Nev. Pub. Emps. Ret. Bd. v. Smith ( 2013 )

129 Nev., Advance Opinion 405
IN THE SUPREME COURT OF THE STATE OF NEVADA
NEVADA PUBLIC EMPLOYEES No. 56801
RETIREMENT BOARD, AND ITS
BOARD MEMBERS; SUE
DEFRANCESCO; CHARLES
SILVESTRI; ELIZABETH FRETWELL;
PURISIMO HERNANDEZ; DAVID F.
KALLAS; GEORGE STEVENS; AND FILED
WARREN WISH,
Appellants,
vs.
DOUGLAS E. SMITH,
Respondent.
Appeal from a district court order granting declaratory and
other relief as to certain statutes governing the Public Employees'
Retirement System. Eighth Judicial District Court, Clark County;
Andrew J. Puccinelli, Visiting Judge.
Reversed.
Woodburn & Wedge and W. Chris Wicker and Jessica H. Anderson, Reno,
for Appellants.
Chuck R. Gardner, Las Vegas,
for Respondent.
BEFORE THE COURT EN BANC.
OPINION
By the Court, PICKERING, C.J.:
On this appeal we consider NRS 286.541(2), governing
retirement by members of the Public Employees' Retirement System
/3
(PERS). PERS interprets NRS 286.541(2) as limiting retirement
eligibility. In its view, a member who goes from one PERS-eligible job to
another without a break in service and retiring from PERS may not
thereafter retire and receive benefits from PERS, until the member
effectively retires from his or her new PERS-eligible job. A contrary
interpretation, PERS maintains, would allow in-service distributions,
violating NRS 286.541 and the Internal Revenue Code plan-qualification
provisions on which PERS depends.
The district court disagreed. In its view, NRS 286.541(2)
determines retirement benefit dates, not retirement eligibility. Thus, the
district court held that PERS should have allowed respondent Douglas
Smith to retire and receive benefits from PERS based on his prior public
service, even after he was sworn in as a district court judge, another
PERS-eligible position. The district court also held that, under NRS
286.190(3)(a), PERS could and should have equitably excused Judge
Smith's noncompliance with NRS 286.541, and allowed him to reverse his
eventual election to transfer from PERS to the Judicial Retirement
System (JRS), despite NRS 1A.280(6), which makes such an election
irrevocable.
The district court erred in its interpretation of the controlling
statutes and in reviewing the PERS Board's decision de novo, rather than
deferentially. We therefore reverse and reinstate the PERS Board's
determination that Judge Smith is not eligible to receive retirement
benefits at this time.
I.
Public Employees' Retirement System members may not
receive PERS retirement benefits until they effectively retire from PERS.
2
NRS 286.541. 1 Under NRS 286.520(1)(a)(2), benefit payments ordinarily
cease if a retired employee resumes work for a PERS-eligible employer.
But NRS 286.520(5) provides an exception for "a retired employee [who] is
chosen by election or appointment to fill an elective public office." Such a
retired employee may continue receiving PERS benefits, so long as the
new office is not the same as the office in which the employee earned the
benefits.
In this case, respondent Douglas Smith meant to avail himself
of NRS 286.520(5). A sitting justice of the peace with 23 years of
creditable PERS service, Judge Smith ran for and was elected to the
Eighth Judicial District Court in November of 2008. He planned to retire
as a justice of the peace, start receiving benefits (reduced for early
retirement) from PERS, take office as a district court judge, and then elect
to participate in JRS rather than PERS. 2 Judge Smith believed that this
would allow him to receive PERS retirement benefits, in addition to his
1 Judge Smith disputes PERS's use of the word "retire," claiming it
muddies the difference between retirement from a place of employment
and retirement from PERS membership. As indicated in NRS 286.401,
"[a] retired employee" is a person who has terminated his or her
membership in PERS, and we will use the statutory meaning of "retire"
here, with the understanding that "retiring from PERS" is a more efficient
way of saying "effectively retire for the purpose of collecting benefits from
PERS."
Under NRS 286.293(1), most public employees must enroll as
members of PERS. In 2001, the Legislature formed the Judicial
Retirement System to transition retirement benefits for certain judicial
officers, including district court judges and some justices of the peace,
from PERS to JRS. NRS 1A.100(1). The PERS Board administers JRS.
NRS 1A.170.
