Brian Wilson v. Wa State Dept. Of Retirement Systems

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
BRIAN WILSON, ) No. 79867-7-I
)
Respondent, )
) DIVISION ONE
v. )
)
WASHINGTON STATE DEPARTMENT )
OF RETIRMENT SYSTEMS, )
) PUBLISHED OPINION
Appellant. )
)
MANN, C.J. — After over 33 years of police service, Brian Wilson retired from his
position as chief of police for the City of Federal Way and sought to collect his Law
Enforcement Officers’ and Fire Fighters’ Retirement System Plan 2 (LEOFF 2)
retirement benefits. The Department of Retirement Systems (Department) denied
Wilson’s retirement benefits because, after leaving the police force, Wilson took a new
job as chief of staff for the mayor of Federal Way. Wilson sought judicial review of the
Department’s final order under the Administrative Procedure Act (APA), ch. 34.05 RCW.
The superior court reversed the Department’s final order concluding that the
Department was equitably estopped from denying Wilson’s retirement benefit. The
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Department appeals, arguing that the superior court erred because equitable estoppel
may be used only as a “shield” or defense, not as a “sword” or cause of action.
Because Wilson raised equitable estoppel as a defense to the Department’s denial of
his earned retirement benefits, we conclude that the trial court did not err, and affirm.
FACTS
LEOFF 2 is a public retirement plan for the State’s law enforcement officials and
fire fighters. Any LEOFF 2 member at least 53 years old and has at least “five service
credit years of service” is eligible to retire and to receive retirement benefits. RCW
41.26.430(1). Any member eligible to receive retirement benefits “shall be eligible” to
begin receiving their retirement benefit after applying with the Department. RCW
41.26.490(1). Retirement benefits “shall accrue from the first day of the calendar month
immediately following such member’s separation from service.” RCW 41.26.490(1). A
person is “separated from service” on the date that they have “terminated all
employment with an employer.” RCW 41.26.490(5).
Wilson began his law enforcement career with the Renton Police Department on
May 1, 1980. Wilson enrolled in LEOFF 2 at that time. In May 1996, Wilson joined the
newly formed police department for the City of Federal Way as deputy chief. Wilson
became chief of police for Federal Way in December 2006.
In November 2013 James Ferrell was elected mayor of Federal Way. Shortly
after, Wilson met with Ferrell to discuss pressing issues in the city. Ferrell discussed
hiring Wilson as his chief of staff. Wilson expressed interest in the position, but
indicated that he intended to retire from law enforcement and wanted to ensure that he
received his LEOFF 2 retirement benefits.
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Wilson worked on his transition with Jean Stanley, the city’s human resources
director, and Patricia Richardson, the city attorney. Wilson reiterated to Stanley that he
intended to retire from LEOFF 2, and “his expectation that all steps would be done
properly to accomplish that.” Stanley contacted the Department to ensure that Wilson
would receive his LEOFF 2 retirement benefits. As the Department’s presiding officer
explained:
On December 19, 2013, Ms. Stanley telephoned the Department for
information about retirement from LEOFF. She spoke with Employer
Support Specialist Seth Miller, whose job duties included responding to
inquiries from retirement system employers. Their five-to-fifteen-minute
conversation covered steps necessary for the City’s police chief to receive
his LEOFF retirement benefit, in the context of future employment with the
City in a general government, PERS-eligible position.[1] Ms. Stanley knew
that in PERS, a 30-day break in employment had to be observed or a
retiree could lose retirement benefits, and she asked if there was a similar
condition for retirement from LEOFF. Mr. Miller responded that LEOFF
did not have a similar requirement for a particular period of absence to
avoid a payment penalty, so taking a new position even the day after
termination from a LEOFF position would not affect the police chief’s
LEOFF retirement. He pointed out to Ms. Stanley that there could be
advantages for the LEOFF member if he became a member of PERS
without taking retirement from LEOFF (dual membership), but he
understood Ms. Stanley’s inquiry as a request for general information on
the subject of LEOFF retirement, rather than advice for a particular
individual’s circumstances.
