecting any ... evidence that [Mayberry] was required to have worked not less than [1,500] hours each year to meet the definition of employee because the regulation was within the Board's grant of authority under section 70.605.21, RSMo[,] to formulate and adopt rules and regulations for the administration of the retirement system; the regulation was reasonable and [Mayberry] did not meet her burden of overcoming the presumption in favor of the regulation."

As reported in the fourth paragraph of this opinion, LAGERS moved this court for leave to intervene in this action. This court, having taken LAGERS's motion with the case, now addresses that issue, as it is germane to City's first point.

LAGERS maintains § 507.090.1 and Rule 52.12(a) ¹⁰ grant it the right to intervene.

Section 507.090.1 reads, in pertinent part:

"Upon timely application anyone shall be permitted to intervene in an action

(1) ...

(2) When the representation of the applicant's interest by existing parties is or may be inadequate and the applicant is or may be bound by a judgment in the action...."

Rule 52.12(a) reads, in pertinent part:

"Upon timely application anyone shall be permitted to intervene in an action: (1) ... (2) when the applicant claims an interest relating to the property or transaction that is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties."

LAGERS's hypothesis, as we grasp it, is: (a) the trial court held Board lacked authority to adopt 16 CSR 20-2.010(1)(B)1; (b) neither LAGERS nor Board was aware of that ruling until City raised the issue in its first point in this appeal ¹¹; (c) this court's ruling on that issue will have "precedential effect" on future LAGERS cases; (d)...