3
district judge salary, while accruing a second set of retirement benefits
under JRS, eventually receiving benefits under both PERS and JRS. 3
Judge Smith consulted PERS staff in November and December
2008 about retirement options. He received estimates based on different
scenarios, using an expected retirement date of December 31, 2008. PERS
staff also provided Judge Smith with materials explaining how PERS
determines effective retirement dates and the implications of taking other
public employment before and after retiring from PERS. The PERS
Preretirement Guide includes a section, "Some Pitfalls and How to Avoid
Them," which cautions: "As we have stated before, your effective date of
retirement is the day after your last day of employment, the day your
application is received [by] PERS . . . , or the date requested on the
application, whichever is later.. . . You must take the initiative. No one
will automatically do it for you, and no one, including your public
employer, can file your retirement paperwork." Public Employees'
Retirement System of Nevada, Preretirement Guide 13 (March 2008
revision).
Separately, Judge Smith consulted Clark County about health
insurance. Justices of the peace are paid by the County, while district
judges are paid by the State, and Judge Smith faced a gap between plans.
Judge Smith learned that he could extend his and his family's County-
3 NRS 1A.280(7) states that, "No justice of the Supreme Court or
district judge. . . may receive benefits under both this chapter [JRS] and
chapter 286 [PERS] of NRS." We requested and received supplemental
briefing from the parties on the impact of this statute on Judge Smith's
plan to participate in both JRS and PERS. Because we decide this case by
reinstating the Board's determination, which rested on NRS 286.541(2)
and NRS 286.190(3)(a), we do not reach, and express no opinion on, how
NRS 1A.280(7) may have impacted Judge Smith's plans.
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paid health insurance up to February 1 if he continued as a justice of the
peace into January. Under the Nevada Constitution, Article 6, Section 5,
Judge Smith's term as a district judge began, and he was sworn in, on
January 5, 2009, the first Monday in January. To maximize his insurance
coverage, Judge Smith provided a resignation letter to Clark County
designating Sunday, January 4, 2009, as his last day as justice of the
peace. Clark County reported Judge Smith's termination date as January
4, 2009, and afforded him insurance coverage through January 31, 2009.
Judge Smith received his last Clark County paycheck on December 19,
2008.
Judge Smith waited until January 8, 2009, to file the papers
required to retire from PERS. 4 By then, he had been sworn in as a district
court judge. In that capacity, he was employed by a PERS-eligible
employer and earning creditable service with PERS. After research,
PERS staff determined that, consistent with NRS 286.541(2), Judge Smith
could not retire from PERS while employed in a PERS-eligible position.
PERS therefore denied Judge Smith's application for retirement benefits.
Judge Smith appealed staffs determination to the PERS
Board. At the PERS Board hearing, Judge Smith cited NRS 286.190(3)(a)
and asked for an equitable exception to NRS 286.541(2). He acknowledged
that PERS staff made no misrepresentations to him but argued that it was
unduly harsh to deny him early retirement benefits because he filed his
paperwork three days late. The Board debated whether it could make an
exception to NRS 286.541(2) and, if so, whether it would be allowing an in-
4Judge
Smith suggested to the PERS Board that he faxed these
papers to PERS on January 5. The Board rejected this claim, since the
papers were not notarized until January 6 and bore a fax date of January
8.
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service distribution and deviating from operational guidelines, which
could jeopardize PERS with the IRS.
The Board denied Judge Smith's appeal in its written findings
of fact, conclusions of law, and decision. It held that "[t]he applicable
provisions of the Retirement Act [NRS 286.541(2)] clearly prohibit a
member from retiring while he is actively employed and receiving service
credit." Addressing Judge Smith's request for equitable relief, the Board
first determined that NRS 286.190(3)(a) did not apply, since "Judge Smith
could not point to any erroneous representation by [PERS] upon which he
reasonably and detrimentally relied." Second, the Board concluded that
"allowing a 'retired' member to be employed and accrue service credit, with
no clear break from service, violates the Internal Revenue Service's 'in
service distribution' rule and could jeopardize the entire retirement
fundfls status as a qualified retirement plan."
Under NRS 1A.280(3)(a), Judge Smith had until March 31,
2009, to give written notice that he intended to withdraw from PERS and
participate in JRS. See supra note 2. If he did not, he would
automatically remain in PERS. NRS 1A.280(5). Judge Smith signed and
faxed his JRS election form on March 31. The form states, "I, Douglas E.
