W.Va. Consol. Pub. Retire. Bd. v. Weaver

• Decision Date: 10 October 2008
• Docket Number: No. 33864.,33864.
• Citation: 671 S.E.2d 673
• Parties: WEST VIRGINIA CONSOLIDATED PUBLIC RETIREMENT BOARD, Petitioner Below, Appellee, v. Jerry Allen WEAVER, A Retiree of the West Virginia Public Employees Retirement System, Respondent Below, Appellant.
• Court: West Virginia Supreme Court

671 S.E.2d 673

WEST VIRGINIA CONSOLIDATED PUBLIC RETIREMENT BOARD, Petitioner Below, Appellee, v. Jerry Allen WEAVER, A Retiree of the West Virginia Public Employees Retirement System, Respondent Below, Appellant.

No. 33864.

Supreme Court of Appeals of West Virginia.

Submitted September 24, 2008.

Decided October 10, 2008.

Syllabus by the Court

1. "Interpreting a statute or an administrative rule or regulation presents a purely legal question subject to de novo review." Syllabus point 1, Appalachian Power Co. v. State Tax Department of West Virginia, 195 W.Va. 573, 466 S.E.2d 424 (1995).

2. "At common law, as under W. Va. Code, 5-10A-1 to 5-10A-10 [1976], a public officer's or public employee's service must be honorable at all times, and if not, there is a total forfeiture of the public pension." Syllabus point 1, West Virginia Public Employees Retirement System v. Dodd, 183 W.Va. 544, 396 S.E.2d 725 (1990), overruled on other grounds by Booth v. Sims, 193 W.Va. 323, 456 S.E.2d 167 (1995).

3. "If an employee engages in misconduct during his or her public service, he or she may forfeit rights to collect a pension later. Insofar as West Virginia Public Employees Retirement System v. Dodd, 183 W.Va. 544, 396 S.E.2d 725 (1990) holds that an employee's misconduct results in a forfeiture of the entire pension, it is still good law because the requirement of honorable service has been established in advance and has been made an explicit part of the entire bargain." Syllabus point 9, in part, Booth v. Sims, 193 W.Va. 323, 456 S.E.2d 167 (1995).

4. "In the absence of any definition of the intended meaning of words or terms used in a legislative enactment, they will, in the interpretation of the act, be given their common, ordinary and accepted meaning in the connection in which they are used." Syllabus point 1, Miners in General Group v. Hix, 123 W.Va. 637, 17 S.E.2d 810 (1941), overruled on other grounds by Lee-Norse Co. v. Rutledge, 170 W.Va. 162, 291 S.E.2d 477 (1982).

5. Within the definition of "less than honorable service" set forth in W. Va.Code § 5-10A-2(e)(2) (2005) (Repl.Vol.2006), the term "related to" requires the referenced felony conviction to be connected to or associated with the participant's office or employment.

Leah Perry Macia, Stephanie L. Ojeda, Eric E. Kinder, Randal M. Whitlatch, Spilman Thomas & Battle, PLLC, Charleston, for Appellant.

J. Jeaneen Legato, West Virginia Consolidated Public Retirement Board, Charleston, for Appellee.

DAVIS, Justice.¹

The appellant herein and respondent below, Jerry Allen Weaver (hereinafter "Mr. Weaver"), appeals from an order entered July 23, 2007, by the Circuit Court of Kanawha County. By that order, the circuit court determined that Mr. Weaver, who is a retiree of the West Virginia Public Employees Retirement System (hereinafter "PERS"), had forfeited his right to receive benefits therefrom because he had rendered "less than honorable service" in violation of W. Va.Code § 5-10A-1 (1976) (Repl.Vol.2006) and W. Va. Code § 5-10A-2(e)(2) (2005) (Repl.Vol.2006). Specifically, the circuit court determined that because Mr. Weaver, who, prior to his retirement, had served as the elected Assessor of Lincoln County from 1980 until 2006, had been convicted of the felony of conspiracy to buy votes pursuant to 18 U.S.C. § 371 (1994) (Repl.Vol.2008), such crime constituted a "[c]onviction of a participant of a felony for conduct related to his ... office ... which he ... committed while holding the office" in violation of W. Va.Code § 5-10A-2(e)(2). On appeal to this Court, Mr. Weaver contends that the circuit court erred by concluding that his conviction of conspiracy to buy votes was related to his office as Assessor insofar as he claims that he did not benefit directly from such conspiracy. Upon a review of the parties' arguments, the pertinent authorities, and the record designated for appellate review, we affirm the ruling of the circuit court.

I. FACTUAL AND PROCEDURAL HISTORY

The facts underlying the instant appeal are largely undisputed by the parties. Mr. Weaver served as the elected Assessor of Lincoln County from 1980 until he resigned from that office on December 30, 2005.² When Mr. Weaver retired on January 1, 2006, he had twenty-seven years and six months of credited service with PERS. At the time that the circuit court entered its aforementioned order, Mr. Weaver had been receiving PERS pension benefits of approximately $2,020.79 per month since the date of his retirement.

