W. Va. Consolidated Public Retirement Board v. Keith A. Wood

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2014 Term FILED
March 28, 2014
___________
released at 3:00 p.m.
RORY L. PERRY II, CLERK
No. 13-0403 SUPREME COURT OF APPEALS
OF WEST VIRGINIA
___________
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
_________________________________________________
Appeal from the Circuit Court of Kanawha County
The Honorable Paul Zakaib, Jr., Judge
Civil Action No. 11-AA-143
AFFIRMED
____________________________________________________
Submitted: February 12, 2014
Filed: March 28, 2014
Lenna R. Chambers, Esq. Lonnie C. Simmons, Esq.
Bowles Rice LLP Elizabeth G. Kavitz, Esq.
Charleston, West Virginia DiTrapano, Barrett, DePiero
Attorney for Petitioner McGinley & Simmons, PLLC
Charleston, West Virginia
Attorney for Respondents
JUSTICE WORKMAN delivered the Opinion of the Court.
2 9
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
i
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. Holt, 173 W.Va. 501, 318
S.E.2d 446 (1984).
ii
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.
iii
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
1
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
1
Respondent Wood testified he was approached by former Administration Secretary
Chuck Polan and former Governor Gaston Caperton regarding the position of Aviation
Services Manager within the Aviation Division of the State of West Virginia. Respondent
Wood further testified that upon his expression of reluctance to leave the military, Secretary
Polan specifically told him that he would receive five years of military service credit.
2
Respondent Wood is the only veteran in this consolidated appeal who presented an
estoppel argument in addition to his argument that his actual service record warranted the full
five years of military service credit.
2
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
3
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.
4
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.” See W.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 dates5 for
each of the named “period[s] of armed conflict,” and provides that credit may be awarded
3
Compulsory service in the military, otherwise known as “the draft,” ended on July
1, 1973.
4
Initially enacted as West Virginia Code § 5-10-15b, this provision was eventually
merged into West Virginia Code § 5-10-15. For purposes of the issues raised in this appeal,
the guiding statute remains in effect without substantive change. This Court will
consequently refer to West Virginia Code § 5-10-15 in this opinion.
5
The Spanish-American War is identified as 1898 to 1903; Mexican border period
from 1916 to 1917; World War I from 1917 to 1918; World War II from 1941 to 1946;
Korean conflict from 1950 to 1955; Vietnam era from 1961 to 1975; and Persian Gulf War
from 1990 to 1991. See W. Va. Code § 5-10-15(b)(2)-(8).
5
for service beyond the end date of an officially recognized conflict if the PERS member was
stationed in a hostile territory. See id. § 5-10-15(b)(2)-(8).
Upon the inclusion of the “period of armed conflict” language in 2000, the
Board began awarding military service credit for service during the specific “period[s] of
armed conflict” listed in the statute. In October 2001, the Board determined that military
service credit under this statutory provision would also be awarded for all active duty service
occurring after September 11, 2001.
C. Decisions of the Board and Circuit Court
The Board denied the respondents’ requests for military service credit for
service occurring during periods of armed conflict other than those listed in the statute and
post-September 11, 2001, service, and each respondent appealed the Board’s orders to the
circuit court. Those appeals were consolidated into a single civil action. On March 20, 2013,
the circuit court ruled in favor of the respondents and granted each of their military service
credit requests in full. All respondents, except Respondent Walkup, received the full five
years of military service credit made available through the statute, and Respondent Walkup
received four years of military service credit since he served only four years in the military.
The Board appeals that decision to this Court.
6
II. Standard of Review
In syllabus point one of Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459
S.E.2d 415 (1995), this Court held: “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.” Accord, Syl. Pt. 1, Appalachian Power Co. v. State Tax Dep’t of W. Va.,
195 W.Va. 573, 466 S.E.2d 424 (1995) (“Interpreting a statute or an administrative rule or
regulation presents a purely legal question subject to de novo review.”).
Because resolution of this matter depends upon a determination of the meaning
and proper application of a statutory pronouncement, this Court reviews the circuit court’s
decision de novo.
III. Discussion
A. Periods of Armed Conflict
In its primary and dispositive assignment of error, the Board contends that the
circuit court erred in concluding that the respondents are statutorily entitled to the military
service credit designated in the circuit court order. West Virginia Code § 5-10-15, as
outlined above, provides that military service credit of up to five years shall be granted to a
member of PERS who served in active duty in the armed forces of the United States during
a “period of armed conflict” and was honorably discharged. The phrase “period of armed
7
conflict” as defined in West Virginia Code § 5-10-15(b)(1), encompasses certain identified
military engagements “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.” W.Va. Code §
5-10-15(b)(1) (emphasis supplied).
The respondents argued in circuit court and contend on appeal that the
Legislature clearly did not intend military service credit to be limited to the specific armed
conflicts identified in the statute. The respondents emphasize that the express language of
the statute does not limit the military actions to those involving an actual declaration of war
by the President or Congress. The respondents also direct this Court’s attention to the
Legislature’s inclusion of a provision requiring liberal construction of the statute, as follows:
“The provisions of this article shall be liberally construed so as to provide a general
retirement system for the employees of the state herein made eligible for such retirement. .
. .” W.Va. Code § 5-10-3a(a) (2013). The respondents maintain that liberal construction
requires the conclusion that unless the statute clearly excludes a particular military campaign
from being considered, all periods of armed conflict must be included in the calculation of
an employee’s military service credit.