Mr. Miller emphasized that clear termination of the LEOFF employment
would be key. He advised that the City should follow its normal
employment termination process for the particular type of employee. He
told Ms. Stanley that while different employer’s normal procedures for
terminating employees might vary, commonly an employ would return all
employer-owned items (such as vehicles and credit cards), and all items
that would allow access to the employers’ security and IT systems (such
as key cards and access codes), and the employer would be expected to
remove the individual as an active employee from the employer’s HR and
payroll systems. He mentioned that a retirement party might be expected.
1
PERS is the Public Employees Retirement System which applies generally to all public
employees not covered by LEOFF or other special retirement plans. Ch. 41.40 RCW.
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When Stanley spoke with Miller, the Department did not have a rule defining the
term “separation from service” in RCW 41.26.490(5). Miller’s advice to Stanley tracked
Department published materials at the time. For example, the Department publishes
overview booklets of general information for LEOFF members. Between 2006 and
2014, the booklets advised that benefits would be effective on the first day of the month
following the end of employment. For LEOFF 2 retirees, the booklets stated that a
retiree that returned to work in positions eligible for membership in other Department
administered systems, such as PERS, could participate in the new system, “in which
case their LEOFF benefit would be temporarily stopped or suspended, or not to
participate, in which case they would continue to receive their LEOFF retirement
benefit.”
The Department also published handbooks for members of the retirement
systems it administers. Much like the booklets, between June 2011 and April 2015, the
LEOFF 2 handbook explained the choice available to LEOFF retirees that returned to
work in a position covered by another retirement system such as PERS. As with the
booklets, the handbooks were silent about how long between separating from service
under LEOFF 2 and returning to work.
To be covered under return to work rules, you must first retire by
terminating all employment with your employer. This is called separating
from service. Separating from service demonstrates that you’ve
completed the necessary actions of leaving employment.
If you then decide to return to public service in Washington, your benefit
may be affected, depending on the position you return to.
If you return to work in a position that is eligible for membership in the
Washington State Public Employees’ Retirement System (PERS) . . . you
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can choose to continue to receive your benefits or you can choose to
become a member of that retirement system.
If you think you might be returning to work after retirement, please call us
to see if your benefit will be affected. You’ll also find helpful information in
the publication Thinking About Working After Retirement?
The referenced Thinking About Working After Retirement? is a specialized two-
page brochure for retirees. Beginning with the July 2011 version, the LEOFF 2
brochure explained what it meant to “separate from service” before returning to work.
As with the booklets and handbooks, the brochure did not identify how long a LEOFF 2
retiree needed to remain separated from service before returning to work.
When do I become a retiree?
It’s important to remember that you must retire before you can be covered
under the return to work law. To retire you must:
• Meet the age and service requirements;
• Terminate all employment with your employer by completely
separating from service; and
• File an application for retirement with DRS.
Separating from service means that you’ve completed the necessary
actions of leaving employment. For example, you’ve returned any
employer issued items, your computer access has been shut off and your
employment has been ended in the payroll system.
If you are eligible to retire when you separate from service, your effective
retirement date is the first day of the following month.
In summary, as of January 2014, no Department publication stated that a person
following the usual procedures in separating from service and terminating all
employment in his present LEOFF position would be prohibited from receiving his
retirement benefits if he returned to work with that same employer in a different position
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after retirement. And no Department publications stated that employees could not have
a reasonable expectation of receiving their LEOFF benefits if they were re-employed
with the same employer in a different position. Instead, Department publications
confirmed that a person could retire from LEOFF, accept new work as a public
employee, and continue to receive their LEOFF retirement benefits so long as they did
not participate in another State retirement program such as PERS.
On January 6, 2014, Wilson completed his application for retirement using the
Department application form for LEOFF 2 service retirement. Wilson listed the effective
date as January 15, 2014. Also on January 6, 2014, Wilson signed another Department
form titled “LEOFF Plan 2 Retiree Re-employment.” The form listed two options for re-
employment retirement benefits.
As a LEOFF Plan 2 retiree eligible for membership in another retirement
plan administered by DRS, you have two options:
1. Become a member of the new retirement plan and temporarily stop
receiving your monthly LEOFF Plan 2 retirement benefit.
2. Not become a member of the new retirement plan and continue to
receive your monthly LEOFF Plan 2 retirement benefit.
You must choose between one of these two options when you begin
working in a position covered by the [PERS].
Wilson checked the second box, “I choose to Not become a member of the DRS-
administered retirement plan for which I am eligible.” Wilson turned in all City
equipment, he was deactivated from all security systems, he was removed from the
City’s payroll system, and he was otherwise removed from the City’s computer systems.