Smith, hereby elect to withdraw from the Public Employees' Retirement
System (PERS) and become a member of the Judicial Retirement System
(JRS) pursuant to NRS 1A.280. I understand that this election is
irrevocable and that I may not reestablish my service in PERS under any
circumstances." Judge Smith transmitted the election form under a letter
stating that he was doing so "under protest as there is an open appeal
process on going." Pursuant to Judge Smith's election, PERS calculated
its retirement benefits liability to him at more than $1 million. On June
15, 2009, PERS transferred that sum to JRS, which has invested and
6
managed it since. The PERS Board's denial of Judge Smith's retirement
application has not cost Judge Smith a loss of creditable service or any
associated benefits.
Judge Smith petitioned for judicial review. After discovery, he
and PERS stipulated to submit the dispute to the district court on the
depositions taken and documents produced during discovery and the
PERS Board hearing transcript and record. The district court thereafter
entered its written findings of fact, conclusions of law, and order. It
reversed the PERS Board's decision to deny Judge Smith's retirement
application, declared a retroactive retirement date of January 8, 2009, and
ordered PERS to pay all retirement payments due retroactive to January
8, 2009. PERS timely appealed.
A.
Although not subject to the Administrative Procedure Act,
"[t]he decisions of the PERS Board are reviewable by the courts on the
basis of the same standard of review applied to other administrative
actions." State ex rel. Dep't of Transp. v. Pub. Emps.' Ret. Sys., 120 Nev.
19, 23, 83 P.3d 815, 817 (2004). The court may not "substitute its
judgment of the evidence for that of the administrative agency." Id.(quoting United Exposition Serv. Co. v. SIIS, 109 Nev. 421, 423, 851 P.2d
423, 424 (1993)). "When the factual findings of the administrative agency
are supported by [substantial] evidence, they are conclusive, and the
district court is limited to a determination of whether the agency acted
arbitrarily or capriciously." Mishler v. Nev. Bd. of Med. Exam'rs, 109 Nev.
287, 292, 849 P.2d 291, 294 (1993). "Substantial evidence is evidence
which a reasonable mind might accept as adequate to support a
7
conclusion." Schepcoff v. State Indus. Ins. Sys., 109 Nev. 322, 325, 849
P.2d 271, 273 (1993).
On appeal, this court "reviews questions of statutory
construction and the district court's legal conclusions de novo." I. Cox
Constr. Co. v. CH2 Invs., L.L.C., 129 Nev. „ 296 P.3d 1202, 1203
(2013). "However, an administrative agency charged with the duty of
administering an act is impliedly clothed with the power to construe the
relevant laws and set necessary precedent to administrative action, and
the construction placed on a statute by the agency charged with the duty
of administering it is entitled to deference." Elliot v. Resnick, 114 Nev. 25,
32 n.1, 952 P.2d 961, 966 n.1 (1998). "[When an agency's conclusions of
law are closely related to its view of the facts, those conclusions are
entitled to deference, and we will not disturb them if they are supported
by substantial evidence." Fathers & Sons & A Daughter Too v. Transp.
Servs. Auth., 124 Nev. 254, 259, 182 P.3d 100, 104 (2008).
B.
NRS 286.541(2) defines when a PERS member's retirement
becomes effective. It reads in its entirety:
Except as otherwise required by NRS 286.533, [5]
retirement becomes effective on whichever of the
following days is the later:
(a) The day immediately following the
applicant's last day of employment;
(b) The day the completed application form
is filed with the System;
5 NRS 286.533 states that, "Notwithstanding any other provision of
law, every distribution to a member must be made pursuant to the
provisions of section 401(a)(9) of the Internal Revenue Code, 26 U.S.C. §
401(a)(9), that apply to governmental plans."
8
(c) The day immediately following the
applicant's last day of creditable service; or
(d) The effective date of retirement specified
on the application form.
To retire from PERS, NRS 286.541(1) requires the member to
file a completed application for service retirement allowances with PERS.
NRS 286.541(2) defines the effective date of retirement from PERS. It is
the later of the four listed conditions. It can be the day after the
employee's last day of employment, if the other three conditions have been
met. NRS 286.541(2)(a). It can be the day the completed application form
is filed with PERS, if the other three conditions have been met. NRS
286.541(2)(b). It can be the day after the employee's last day of creditable
service, if the other conditions have occurred. NRS 286.541(2)(c). Or it
can be the effective date specified on the application, again if the other
three conditions have been satisfied. NRS 286.541(2)(d). Even if an
employee has met all the other conditions of NRS 286.541(2), paragraphs
(a) and (c) preclude that employee from effectively retiring until the day
after the employee's last day of creditable service, whichever is later.
