West Virginia Public Employees Retirement System v. Dodd

• Decision Date: 20 July 1990
• Docket Number: No. 19205,19205
• Citation: 396 S.E.2d 725,183 W.Va. 544
• Parties: WEST VIRGINIA PUBLIC EMPLOYEES RETIREMENT SYSTEM v. Charles H. DODD.
• Court: West Virginia Supreme Court

Page 725

396 S.E.2d 725

183 W.Va. 544

WEST VIRGINIA PUBLIC EMPLOYEES RETIREMENT SYSTEM v. Charles H. DODD.

No. 19205.

Supreme Court of Appeals of

West Virginia.

July 20, 1990.

Syllabus by the Court

1. 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.

2. "In considering the constitutionality of a legislative enactment, courts must exercise due restraint, in recognition of the principle of the separation of powers in government among the judicial, legislative and executive branches. [ W.Va. Const. art. V, § 1.] Every reasonable construction must be resorted to by the courts in order to sustain constitutionality, and any reasonable doubt must be resolved in favor of the constitutionality of the legislative enactment in question. Courts are not concerned with questions relating to legislative policy. The general powers of the legislature, within constitutional limits, are almost plenary. In considering the constitutionality of an act of the legislature, the negation of legislative power must appear beyond reasonable doubt." Syl. pt. 1, State ex rel. Appalachian Power Co. v. Gainer, 149 W.Va. 740, 143 S.E.2d 351 (1965).

3. The Act on the "Disqualification for Public Retirement Plan Benefits," W.Va.Code, 5-10A-1 to 5-10A-10 [1976], is not unconstitutional as cruel and unusual, or disproportionate, punishment ( W.Va. Const. art. III, § 5), as a bill of attainder or bill of pain and penalties or an ex post facto law ( W.Va. Const. art. III, § 4), as an impairment of contract ( W.Va. Const. art. III, § 4), as a deprivation of property without due process of law ( W.Va. Const. art. III, § 10) or as a forfeiture of estate ( W.Va. Const. art. III, § 18). Furthermore, that Act is exempt, under 29 U.S.C. § 1003(b)(1) (1988), from the section of the Employee Retirement Income Security Act of 1974, as amended, on nonforfeitability of a normal retirement benefit, 29 U.S.C. § 1053(a) (1988).

David R. Janes, Tharp, Liotta & Janes, Fairmont, for Charles H. Dodd.

Roger W. Tompkins, Atty. Gen. and Thomas J. Gillooly, Sr. Deputy Atty. Gen., Charleston, for West Virginia Public Employees Retirement System.

McHUGH, Justice:

This appeal from a final order of the Circuit Court of Kanawha County, West Virginia, raises issues concerning the forfeiture of public retirement plan benefits as the result of certain misconduct. We believe the circuit court ruled correctly on the main issue, specifically, that the appellant had forfeited his public pension due to "less than honorable service." This Court therefore affirms the circuit court's final order, for the reasons set forth herein.

I

The appellant, Charles H. Dodd, the respondent below, was born in December, 1920, and was employed in public service in this state continuously from 1951 through 1985. From 1951 to 1971, he was a deputy sheriff of Marion County, West Virginia, including many years as chief deputy sheriff. From 1971 through 1980, he was the clerk of the circuit court of Marion County. From 1981 until his resignation in December, 1985, he was the sheriff of Marion County. The appellant was a member of the West Virginia Public Employees Retirement System ("PERS") from its inception in July, 1961; in addition, he had thirteen years of prior, noncontributing service credit under PERS.

In anticipation of his retirement, the appellant, in November, 1985, applied to PERS for a retirement pension of about $1,800 per month. In May, 1986, the appellant entered a plea of guilty, in the United States District Court for the Northern District of West Virginia, to an information charging him with the felony of interference with commerce under color of official right, in violation of 18 U.S.C. § 1951, as amended (popularly known as "the Hobbs Act"). This criminal plea related to the appellant's having accepted $200 to $500 on each of at least two, and as many as six, occasions between April and December, 1981, in exchange for his not enforcing anti-gambling laws against a certain gambling establishment operating illegally in Marion County. For this felony conviction the appellant was fined $3,000 and was placed on probation for three years.