He completed a checklist of termination items with Stanley.
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Wilson was not employed by the City from January 15 to January 20, 2014. On
January 21, 2014, Wilson began as chief of staff for the mayor.
Wilson expected to begin receiving his LEOFF 2 benefits in February 2014.
Instead, on February 21, 2014, a plan administrator with the Department wrote Wilson
informing him that his application for retirement benefits was denied because he had
“never completely separated or severed all employment with the City of Federal Way as
required.” Wilson “was shocked by this notification, believing that he and the City had
taken all the steps necessary to comply with requirements for him to receive his LEOFF
retirement.”
In March 2014, after the Department denied Wilson’s LEOFF 2 benefits, the
Department revised the Thinking About Working After Retirement? brochure by adding
the following language:
You have not terminated all employment with your employer if you accept
a verbal or written offer of employment with the same employer before you
separate from your LEOFF position. You must complete the necessary
actions of leaving employment before you accept a new job with the same
employer, even if your new job is within a different department or division
of that employer, or the new job is not LEOFF eligible.[2]
On June 19, 2014, Wilson petitioned the Department for review, challenging the
denial of his benefits because it violated basic contract and agency law. The
2
Two years later, in May 2016, the Department amended WAC 415-02-115 to add a new section:
(3) If I terminate from my position with an understanding that I will return to service with
the same employer in an ineligible position or as an independent contractor, will I have
separated from service? No. If, at the time of your termination, there was an
understanding between you and your employer that you would return to work for that
employer in any capacity, including in an ineligible position or as an independent
contractor, you have not separated from service and not eligible to retire.
WAC 415-02-115.
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Department affirmed its decision to deny Wilson’s pension, determining that Wilson did
not fully separate from the City based on his expectation of future employment.
On February 9, 2015, Wilson appealed the petition decision to the Department’s
presiding officer. Both parties moved for summary judgment. On March 8, 2017, the
presiding officer denied both motions, but agreed with the Department that a valid
“separation of service” under RCW 41.26.490 requires that the member have no
reasonable expectation of continuing employment with the employer at the time of
separation. After a hearing to determine whether the facts of Wilson’s separation met
the separation of service standard, and whether equitable estoppel applies to preclude
the Department from making this argument, the presiding officer issued a final order on
July 20, 2018. The presiding officer affirmed the Department’s decision to deny Wilson
his LEOFF 2 retirement benefits from February 2014 to November 2016. 3
Wilson petitioned for judicial review in King County Superior Court. Wilson
argued that: (1) “separation from service” under RCW 42.26.490 does not require “no
reasonable expectation” of continuing employment with the employer; (2), alternatively,
if the “no reasonable expectation” standard is correct, the Department was required to
undergo APA rulemaking before applying that standard; and (3) the Department was
equitably estopped from denying Wilson LEOFF 2 retirement benefits from February
2014 to November 2016.
The superior court reversed the Department’s final order. The trial court
determined that it was reasonable for the Department to interpret of “separation of
3
Wilson worked as chief of staff to the mayor until he retired in November 2016, which was the
first month that the Department began paying his LEOFF 2 retirement benefits.
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service” in RCW 41.26.490(5) to mean the employee has no reasonable expectation of
returning to service. The court also concluded that the Department was not required to
conduct APA rule making before applying its interpretation of “separation of service” to
Wilson. The court concluded, however, that the Department’s application of its new
interpretation was inequitably applied to Wilson.
The superior court explained:
Nothing in any DRS publication in existence in January 2014 supports the
position that a person following the usual procedures in separating from
service and terminating all employment in his present LEOFF position
would be prohibited from receiving his retirement benefits if he returned to
work with that same employer in a different position after retirement.
Further, there was nothing in any Department publication in existence in
January 2014 to support the position that to fully separate from service an
otherwise eligible employee would have to do more than complete the
usual steps of terminating employment such as returning any employer-
issued items, shutting off computer access, and having employment
ended through the payroll system. No publication informed an employee
that he could not have a reasonable expectation of re-employment with
the same Department-employer in a different position at the time of
separation.
