State ex rel. Oklahoma Firefighters Pension and Retirement System v. City of Spencer, 2009 OK 73 (Okla. 9/29/2009)

• Citation: 2009 OK 73
• Decision Date: 29 September 2009
• Docket Number: No. 104863,104863
• Parties: STATE OF OKLAHOMA ex rel., OKLAHOMA FIREFIGHTERS PENSION AND RETIREMENT SYSTEM Plaintiff/Appellant v. CITY OF SPENCER, OKLAHOMA, and NICOLE MUKES, City Manager of the City of Spencer in her official capacity, and RONALD CUMMINGS, an individual Defendants/Appellees
• Court: Supreme Court of Oklahoma

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2009 OK 73

STATE OF OKLAHOMA ex rel., OKLAHOMA FIREFIGHTERS PENSION AND RETIREMENT SYSTEM Plaintiff/Appellant v. CITY OF SPENCER, OKLAHOMA, and NICOLE MUKES, City Manager of the City of Spencer in her official capacity, and RONALD CUMMINGS, an individual Defendants/Appellees

No. 104863

Supreme Court of Oklahoma.

September 29, 2009.

ON CERTIORARI TO THE COURT OF CIVIL APPEALS, DIV. III

¶ 0 The Oklahoma Firefighters Pension and Retirement System sought declaratory relief urging the City of Spencer hired as its fire chief an individual who was ineligible for membership in its pension system and was hence not permitted to serve in this capacity. It requested the court order the City to terminate his employment. The District Court, Oklahoma County, Daniel L. Owens, Judge, gave summary judgment to the System and declared Cummings was hired in violation of the maximum-age requirement for employment and is hence ineligible to serve as fire chief. He denied its request to order the City to terminate his employment. The Court of Appeals affirmed that disposition.

THE COURT OF CIVIL APPEALS' OPINION IS VACATED, THE TRIAL JUDGE'S DECISION IS REVERSED IN PART, AND THE CAUSE STANDS REMANDED FOR PROCEEDINGS NOT INCONSISTENT WITH TODAY'S PRONOUNCEMENT

Marc Edwards, Robert N. Sheets, Phillips McFall McCaffrey McVay & Murrah, P.C., Oklahoma City, Oklahoma, for Appellant/Petitioner

Ted Pool, Raymond A. Vincent, Pool Blankenship & Vincent, Oklahoma City, Oklahoma, for Appellee¹

OPALA, J.

¶ 1 The issue presented is whether the Court of Civil Appeals (COCA) erred when it affirmed the trial court's summary adjudication that denied the Oklahoma Firefighters Pension and Retirement System's request that the City of Spencer be ordered to terminate the employment of its recently-hired fire chief who was simultaneously declared to be ineligible for membership in the pension system. We answer in the affirmative.

I. ANATOMY OF THE LITIGATION

¶ 2 Nicole Mukes, in her capacity as City Manager for the City of Spencer, hired Ronald Cummings to serve as the City's fire chief. Mukes, the City of Spencer, and Cummings may be referenced individually but are collectively to be known as "City" or defendants. Cummings, who was forty-nine (49) years old at the time, sought admission to the Oklahoma Firefighters Pension and Retirement System (System). Because of his age and lack of previous creditable service to the System, it determined Cummings was not then nor could he now become eligible for retirement at the age of sixty-five (65) as required by the terms of 11 O.S. 2001 § 49-135.² The System filed an amended petition³ seeking declaratory relief⁴ (1) alleging that Cummings was ineligible for membership in the System and hence not permitted to serve as fire chief and (2) requesting the court to issue an order to remove him from this position.⁵ The System filed a motion for summary judgment, and the City filed a counter-motion for the same relief. The trial court denied the City's motion. It granted the System's motion to the extent it determined the City violated the terms of §49-135⁶ when it hired Cummings because he was ineligible to become a member of the System. It denied the System's request for an order directing that the City terminate Cummings' employment because, according to the trial judge, the latter's age was not a public-safety factor.⁷ The System appealed. COCA affirmed the trial court's ruling. The System sought certiorari.

II. THE COURT'S DISPOSITION OF THE ISSUES PRESSED ON CERTIORARI

¶ 3 During the pendency of certiorari, circumstances pertinent to the case scenario changed. The City gave notice that Cummings was no longer employed by the City of Spencer.⁸ The court ordered the parties to show cause why the certiorari petition should not be denied because the controversy over Cummings' status as fire chief became mooted by his employment's termination.⁹ We granted certiorari to answer the questions posed for our review.

