Samaha v. Grafton County , 126 N.H. 583 ( 1985 )

Per curiam.

The plaintiff, a retired clerk of the superior court, brings this action to require Grafton County to pay into the New Hampshire Retirement System (NHRS) the funds necessary to allow the plaintiff to be reinstated in the retirement system by “buying back” prior service credit for the period from July 1, 1947, to March 1, 1965. The Superior Court (Dickson, J.) entered judgment for the plaintiff pursuant to the recommendation of a Master (R. Peter Shapiro, Esq.) and ordered the defendants to pay into the NHRS all funds necessary to effect the “buy back,” except the actual contribution the plaintiff would have made had he been enrolled for that period.

Under the trial court’s order the county’s share of the “buy back” will be $79,988.11; the plaintiff’s share will be $5,177.01. The defendants appealed the superior court order, and we reverse.

The plaintiff served as the Clerk of the Grafton County Superior Court from July 1, 1947, until March 1, 1965. On January 29, 1947, Grafton County elected to participate in the NHRS. The plaintiff, however, was not enrolled in the NHRS. In 1965 the plaintiff became the Clerk of the Rockingham County Superior Court, where he remained until his retirement in 1983.

As of January 1, 1974, the New Hampshire Superior Court created a retirement system designed specifically for its clerks of court and associate clerks of court. The plaintiff became a member of this special clerks’ retirement system and was given prior service credit back to 1947, the time when he began his employment as the clerk of the superior court in Grafton County.

In 1974, Rockingham County elected to participate in the NHRS, and the plaintiff was also enrolled in that system. At that time, Rockingham County allowed the plaintiff to obtain prior service credit back to 1965. The plaintiff continued to participate in the NHRS until his retirement in 1983.

The plaintiff is presently receiving his vested benefits under the NHRS for his years of service as clerk of the superior court in Rockingham County from 1965 until 1983, and his vested retirement benefits under the special clerks of court retirement system for his years of service as a clerk of the superior court in both Grafton and Rockingham Counties from 1947 until 1983.

At issue in this appeal is the propriety of the superior court’s order requiring Grafton County to fund plaintiff’s “buy back” of prior service credit from July 1, 1947, until March 1, 1965. The plaintiff claims that his right to the “buy back” is provided by RSA chapter 100-A and this court’s decision in State Employees’ Association of N.H. v. Belknap County & a., 122 N.H. 614, 448 A.2d 969 (1982).

In order to determine whether the plaintiff is entitled to a “buy back” under RSA chapter 100-A, we must consider the meaning and applicability of that statute, as well as the effect of the plaintiff’s enrollment in the separate publicly funded retirement system established by the judiciary for the clerks of court.

In our interpretation of a statute, we first review the plain meaning of its language. In re Robyn W., 124 N.H. 377, 379, 469 A.2d 1351, 1352 (1983). The plaintiff’s request for a “buy back” is precluded by the plain language of RSA chapter 100-A. RSA 100-A: 28 provides in pertinent part that:

“This retirement system and the provisions hereof shall not apply to any person benefited by or entitled to participate under any other provisions of law which provides wholly or in part at the expense of the state or any other employer, for retirement benefits for employees . . . with respect to the same period of service for which they are eligible for benefits under the terms of this chapter.”

RSA chapter 100 created the Employees’ Retirement System of the State of New Hampshire (ERSNH) and contained a similar section, effective in 1945. Laws 1945,183:17 (“The retirement system... shall not apply to any person benefited by or entitled to participate under any other provision of law . . . which provides ... at the expense of the ... state or of any subdivisions thereof, for retirement benefits for employees by the state....”) RSA 100:18, titled “Limitation on Membership,” limited membership in the NHRS to employees not enrolled in other publicly funded retirement systems. Subsequent amendments to the original act have merely clarified the original legislative intent. See Blue Mountain Forest Ass’n v. Town of Croydon, 119 N.H. 202, 205, 400 A.2d 55, 57 (1979).