Together, paragraphs (a) and (c) thus prevent an in-service distribution.
But the district court held that NRS 286.541(2) sets a
retirement date only for purposes of calculating benefits, thus allowing
Judge Smith to retire from PERS even after going to work for a PERS-
eligible employer. It reasoned that the statute is codified in the benefits
section of NRS Chapter 286 and that PERS's retirement application states
retirement benefits are effective on whichever event listed in NRS
286.541(2)(a)-(d) occurs last. This interpretation is surely wrong. It
contradicts the plain language of the statute, and "[w]ords may not be
supplied in a statute where the statute is intelligible." 2A Norman J.
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Singer & J.D. Shambie Singer, Statutes and Statutory Construction §
47:38 (7th ed. 2007).
Here, the statute conveys in no uncertain terms that
retirement from PERS becomes effective when the last of the four specified
events occurs. The statute does not establish a retirement date for a
limited purpose, and it never uses the word "benefits." Although the
district court is correct that NRS 286.541(2) is codified in the benefits
section of Chapter 286, the statute defines eligibility to receive benefits. It
would not make sense if NRS 286.541(2) applied solely to calculating
benefits because other sections, such as NRS 286.495 and NRS 286.510,
explain credit for service and how a member's designated retirement date
affects his or her benefits. But there is no other statute that defines what
conditions must be met before a member can effectively retire.
"While not controlling, an agency's interpretation of a statute
is persuasive," State v. Morros, 104 Nev. 709, 713, 766 P.2d 263, 266
(1988), when the statute is one the agency administers. Elliot, 114 Nev. at
32 n.1, 952 P.2d at 966 n.1. The PERS Board governs PERS. See NRS
286.120. It has interpreted NRS 286.541(2) so as to comport with the
statute's language and PERS's overarching obligation to comply with the
Internal Revenue Service provisions applicable to governmental
retirement plans. PERS indicates in its Preretirement Guide and its
briefs that it does not limit NRS 286.541 to the calculation of benefits.
Instead, PERS determines a member's effective retirement date based on
information the member provides and which of the four events listed in
NRS 286.541(2) occurs last. Thus, we conclude that an employee cannot
effectively retire from PERS until the day when the last of the four
enumerated requirements is complete.
10
C.
Here, Judge Smith remained an active PERS member until
March 31, 2009, when he elected to transfer to JRS. The Board decided
that the earliest Judge Smith could have effectively retired would have
been January 8, 2009, "[t]he day the completed application form [was]
filed with the System." NRS 286.541(2)(b). But because Judge Smith took
his elected office on January 5, 2009, PERS received the application while
he was employed in a PERS-eligible job. Under paragraphs (a) and (c) of
NRS 286.541(2), a member still employed in a PERS-eligible job may not
receive retirement benefits. After all, a person who continues PERS-
eligible employment has not yet reached an effective "last day of
employment" or "last day of creditable service." NRS 286.541(2)(a), (c).
Judge Smith's JRS election further complicates matters since
he no longer has a PERS account from which he could draw benefits; all
PERS contributions and liabilities have been transferred to JRS. The
district court held that Judge Smith could revoke his JRS election because
"[ti]ls hand was essentially forced." We recognize that Judge Smith's
dispute with the PERS Board affected his decision to join JRS, but NRS
1A.280 plainly does not allow an employee to revoke his decision.
Pursuant to NRS 1A.280(6), a judge who exercises the option to switch
from PERS to JRS "may not re-establish the service for which the
liabilities were transferred." Accordingly, after the Board transferred
Judge Smith's accrued benefits from his PERS account to his new JRS
account, he can no longer participate in or receive benefits from PERS.
Judge Smith next argues that, even assuming his failure to
retire from PERS before becoming a district court judge disqualified him
from thereafter retiring and receiving benefits from PERS, the PERS
11
Board should have granted him equitable relief under NRS 286.190(3)(a).
This statute provides that the PERS Board:
May:
(a) Adjust the service or correct the records,
allowance or benefits of any member, retired
employee or beneficiary after an error or inequity
has been determined, and require repayment of
any money determined to have been paid by the
System in error, if the money was paid within 6
years before demand for its repayment.
NRS 286.190(3)(a) (emphasis added). NRS 286.190(4) defines "error or
inequity" as "the existence of extenuating circumstances, including, but
not limited to, a member's reasonable and detrimental reliance on
representations made by the System or by the public employer pursuant to
NRS 286.288 which prove to be erroneous, or the mental incapacity of the
member."