The court also found that as of January 15, 2014, Wilson had completed all of the
necessary actions of leaving employment referred to by the plan administrator’s
February letter and available from the Department’s website. The court concluded that:
[a]lthough this interpretation is within the Department’s authority and is
reasonable, it is inequitably applied in Wilson’s case because the
Department failed to provide any notice to Wilson or any other employee
of the Department’s new interpretation of the law. The Department had
many simple methods available to it to provide this information: post it
onto its website, provide appropriate training to its advisors and/or include
the information in its retirement seminars. So, although the court finds it is
a reasonable interpretation and within its authority, it is troubled by the
lack of any notice to Brian Wilson before the Department applied this new
interpretation of the law to his case.
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The superior court reversed the final order’s denial of Wilson’s equitable estoppel claim
to prevent the Department from denying Wilson the LEOFF 2 benefits, finding that the
Department wrongfully denied Wilson his benefits from February 1, 2014, to November
30, 2016. The court determined that the Department owed Wilson $266,934 in benefits.
The court also awarded Wilson $12,000 in attorney fees. The Department appeals.
ANALYSIS
This case required review of an administrative agency’s decision under the APA.
In reviewing the agency’s decision, we sit in the same position as the trial court and
apply the APA’s standards directly to the agency’s administrative record. Sloma v.
Dep’t of Ret. Sys., 12 Wash. App. 2d 602, 613, 459 P.3d 396 (2020). The party
challenging the agency’s final order has the burden of proving that the agency’s final
action was invalid. RCW 34.05.570(1)(a).
Can Wilson Invoke Equitable Estoppel?
Central to the Department’s appeal is its argument that the superior court erred in
concluding that the Department was equitably estopped from denying Wilson’s claim for
his LEOFF 2 benefits after retiring from his position in law enforcement. This is so, the
Department contends, because equitable estoppel cannot be used as a sword, or cause
of action. 4
The doctrine of equitable estoppel “prevents a party from taking a position
inconsistent with a previous one where inequitable consequences would result to a
4
The Department also argues that its interpretation of “separation from service” in RCW
41.26.490, to include the requirement that an employee have no reasonable expectation of returning to
work for the same employer is reasonable and that it did not have to undergo rulemaking under the APA
prior to denying Wilson’s LEOFF 2 benefits. The superior court agreed with the Department on both of
these claims and Wilson does not disagree.
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party who has justifiably and in good faith relied.” Silverstreak, Inc. v. Washington State
Dep’t of Labor & Indus., 159 Wash. 2d 868, 887, 154 P.3d 891 (2007). “Equitable estoppel
is available only as a defense to claims against enforcement of a contract: it is a ‘shield’
while promissory estoppel can be used as a ‘sword’ in a cause of action for damages.”
McCormick v. Lake Washington School Dist., 99 Wash. App. 107, 117, 992 P.2d 511
(1999) (citing Klinke v. Famous Recipe Fried Chicken, Inc., 94 Wash. 2d 255, 259, 616
P.2d 644 (1980)); Byrd v. Pierce County, 5 Wash. App. 2d 249, 257, 425 P.3d 948 (2018).
As recognized in the “notes on use” to the pattern jury instruction for the elements of
equitable estoppel, “estoppel may be raised by a party seeking enforcement of a
contract, i.e., as a defense to a defense.” 6A Washington Practice: Washington Pattern
Jury Instructions: Civil 302.05 (7th ed. 2019) (WPI).
In Silverstreak, for example, a group of truck drivers sought to recover “prevailing
wages,” rather than the material wages they were paid by the suppliers. Silverstreak,
159 Wash. 2d at 875. The Department of Labor and Industries (L&I) determined the
suppliers owed an additional $500,000 to the truckers after concluding that the suppliers
failed to pay the truckers a prevailing wage. Silverstreak, 159 Wash. 2d at 896. The
suppliers challenged the decision administratively, arguing that L&I misinterpreted
prevailing wage law, and alternatively with a defense of equitable estoppel.
Silverstreak, 159 Wash. 2d at 886. The court held that the interpretation was valid, but
applied equitable estoppel in this case. Silverstreak, 159 Wash. 2d at 887. The court
allowed the suppliers to assert equitable estoppel as a defense against the truck drivers’
claim for more money, using the doctrine as a shield against the drivers’ claim.
Silverstreak, 159 Wash. 2d at 981.
