W. Va. Consol. Pub. Ret. Bd. v. Wood

• Decision Date: 28 March 2014
• Docket Number: No. 13–0403.,13–0403.
• Court: West Virginia Supreme Court
• Parties: WEST VIRGINIA CONSOLIDATED PUBLIC RETIREMENT BOARD, Respondent Below, Petitioner v. Keith A. WOOD, William E. Walkup, Ted M. Cheatham, Herbert E. Lattimore, Jr., and Johnny L.R. Fernatt, Petitioners Below, Respondents.

233 W.Va. 222

757 S.E.2d 752

WEST VIRGINIA CONSOLIDATED PUBLIC RETIREMENT BOARD, Respondent Below, Petitioner

v.Keith A. WOOD, William E. Walkup, Ted M. Cheatham, Herbert E. Lattimore, Jr., and Johnny L.R. Fernatt, Petitioners Below, Respondents.

No. 13–0403.

Supreme Court of Appeals of

West Virginia.

Submitted Feb. 12, 2014.

Decided March 28, 2014.

Syllabus by the Court

1. “Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review.” Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).

2. “Interpreting 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 Dep't of W. Va., 195 W.Va. 573, 466 S.E.2d 424 (1995).

3. “ ‘Where a statute is of doubtful meaning, the contemporaneous construction placed thereon by the officers of government charged with its execution is entitled to great weight, and will not be disregarded or overthrown unless it is clear that such construction is erroneous.’ Syllabus Point 7, Evans v. Hutchinson, 158 W.Va. 359, 214 S.E.2d 453 (1975).” Syl. Pt. 4, Hawkins v. W. Va. Dep't of Pub. Safety, 223 W.Va. 253, 254, 672 S.E.2d 389, 390 (2008).

4. “ ‘ “Interpretations of statutes by bodies charged with their administration are given great weight unless clearly erroneous.” Syl. pt. 4, Security National Bank & Trust Company v. First W.Va. Bancorp [.], Inc., 166 W.Va. 775, 277 S.E.2d 613 (1981).’ Syllabus point 3, Smith v. Board of Education of County of Logan, 176 W.Va. 65, 341 S.E.2d 685 (1985).” Syl. Pt. 7, Lincoln Cnty. Bd. of Educ. v. Adkins, 188 W.Va. 430, 424 S.E.2d 775 (1992).

5. “A statute that is ambiguous must be construed before it can be applied.” Syl. Pt. 1, Farley v. Buckalew, 186 W.Va. 693, 414 S.E.2d 454 (1992).

6. “The primary object in construing a statute is to ascertain and give effect to the intent of the Legislature.” Syl. Pt. 1, Smith v. State Workmen's Comp. Comm'r, 159 W.Va. 108, 219 S.E.2d 361 (1975).

7. “Judicial interpretation of a statute is warranted only if the statute is ambiguous and the initial step in such interpretative inquiry is to ascertain the legislative intent.” Syl. Pt. 1, Ohio Cnty. Comm'n v. Manchin, 171 W.Va. 552, 301 S.E.2d 183 (1983).

8. “ ‘In ascertaining 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.’ Syl. Pt. 2, Smith v. State Workmen's Compensation Commissioner, 159 W.Va. 108, 219 S.E.2d 361 (1975).” Syl. Pt. 3, State ex rel. Fetters v. Hott, 173 W.Va. 502, 318 S.E.2d 446 (1984).

9. The phrase “period of armed conflict” as utilized in West Virginia Code § 5–10–15(b)(1) (2013), is not limited to the military engagements specifically identified in the statute but also includes other periods of armed conflict in which the United States has engaged, as the credible evidence presented in each individual case may dictate.Lenna R. Chambers, Esq., Bowles Rice LLP, Charleston, WV, for Petitioner.

Lonnie C. Simmons, Esq., Elizabeth G. Kavitz, Esq., DiTrapano, Barrett, DePiero, McGinley & Simmons, PLLC, Charleston, WV, for Respondents.

WORKMAN, Justice:

This is an appeal by the West Virginia Consolidated Public Retirement Board (hereinafter “the Board”) from a March 20, 2013, order of the Circuit Court of Kanawha County. The Board contends that the circuit court erred in reversing the Board's finding that five employees of the State of West Virginia covered by the Public Employees Retirement System (hereinafter “PERS”) were not entitled to certain military service credit available through West Virginia Code § 5–10–15 (2013), despite their active service during several recognized periods of armed conflict and their honorable discharge from the United States military. In the consolidated administrative appeals, the circuit court held that the five employees were entitled to the military service credit they sought. The Board now appeals to this Court. Upon thorough review of the appendix record, the arguments of counsel, statutory requirements, and applicable precedent, this Court affirms the decision of the circuit court.