Citing NRS 286.190(3), the district court held that the Board
was required to grant Judge Smith equitable relief. But this reading
ignores the statute's use of the permissive "may." "It is a well-settled
principle of statutory construction that statutes using the word 'may' are
generally directory and permissive in nature, while those that employ the
term 'shall' are presumptively mandatory." Nev. Comm'n on Ethics v.
JMA I Lucchesi, 110 Nev. 1, 9-10, 866 P.2d 297, 302 (1994). The district
court's reading contravenes the presumption that every word, phrase, and
provision—here, the word "may"—in a statute has meaning. Law Offices
of Barry Levinson, P.C. v. Milko, 124 Nev. 355, 366-67, 184 P.3d 378, 386-
87 (2008); In re Prosole, 32 Nev. 378, 383, 108 P. 630, 632-33 (1910).
"A statute's express definition of a term controls the
construction of that term no matter where the term appears in the
statute," so NRS 286.190(4)'s definition of "error or inequity" controls.
Williams v. Clark Cnty. Dist. Attorney, 118 Nev. 473, 485, 50 P.3d 536, 544
12
(2002); 1A Norman J. Singer, Statutes and Statutory Construction § 20:8
(6th ed. 2002). Under NRS 286.190(4), error or inequity signifies
extenuating circumstances, such as detrimental reliance or mental
incapacity of the member. Although its use of "including, but not limited
to" makes NRS 286.190(4)'s list of extenuating circumstances
nonexhaustive, it is significant that none of the examples involves
employee fault or neglect.
Judge Smith and our dissenting colleagues cite Nevada Public
Employees Retirement Board v. Byrne, 96 Nev. 276, 607 P.2d 1351 (1980),
arguing that "our courts have the inherent power to seek and to do
equity." This is a true statement but the circumstances in Byrne were
much different from Judge Smith's. In Byrne, PERS incorrectly told an
employee he would receive $725.35 a month upon retirement, but when
the employee retired, he received a mere $86.78 a month. Id. at 278, 607
P.2d at 1352. Here, PERS gave Judge Smith accurate "Estimated
Calculations" every time he requested information about his retirement
options. Unlike Byrne, nothing suggests that the Board falsely or
incorrectly recorded Judge Smith's information or gave him inaccurate
information on which he detrimentally relied. In fact, as the Board noted,
Judge Smith acknowledged that PERS staff made no misrepresentations.
It appears that he chose to delay sending his retirement notice so as to
ensure no gap in health insurance coverage as he changed jobs; this was
his choice, not one PERS recommended. Judge Smith admitted that he
did not read the materials PERS provided him. He failed to file his PERS
retirement application before January 5, 2009, because he assumed that
timing did not matter. Judge Smith relied on his own assumptions to his
detriment.
13
The dissent would remand this matter back to the PERS
Board with instructions "to make specific findings of fact and conclusions
of law under its equitable powers set forth in NRS 286.190(3)." But the
PERS Board has already done so. Thus, its written findings of fact,
conclusions of law, and decision consider and reject application of Byrne
because in Byrne, unlike this case, PERS made the error in calculation, on
which the employee relied to his detriment. In this case, by contrast, the
Board found that Judge Smith "has not alleged any error in his records, or
the calculation or amount of his benefit." He asks "the Board [to] change
the 'effective date of his retirement." This the Board declined to do,
because it would "violate[ ] the Internal Revenue Service's 'in service
distribution' rule and could jeopardize the entire retirement fund ['is status
as a qualified retirement plan." 6
NRS 286.190(3)(a) permits the Board to "[a] djust the service
or correct the records" of a member or retired employee after "an error or
inequity has been determined." By definition, "adjust" means to bring
something into a proper state, and "correct" is to make something true,
accurate, or right. Concise Oxford English Dictionary 16, 321 (11th ed.
2008). But as the Board found, its records and calculation of Judge
Smith's service were accurate. What Judge Smith sought was to have the
Board rewrite its records to establish an earlier retirement date than the
true record and application of NRS 286.541(2) would dictate. According to
the Board, this placed the plan as a whole at risk, because it amounted to
an improper in-service distribution. Such calculated risk avoidance—
involving a subject within the expertise of the Board, not the courts—is
something a court should not lightly second guess. See In re State Eng'r
6 JudgeSmith did not meaningfully contest the PERS Board's
assessment of the IRS risk associated with in-service distributions.