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Division Two of this court recently addressed the use of equitable estoppel in
Sloma. In Sloma, after more than 30 years of service in PERS, the retiree, Donald
Sloma, made an irrevocable election to have his retirement benefit based on his salary
at 30 years and to have all subsequent contributions refunded. Sloma retired in 2004
and began receiving his retirement benefit based on his 30-year salary. The
Department refunded to him all PERS contributions his election. Sloma, 12 Wash. App.
2d at 608-10. In 2012 Sloma accepted a new PERS eligible position at a higher salary.
Based on a phone call with Department staff, Sloma believed he would be able to re-
enter PERS and re-retire based on the new rate. Sloma did not inform the Department
staff that he had made the irrevocable election at 30 years. When Sloma tried to retire
again in 2015, he was informed that because he had made the irrevocable election in
2004 to cap his benefit at 30 years and have subsequent PERS contributions refunded,
his benefit would remain at the 2004 level. Sloma, 12 Wash. App. 2d at 611-12.
Sloma appealed, arguing that “equitable and promissory estoppel apply to
compel DRS to calculate his retirement benefits using his higher Thurston County
salary.” Sloma, 12 Wash. App. 2d at 607. Division Two of this court concluded that the
retiree could not rely on equitable estoppel to support his cause of action, holding that
Sloma misplaces his reliance on the equitable estoppel doctrine by
attempting to use it as a sword to compel DRS to recalculate his AFC
based on the compensation he earned after he made his irrevocable
election under RCW 41.40.191. Because equitable estoppel cannot be
the basis for a cause of action, Sloma cannot invoke it here.
Sloma, 12 Wash. App. 2d at 621.
Here, it is undisputed that Wilson is due his pension. He worked the requisite
number of years and reached the requisite age. Wilson has, in essence, a contractual
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right to his LEOFF 2 benefits. By denying him of his LEOFF 2 benefits, the Department
is denying Wilson his right to his earned pension. Thus, rather than raise equitable
estoppel as a sword, Wilson properly asserted equitable estoppel as a defense to the
Department’s defense of not paying him his pension because of Wilson’s alleged
breach. To appeal the Department’s denial of his pension, Wilson’s only remedy was to
appeal the decision. RCW 34.05.570(1)(a). Wilson followed the only path available to
him to seek relief, and just because he had to file an appeal does not mean that he was
using equitable estoppel as a sword.
This case is also readily distinguishable from Sloma. In Sloma, the retiree was
seeking to use equitable estoppel to affirmatively change his retirement benefits from
the amount he previously, and irrevocably elected, to a new level based on a
conversation with Department staff. 12 Wash. App. 2d at 607. Wilson, in contrast, was
only asking for what he had earned. Unlike Sloma, Wilson is not asking for something
different from what he earned during his service in law enforcement. He is simply
asking for the pension that he undisputedly earned.
For these reasons, Wilson’s defense of equitable estoppel is properly asserted
against the Department’s attempt to deny him his pension based on a different
interpretation of separation of service.
Did Wilson Demonstrate Equitable Estoppel?
The Department argues that Wilson did not demonstrate the elements of
equitable estoppel by clear, cogent, and convincing evidence. We disagree.
A party asserting equitable estoppel against the government must establish five
elements by clear, cogent, and convincing evidence:
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(1) a statement, admission, or act by the party to be estopped, which is
inconsistent with its later claims, (2) the asserting party acted in reliance
upon the statement or action, (3) injury would result to the asserting party
if the other party were allowed to repudiate its prior statement or action,
(4) estoppel is “necessary to prevent a manifest injustice,” and (5)
estoppel will not impair governmental functions.
Silverstreak, 159 Wash. 2d at 887.
Wilson demonstrated the Department made inconsistent statements. The
Department’s pre-January 2014 statements, including employee pamphlets, handbooks,
and brochures, were consistent that earned LEOFF 2 benefits would be paid the first of
the month after the employee separated from service. The Department’s publications
uniformly stated that separation from service meant completing necessary actions such
as returning issued items, shutting off computer access and ending employment in the
payroll system. The Department’s publications, including its official form for returning to
work, also uniformly explained that an employee could return to work in the public
sector and maintain their LEOFF 2 benefits by opting out of any other retirement
program such as PERS. Finally, the Department’s publications made clear that if there
were any questions, the employee should contact the Department—which is precisely
what the City did. The Department’s spokesperson, Miller, offered the same information
as the Department’s existing publications.