A. Today's Cause Is Not Mooted Because Cummings Is No Longer Employed As Fire Chief By the City of Spencer

¶ 4 We inquire first into the question of alleged mootness, i.e. — whether today's cause was mooted when the City gave notice that Cummings is no longer in its employ. Mootness is a state or condition which prevents the appellate court from rendering relief.¹⁰ Where, as here, after an appeal has been commenced, conditions arise which preclude an appellate decision from affording any effective relief, the appeal will be dismissed for mootness.¹¹ A viable controversy must continue at all stages of review-both on appeal and certiorari.¹² It is a long-established rule that this court will not consume its time by deciding "abstract propositions of law" or moot issues.¹³ The court may not reach these questions.¹⁴ Oklahoma jurisprudence recognizes two exceptions to the mootness doctrine: (1) when the appeal presents a question of broad public interest and (2) when the challenged event is "capable of repetition, yet evading review."¹⁵

¶ 5 Although the City was silent about the circumstances that effectuated the change in Cummings' employment as fire chief, we note that voluntary cessation of challenged conduct does not deprive a tribunal of its power to conduct appellate review.¹⁶ Moreover, the initial issue presented today — dealing with the enforcement or violation of a statute — clearly presents an important question of public interest. All aspects of the firefighter's pension and his participation in the retirement system, including eligibility for participation in the system, are of substantial interest to the state.¹⁷ The controversy here, likewise, meets the second exception to the mootness doctrine — known as the likelihood-of-recurrence exception.¹⁸ It is a reasonable probability that the System — as that entity ultimately responsible for the administration of pensions — will again be required to seek relief from recurrence of the challenged departure. Today's certiorari is hence not mooted by Cummings' absence from his employment as fire chief for the City of Spencer.

B. The District Court Possessed Authority to Order the City to Terminate Cummings' Employment as Fire Chief

¶ 6 We turn now to the initial issue pressed on certiorari — whether COCA erred when it affirmed the trial court's ruling that the latter "did not abuse its discretion" in denying the System its requested relief of ordering the City to terminate Cummings' employment.¹⁹

COCA's Opinion and the System's Certiorari Arguments

¶ 7 COCA ruled the trial court (1) properly declared the City's employment of Cummings as fire chief to be in violation of the maximum-age requirement in a fire department, as provided by the terms of § 49-135,²⁰ and that he is ineligible to be a System member and (2) did not abuse its discretion in denying the System the relief it requested by ordering the City to terminate Cummings' employment. According to COCA, the System's interest was satisfied when it obtained a declaration that Cummings was ineligible for admission to the pension system. Further, the legislature provided no remedy for a violation of the §49-135²¹ terms. COCA contrasted the lack of a statutory remedy for §49-135 with the express relief provided for a violation of the provisions of §49-138 through §49-142²² (whose terms deal with the crediting of military service to a firefighter's pension). According to COCA, no authority is present in the §49-135 terms that would allow the System to require the City to terminate Cummings' employment as fire chief.

¶ 8 Lastly, although at nisi prius the City's response and counter-motion was bottomed on invidious age discrimination and its consequent legal position should it be ordered to terminate Cummings,²³ the trial judge found Cummings' age was not a public-safety factor and refused to order his employment's termination. Because neither the City nor Cummings appealed from the district court's decision, and the System merely responded to this argument below, COCA correctly ruled that this issue was not preserved for review.²⁴ COCA's conclusion draws added strength from the City's and Cummings' failure to seek certiorari review of COCA's refusal to consider age discrimination as an issue on appeal. COCA's position meets with our approval. Age discrimination will hence not be addressed by today's opinion.

¶ 9 COCA's ruling, according to the System, poses a challenge to its authority to enforce the governing statutes. It urges (1) COCA erred in concluding there is no statutory authority on which to bottom the System's request to require the City to terminate Cummings' employment and (2) the district court has the authority to grant the relief sought under the authority of the Declaratory Judgments Act, 12 O.S. §1651 et seq.²⁵

The Court's Analysis

¶ 10 We disagree with COCA's ruling. The System's interest is not satisfied by the nisi prius declaration that Cummings was ineligible for System membership. Neither does the district court lack the authority to grant the relief requested by the System.

¶ 11 The System is a corporate body and instrumentality of the state.²⁶ Its Board is responsible for the policies and rules for the administration of the System and for the transaction of its business in accordance with state law.²⁷ Its fiduciary duties are not limited to shielding the financial assets of the System, but extend as well to "all other matters"²⁸ including bringing actions for declaratory relief to enforce the provisions of applicable state law. A firefighter's membership in the System is a precondition to employment when the municipality is a participating member.²⁹ The City of Spencer is a participating member in the System. It is the System's responsibility to seek enforcement of the mandatory employment condition.

¶ 12 The fundamental rule of statutory construction is to ascertain and give effect to legislative intent.³⁰ That intent is first divined from the language...