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Ruling 5823, 128 Nev. „ 277 P.3d 449, 453 (2012). Under these
circumstances, we cannot conclude that the PERS Board abused its
discretion when it determined that Judge Smith must wait until he retires
from his current employment to collect his service benefit, none of which
he has lost by reason of the Board's determination in this case.
We therefore reverse.
C.J.
We concur:
J.
Hardesty
Parraguirre
J.
Douglas
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GIBBONS, J., with whom CHERRY and SAITTA, JJ., agree, concurring in
part and dissenting in part:
While I concur with the majority that NRS 286.541(2)
determines the effective date of retirement, I disagree that the Board may
not grant equitable relief pursuant to NRS 286.190(3) and (4).
As a deputy public defender, as a deputy district attorney, and
as an elected justice of the peace, Judge Smith was required to be enrolled
as a member of PERS. In 2001, the Legislature created the Judicial
Retirement System (JRS) for supreme court justices and district judges.
In 2005, the Legislature adopted NRS 1A.285 to allow a justice of the
peace or municipal judge to participate in JRS.
The district court found that, after his election to the Eighth
Judicial District Court in November 2008, Judge Smith advised PERS
that he intended to retire from PERS prior to taking office as a district
judge on January 5, 2009. Judge Smith would then become a member of
the JRS on that date.
PERS sent the necessary paperwork to Judge Smith to
complete for his retirement. The district court found that Judge Smith
retired as a justice of the peace on December 31, 2008, and Judge Smith
ceased having contributions made to PERS on his behalf as of that date.
As set forth in the majority, PERS received Judge Smith's retirement
application on January 8, 2009, or three days after he commenced his
service as an elected district judge.
NRS 286.190 sets forth the general powers of the PERS Board.
NRS 286.190(3)(a) provides in part that the Board "may adjust the service
or correct the records, allowance or benefits of any member, retired
employee or beneficiary after an error or inequity has been
determined. . . ." NRS 286.190(4) defines error or inequity as "the
existence of extenuating circumstances, including, but not limited to, a
member's reasonable and detrimental reliance on representations made by
the System." Contrary to the majority's conclusion, this statute does not
limit the Board's authority to grant equitable relief to PERS members who
make inadvertent mistakes. After he retired on December 31, 2008, Judge
Smith should have delivered his fully executed retirement application to
PERS prior to January 5, 2009. The application required a notarized
signature by Judge Smith's wife consenting to the terms of his retirement
option. There was a delay in obtaining this notarization.
In Nevada Public Employees Retirement Board v. Byrne, 96
Nev. 276, 607 P.2d 1351 (1980), we affirmed the judgment of the district
court estopping the PERS Board from altering the amount and calculation
of retirement benefits it had originally represented to Mr. Byrne and
ordering the payment of those retirement benefits. The PERS Board
argued in part that because it had the inherent power to correct mistakes,
any reliance on its representations was barred. Id. at 279, 607 P.2d at
1353. We disagreed and concluded that our courts have the "inherent
power to seek and to do equity." Id. at 280, 607 P.2d at 1354.
In the present case, the district court found and determined
that "PERS is equitably estopped from denying Judge Smith his PERS
retirement benefits." The district court found and concluded that in
response to reasonable inquires made by Judge Smith, PERS "at no time
informed [Judge Smith] of a deadline for submitting his application.
Neither was this deadline explained in the application packet or the
applicable statutes." The district court further found and concluded that
Judge Smith enrolled in JRS only because of the unresolved status of this
2
litigation. Finally, the district court noted that the enrollment was made
under protest and was hardly voluntary. Based on these findings and
conclusions, the district court properly determined that the Board could
not fairly deny benefits and thus should have turned to its own powers
under NRS 286.190 to do equity.
Therefore, I dissent from the majority's stringent
interpretation of NRS 286.190(3) and (4). The PERS Board does have the
power to remedy an "error or inequity" based upon a mistake of the PERS
retirement applicant. Otherwise, a minor error may reduce significant
retirement benefits which the applicant has earned over many years of
service. The PERS Board has the equitable power to rescind the
enrollment by Judge Smith in the JRS. Since we do not make factual
findings, I would reverse the judgment of the district court with
instructions to remand this case to the PERS Board to make specific
findings of fact and conclusions of law under its equitable powers set forth
in NRS 286.190(3) and (4) regarding the extenuating circumstances in this
case.
J.
Gibbons
3