I. Factual and Procedural History

A. The Respondent Veterans

The respondents in this case are five individuals (hereinafter “Respondents”) who served in various capacities in the United States military, subsequently entered public service with the State of West Virginia, and ultimately sought military service credit through PERS. Respondent Keith Wood served on active duty with the United States Army from January 7, 1978, through September 29, 1992. While he served in the Army, Respondent Wood had some involvement in the events in Nicaragua, El Salvador, Honduras, Saudi Arabia, Kuwait, Lebanon, Yugoslavia, Iraq, and Iran. In 1992, Respondent Wood accepted employment with the State of West Virginia, and he contends that he was informed that he would receive five years of military service credit in PERS upon his employment. ¹

Although his PERS annual statements reflected five years of military service credit, when Respondent Wood inquired about retirement credit in 2011, he was informed by the Board that his military service credit had been calculated incorrectly, and that he was entitled to only eight months of military service credit. In applying for the credit, Respondent Wood relied upon his actual military service and an alternate estoppel argument, based upon the letters he received indicating that he was entitled to military credit and his reliance upon the statements made to him at the time of his initial employment with the State.² The Board awarded Respondent Wood only eight months of military service credit, based upon his service during the Persian Gulf War, August 2, 1990, through April 11, 1991. Upon appeal to the circuit court, Respondent Wood was awarded the full five years of military service credit based upon his military service record.

Respondent William E. Walkup served on active duty as a United States Marine from May 5, 1983, to May 4, 1987, and joined PERS in 1989 as a State employee. He was first employed by the State as an Interim Manager and Maintenance Director of Eastern West Virginia Regional Airport and later promoted to the position of Manager and Director of the Eastern West Virginia Regional Airport. While serving in the Marine Corps, Respondent Walkup had some involvement in the events in Lebanon, Grenada,and El Dorado Canyon. Respondent Walkup did not receive any military service credit at the Board level, but he was awarded four years of military service credit by the circuit court, based upon his service record.

Respondent Herbert E. Lattimore, Jr., served on active duty in the United States Army from May 4, 1975, through February 28, 2001, and became a member of PERS in 2002, as an employee of West Virginia's Division of Homeland Security and Emergency Management. While Respondent Lattimore served in the Army, the United States was involved in conflict events in the Persian Gulf, Vietnam, Mayaguez, Beirut, Panama, Grenada, Nicaragua, Libya, and Kosovo. The Board informed Respondent Lattimore that he was eligible for eight months of military service credit in PERS for his active duty service from August 2, 1990, to April 11, 1991. On appeal to circuit court, he was awarded five years of military service credit, based upon his service record.

Respondent Teddy M. Cheatham served on active duty in the United States Army from May 29, 1977, to October 15, 1988, and became a member of PERS in 2006, as an employee of the State of West Virginia's Public Employees Insurance Agency. While Respondent Cheatham served in the Army, the United States was involved in conflict events in Nicaragua, Somalia, Lebanon, Granada, and Panama. The Board concluded that Respondent Cheatham was not entitled to any military service credit in PERS. The circuit court reversed that decision and held that Respondent Cheatham was entitled to receive the full five years of military service credit based upon his service record.

Respondent Johnny L.R. Fernatt served on active duty in the United States Navy from July 18, 1980, to February 16, 1990, became a member of PERS in 1998, and was most recently employed as a State Information Systems Manager. While he served in the Navy, the United States was involved in conflict events in Granada, Kosovo, Somalia, and Libya. The Board found the Respondent Fernatt was not eligible for military service credit in PERS. The circuit court reversed that decision and held that Respondent Fernatt was entitled to receive the full five years of military service credit based upon his service record.

B. West Virginia Code § 5–10–15

When West Virginia Code § 5–10–15 was originally enacted in 1961, State employees participating in PERS were entitled to receive military service credit only if they actively served in the military during a time of compulsory service.³ In 2000, the West Virginia Legislature enacted a revised PERS provision, West Virginia Code § 5–10–15b,⁴ granting up to five years of military service credit to PERS members who served on active duty during a “period of armed conflict.” SeeW.Va.Code § 5–10–15(a)(2). The statute provides that “for purposes of this section” the term “period of armed conflict” is defined as:

the Spanish–American War, the Mexican border period, World War I, World War II, the Korean conflict, the Vietnam era, the Persian Gulf War and any other period of armed conflict by the United States, including, but not limited to, those periods sanctioned by a declaration of war by the United States Congress or by executive or other order of the President.

Id. § 5–10–15(b)(1). The statute thereafter sets forth specific beginning and ending dates ⁵ for each of the named “period[s] of armed conflict,” and provides that credit may...