Under RSA 100-A:20,1 (formerly RSA 100:29 for the predecessor system ERSNH), a “local retirement system” is defined as “any retirement system . . . which is supported wholly or in part by public funds . . . [and] employees who are members of any local retirement system . . . shall be entitled to become members [of NHRS] only as provided in RSA 100-A:21.” Section 21 provides in pertinent part that:

“[S]uch employees shall participate in [NHRS] as though such local retirement system were not in operation. The retirement allowances being paid by the local retirement system on the date such participation in [NHRS] becomes effective shall be continued and paid at their existing rates by [NHRS]

RSA 100-A:21 (formerly RSA 100:23 for the predecessor system ERSNH).

In State Employees’ Association of N.H. v. Belknap County & a., 122 N.H. 614, 622, 448 A.2d 969, 973 (1982), we held that the county had “an absolute and unambiguous obligation” to enroll all employees hired after the adoption of NHRS by the county. That case, however, does not mandate a “buy back” on behalf of the plaintiff in this case for a number of reasons.

First, the plaintiff was not an employee of Grafton County. In determining whether an employer-employee relationship exists, courts generally consider factors such as managerial and fiscal control. Reconstruction Finance Corp. v. Merryfield, 134 F.2d 988, 991-92 (1st Cir. 1943); see also Restatement (Second) op Agency § 2(1) and § 220 (1958). During his service there, the county did not have the right to exercise fiscal or managerial control over the plaintiff, nor the power to set his salary, hire or fire him. These functions were performed by the superior court, acting as a body. RSA 499:1, :12. N.H. CONST, pt. II, art. 82. It is thus at this point that we part company with the dissent.

Contrary to the plaintiff’s argument, RSA 30:1 (Supp. 1983) merely provides for an annual accounting of transactions by the clerk of court to the county and does not determine the clerk’s status as an employee of the county. Nor does the title of this statute, “Annual Reports of County Officers,” mean that the clerks of court are county employees. We have held that the title of a statute is not conclusive of its interpretation provided that the statute’s language is clear and unambiguous. State v. Kilgus, 125 N.H. 739, 742, 484 A.2d 1208, 1212 (1984) (citing In re Vernon E., 121 N.H. 836, 841, 435 A.2d 833, 836 (1981)). The purpose of this statute is to provide county and town officials with financial information. Since the expenditures reported are made out of county funds, the county is entitled to such information. The reporting requirement found in RSA 30:1, however, does not indicate that the county exercises managerial control over the plaintiff, so as to create an employer-employee relationship. See Reconstruction Finance Corp. v. Merryfield, supra.

Second, unlike the Belknap County case, the superior court in this case has specifically found that: (1) no official of NHRS has ever objected to the exclusion of the clerk of court from the retirement system, (2) Grafton County has never refused to enroll any employee, and (3) Grafton County has not practiced discrimination among its employees with respect to participation in NHRS. Thus, Grafton County has committed no wrong for which it should be subjected to the type of remedy provided in the Belknap County case.

Finally, the judicial branch has recognized that enrollment of the clerks of court in NHRS is not mandatory, by authorizing the establishment of a separate retirement system for the clerks of court. See also RSA 490:29 (Supp. 1983) (the legislature has concurred by allowing non-judicial employees to elect membership in either a local retirement system or NHRS). The superior court has, thus, established a policy making participation in NHRS optional for the clerks of court. This is a policy which the counties, and Grafton County in particular, have had no ability to challenge or reverse.

Since the clerks of superior courts were not and are not county employees, and their enrollment in the NHRS is optional, the reasoning of the Belknap County case does not govern them. Additionally, the plaintiff’s enrollment in the publicly funded clerks’ retirement system precluded his participation in NHRS. See RSA 100-A:20, :21 and :28.

Having reached our decision based upon a statutory analysis of RSA chapter 100-A, we need not reach the additional issues raised on appeal. Accordingly, we reverse the superior court order.

Reversed.

Batchelder, J., dissented.