On August 2, 2005, the United States Attorney's Office charged Mr. Weaver with a single count of participating in a conspiracy to buy votes in violation of 18 U.S.C. § 371 (1994) (Repl.Vol.2008).³ The indictment alleged that Mr. Weaver had participated in the alleged vote-buying conspiracy and committed acts in furtherance thereof from 1990 until 2004; during this same period of time, Mr. Weaver was the elected Assessor of Lincoln County and was a contributing member of PERS. Thereafter, on December 27, 2005, Mr. Weaver entered a plea of guilty. On West Virginia Primary Election Day 2006, i.e. May 9, 2006, the United States District Court for the Southern District of West Virginia sentenced Mr. Weaver to twelve months' imprisonment and fined him $2,000.

During the guilty plea hearing, Mr. Weaver testified that his only role in the alleged conspiracy was as a conduit of monies from one third-party to another third-party. Mr. Weaver claims that he did not directly benefit from the alleged conspiracy insofar as none of the monies were used to buy votes to win his reelection and that he did not use his office in furtherance of the alleged conspiracy insofar as he did not reduce tax assessments or engage in other improper behavior in an attempt to buy votes or to defeat the opponents of the slated candidates. Subsequently, during the sentencing hearing, the district court found that "the defendant [Mr. Weaver] did not abuse his position as assessor of Lincoln County in that he has not shown to have abused that position to facilitate the commission of the conspiracy offense to which he has pled guilty."⁴ The court also described Mr. Weaver's involvement in the alleged conspiracy as "a conduit of funds destined for vote buying."

Subsequent to these criminal proceedings, the appellee herein and petitioner below, the West Virginia Consolidated Public Retirement Board (hereinafter "the Board"), by written notice dated September 18, 2006, informed Mr. Weaver that it believed his felony conviction indicated that he had rendered "less than honorable service" and that, as a result thereof, he was no longer eligible to receive pension benefits from PERS. Mr. Weaver then requested the Board to seek a judicial determination as to whether he had rendered "less than honorable service." As a result, the Board filed a petition in the Circuit Court of Kanawha County on November 6, 2006, seeking to terminate Mr. Weaver's retirement benefits. Following responsive pleadings and a hearing on the matter, the circuit court, by order entered July 23, 2007, determined that Mr. Weaver had forfeited his right to receive his PERS retirement benefits. In so ruling, the circuit court observed that "`public service, compensated at public expense, is a public trust and necessarily implies faithful service.... Simply put, public pensions, unlike private-sector pensions, are premised in part upon faithful service of the public trust; therefore, a breach of that trust leads to a forfeiture of a public pension.'" Quoting West Virginia Pub. Employees Ret. Sys. v. Dodd, 183 W.Va. 544, 549 & 553, 396 S.E.2d 725, 730 & 734 (1990) (additional citation omitted), overruled on other grounds by Booth v. Sims, 193 W.Va. 323, 456 S.E.2d 167 (1995). Thus, the circuit court concluded,

[a] fundamental breach of the public trust occurred when an elected official, Respondent [Mr. Weaver], feloniously engaged in a conspiracy to buy votes during elections in which he was a candidate[.]

Respondent's felony conviction is related to his elected position. Respondent became a member of the West Virginia Public Employees Retirement System (PERS) by virtue of holding an elected office and remained a member by repeatedly winning elections. He was convicted of corrupting many of the elections which triggered his eligibility and allowed for his continued participation in the public funded pension system (PERS)[.]

Pursuant to West Virginia Code § 5-10A-1, et seq., the Respondent, Jerry Allen Weaver, has rendered less than honorable service and as a consequence is legally ineligible to receive any benefits as a retirant of the Public Employees Retirement System[.]

(Emphasis in original). Finally, the court ordered that Mr. Weaver's "membership in the Public Employees Retirement System be terminated pursuant to West Virginia Code § 5-10A-1, et seq., and that his past employee contributions together with statutory interest be refunded to him minus any benefits he has previously received."⁵ From this ruling of the circuit court, Mr. Weaver appeals to this Court.

II. STANDARD OF REVIEW

On appeal to this Court, Mr. Weaver assigns error to the circuit court's interpretation of the statutory provisions governing his eligibility to receive pension benefits from PERS. This Court has jurisdiction to hear this case in its present posture pursuant to W. Va.Code § 5-10A-4 (1976) (Repl.Vol. 2006),⁶ which directs that "[a] determination of the circuit court [regarding eligibility for public pension benefits] shall be a final order which may be appealed to the Supreme Court of Appeals in the same manner as decisions in other civil actions." Insofar as the merits of the present appeal involve a matter of statutory interpretation, we review the circuit court's ruling de novo: "[i]nterpreting a statute or an administrative rule or regulation presents a purely legal question subject to de novo review." Syl. pt. 1, Appalachian Power Co. v. State Tax...