In June, 1986, PERS, the petitioner below and the appellee here, notified the appellant, pursuant to W.Va.Code, 5-10A-3 [1976], that he was not eligible to receive the requested retirement pension because his aforestated felony conviction, based upon conduct related to, and committed while holding, his office, caused his public service to be "less than honorable service," within the meaning of W.Va.Code, 5-10A-2(e)(2) [1976]. ¹ Pursuant to W.Va.Code, 5-10A-4 [1976], the appellant timely demanded that the appellee seek a determination in circuit court of the appellant's ineligibility for the pension due to less than honorable service. ² In October, 1986 PERS filed a petition seeking such a determination. ³

Immediately after conducting an evidentiary hearing in November, 1986, the Circuit Court of Kanawha County ruled orally that the appellant's public service was "less than honorable service." A letter memorandum of opinion was not furnished until November, 1987, and a "final order" incorporating the memorandum of opinion was not entered until November 2, 1988. ⁴

II

The appellant argues before us, as he did before the circuit court, that he should be denied only the portion of the pension for the period after 1980, during which he had committed the felony and had concealed it. We disagree.

W.Va.Code, 5-10A-1 [1976] sets forth, in clear terms, the legislative findings and declarations with respect to the Act on the "Disqualification for Public Retirement Plan Benefits," W.Va.Code, 5-10A-1 to 5-10A-10 [1976] ("the Act"):

The Legislature finds and declares that every retirement plan instituted and created under the laws of this state has from the inception thereof contemplated and each now contemplates that the service rendered by any participating public officer or employee shall at all times be honorable. The Legislature further finds and declares that honorable service is a condition to receiving any pension, annuity, disability payment or any other benefit under a retirement plan.

(emphasis added) That the legislative intent under the Act is for the public service to be honorable "at all times" is also indicated by the clear language of W.Va.Code, 5-10A-9 [1976], which provides, in relevant part, that the right to receive any public retirement plan benefit is conditioned upon the rendering of honorable service "throughout the service in public employment or public office[.]" (emphasis added) ⁵

The Act's insistence upon honorable service by a public officer or a public employee as a condition precedent to receiving a public retirement plan benefit is declarative of the preexistent common law in this state. For example, syllabus point 3, in material part, of State ex rel. Fox v. Board of Trustees, 148 W.Va. 369, 135 S.E.2d 262 (1964), states that a public pension statute necessarily implies that the public service must be honorable: "Though the statute does not expressly mention the kind of service required of a member of a municipal police department to entitle him to a pension, it is necessarily implied that the service rendered must be honorable service[.]" See also Cawley v. Board of Trustees, 138 W.Va. 571, 581, 76 S.E.2d 683, 689 (1953) (where statutory conditions for retirement have been met, right to public pension becomes vested "in the absence of fault" on the part of public officer or public employee).

Quoting Fromm v. Board of Directors, 81 N.J.Super. 138, 143, 195 A.2d 32, 34 (App.Div.1963), which, in turn, paraphrased Plunkett v. Board of Pension Commissioners, 113 N.J.L. 230, 233, 173 A. 923, 924 (Sup.Ct.1934), aff'd, 114 N.J.L. 273, 176 A. 341 (Ct.Err. & App.1935), this Court in Fox, 148 W.Va. at 378, 135 S.E.2d at 267, observed that, even without an express statutory requirement of honorable public service, " '[i]t is, of course, axiomatic that one of the fundamental purposes of the pensioning of civil servants is to secure good behavior and the maintenance of reasonable standards of discipline during service.' " In other words, public service, compensated at public expense, is a public trust and necessarily implies faithful service. See W.Va. Const. art. III, § 2. This concept was discussed in, for example, Makwinski v. State Board of Commissioners, 76 N.J. 87, 90, 385 A.2d 1227, 1229 (1978), where the court remarked that a public pension is an inducement to conscientious and efficient public service, which inducement would be immeasurably lessened if the public officer or public employee was entitled to assert an indefeasible claim to a public pension simply because that officer's or employee's dishonorable conduct occurred after the officer or employee had served the statutorily required minimum number of years of service. See also Makwinski, 76 N.J. 87, 93, 385 A.2d 1227, 1231 (Pashman, J., concurring) (paramount importance of public officers or public employees acting honorably in accordance with public trust placed in them is self-evident; dishonorable service requires total forfeiture of public pension, even one which has otherwise "vested" after many years of service).

Furthermore, 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. In Fox, the misconduct occurred in sixteen out of twenty-five years. This Court upheld a total forfeiture of the public pension, and did not prorate the forfeiture so as to eliminate service credit for the pension only for the sixteen years of dishonorable service. "The requirement of honorable service has been held to continue during the entire period of active...