As of January 2014, no Department publication stated that a person following the
usual procedures in separating from service and terminating all employment in his
present LEOFF position would be prohibited from receiving his retirement benefits if he
returned to work with that same employer in a different position after retirement. No
Department publication stated that a LEOFF retiree could not have a reasonable
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expectation of receiving their LEOFF benefits if they were re-employed with the same
employer in a different position. And no Department publication stated that a retiree
would lose their LEOFF benefits if they retired with a reasonable expectation of
returning to work with the same employer in a different function.
Wilson also demonstrated that he relied on the Department’s prior statements.
Wilson resigned his law enforcement commission legally precluding him from acting as
a police officer again. Then, consistent with the City’s discussion with Miller, Wilson
followed all necessary steps to terminate his employment as chief of police and filled out
the Department’s form for returning to work, rejecting any benefits under the PERS
system.
There is no reasonable dispute that Wilson demonstrated injury. The
Department denied Wilson his LEOFF 2 benefits between February 2014 and his
ultimate retirement from the chief of staff position on November 30, 2016. 34 months of
$7,851 per month deprived Wilson of $266,934 in benefits. While Wilson did receive his
salary as chief of staff, his expectation based on the Department’s prior statements,
including the return to work form, was that he would receive his LEOFF 2 benefits and
salary from the new position so long as he did not accept future PERS retirement
benefits from the new position.
It would also be manifestly unjust for the Department to avoid paying Wilson’s
LEOFF 2 benefits after issuing multiple publications confirming that: (1) an employee
separated by service by taking normal steps for termination and (2) that an employee
can retire from LEOFF, take new State employment, and continue to receive their
LEOFF 2 benefits so long as they rejected additional retirement benefits under the new
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employment. While the Department’s new interpretation of the separated from service
requirement may be reasonable, its retroactive application to Wilson is manifestly
unjust.
And finally, the State does not argue that estoppel will impair governmental
functions.
We agree with the trial court and conclude that the record shows that Wilson
demonstrated the elements of equitable estoppel by clear, cogent, and convincing
evidence.
Attorney Fees
The Department argues that the trial court erred in awarding Wilson attorney fees
because its actions were substantially justified. We disagree.
Under the equal access to justice act (EAJA), “a court shall award a qualified
party that prevails in a judicial review of an agency action fees and other expenses,
including reasonable attorneys’ fees, unless the court finds that the agency action was
substantially justified or that circumstances make an award unjust.” RCW 4.84.350(1).
“‘Substantially justified means justified to a degree that would satisfy a reasonable
person.’” Silverstreak, 159 Wash. 2d at 904 (quoting Moen v. Spokane City Police Dep’t,
110 Wash. App. 714, 717, 42 P.3d 456 (2002)). “An action is substantially justified if it had
a reasonable basis in law and in fact.” Raven v. Dep’t of Social and Health Servs., 177
Wash. 2d 804, 832, 306 P.3d 920 (2013). We review a trial court’s award of attorney fees
under the EAJA for abuse of discretion. Raven, 177 Wash. 2d at 832. “A trial court
abuses its discretion when it makes a decision that is manifestly unreasonable, based
on untenable grounds, or based on untenable reasons.” Raven, 177 Wash. 2d at 832.
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Here, while the trial court found that the Department’s new interpretation of
“separated from service” was reasonable, it concluded that the Department’s application
of its new interpretation to Wilson was not substantially justified:
The court does not find the Department’s actions were substantially
justified based on the Department’s historical interpretation and
application of RCW 41.26.490(5) and the lack of notice of any change
before attempting to apply a new interpretation to the petitioner. Given the
department’s website, publications, training, and oral representations
made to the HR representative confirm the department’s historical
interpretation of “separation of service”, the department was not
substantially justified to apply a new interpretation to Mr. Wilson.
Based on the record before us, we cannot conclude that the trial court abused its
discretion in awarding Wilson attorney fees and costs.
Wilson seeks attorney fees on appeal under RAP 18.1 and RCW 4.84.350.
Because Wilson prevails on appeal, we award attorney fees on appeal subject to
compliance with RAP 18.1 and the limitations in RCW 4.84.340(3).
Affirmed.
WE CONCUR:
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