8
In identifying the specific periods of armed conflict in which the United States
has engaged, the respondents presented evidence in the administrative hearings in the form
of Veterans of Foreign Wars (hereinafter “VFW”) listings in the VFW Guide for Post Service
Officers Veterans Benefits. Those listings include the following military engagements:
El Salvador January 1, 1981, through February 1, 1992
Lebanon June 1, 1983, through December 1, 1987
Grenada October 23, 1983, through November 21, 1983
Persian Gulf July 24, 1987, through August 1, 1990
Panama December 20, 1989, through January 31, 1990
Somalia December 5, 1992, through March 31, 1995
The circuit court agreed with the respondents’ contentions and found that
liberal construction of West Virginia Code § 5-10-15 compelled the conclusion that the
Board must provide military service credit for the periods of armed conflict specifically
identified in the statute, the post-September 11, 2001, period, and the other periods of armed
conflict, as indicated in the VFW manual. The circuit court reasoned: “The Legislature
explicitly never intended the military service credit awarded under the statute to be limited
to the specific armed conflicts listed.”6 The circuit court found that the military actions listed
in the VFW manual were similar in nature to and consistent with the periods of armed
6
The circuit court observed the absence of clarity in the statute, noting that “[t]here
is nothing in the statute, for example, to suggest either that a period of armed conflict
necessarily must involve deaths in the field of battle or the firing of a single shot.” The
circuit court further stated that “[t]he statute also is silent on what evidence is required for
a public employee to prove that he or she had actively served in the military during a period
of armed conflict.”
9
conflict specifically identified in the statute.7 It further stated that “[f]or reasons not made
clear either in its regulations or prior rulings, [the Board] has chosen not to provide military
service credit for all periods of armed conflict.” (Emphasis in original). Moreover, the
circuit court recognized that “as indicated by this case, [the Board] has chosen to provide
military service credit for some military campaigns, but not for others. The rationale for
making these distinctions is not apparent in [the Board’s] regulations or web site and was not
explained during the hearing.”
On appeal, the Board contends that it has properly interpreted the statute to
require military service credit for only those military engagements listed in the statute and
post-September 11, 2001, service.8 Based upon that reasoning, the Board denies military
service credit requests premised upon military service performed during other time periods.
7
The Board cites the concept of ejusdem generis for the proposition that only military
actions of similar nature should be included in the calculation of military service credits.
That is a “canon of construction that when a general word or phrase follows a list of specific
persons or things, the general word or phrase will be interpreted to include only persons or
things of the same type as those listed.” Black’s Law Dictionary 535 (7th ed. 1999).
Evidence presented during the administrative hearings included the fact that potential
utilization of other military actions in the military service calculation had been considered
by the Board or a committee. Yet, as the circuit court observed, “at no point has [the Board]
ever articulated in writing any explanation as to why these periods of armed conflict are not
being recognized by [the Board] for purposes of calculating military service credits.”
8
All parties agree that post-September 11, 2001, military service should be included
in the calculation of military service credit, and the inclusion of that time period is not at
issue in this case.
10
The Board argues on appeal that it should be required to award military service credit only
for service during those periods of armed conflict, occurring after the enactment of this
statute, which are similar in scope and nature to the periods listed in the statute. The Board
contends that its approach is consistent with the intent of the Legislature and emphasizes that
the Legislature did not specifically name any military engagements between 1975 and 1990,
despite the fact that it would have been aware of certain intervening military engagements
when it enacted this legislation in 2000.
With regard to its rationale, the Board contends that the circuit court should
have accorded more weight to the Board’s own interpretation of the requirements of the
statutory provision at issue. See SyI. Pt. 4, Hawkins v. W. Va. Dep’t of Pub. Safety, 223
W.Va. 253, 254, 672 S.E.2d 389, 390 (2008) (“‘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).”). Similarly, the Board emphasized that West Virginia
Code § 5-10-15(b)(6) requires doubt to be resolved in favor of the Board’s interpretation:
“In any case of doubt as to the period of service to be credited a member under the provisions
of this section, the board of trustees have final power to determine the period.”
11
While this Court agrees with the proposition that the Board’s interpretation is
entitled to deference, it is imperative that a reviewing court also consider the possibility, as
the circuit court did in the present case, that the Board’s interpretation is erroneous. As we
noted in syllabus point seven of Lincoln County Board of Education v. Adkins, 188 W.Va.
430, 424 S.E.2d 775 (1992): “‘“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).” Additionally, as the circuit court in this case recognized, while
West Virginia Code § 5-10-15(b)(6) does provide the Board with authority to determine
military service credit in the case of doubt, the Board “necessarily would have to make such
determination consistent with the broad definition of ‘period of armed conflict’ mandated
by the Legislature and with the liberal construction of this statute required by W.Va. Code
§ 5-10-3a.” (Emphasis in original).9
9
“[D]eference is not abdication, and it requires us to accept only those agency
interpretations that are reasonable in light of the principles of construction courts normally
employ.” EEOC v. Arabian American Oil Co., 499 U.S. 244, 260 (1991) (Scalia, J.,
concurring). Regarding deference to be accorded to agency interpretations, courts have also
been astute in observing that deference cannot be provided unless there is a tangible agency
construction to which a court may defer. As the United States Supreme Court explained in
United States v. Mead Corp., 533 U.S. 218 (2001), deference in the federal realm is only
accorded where “Congress delegated authority to the agency generally to make rules carrying
the force of law, and . . . the agency interpretation claiming deference was promulgated in
the exercise of that authority.” Id. at 218, 226-27. “Interpretations such as those in opinion
letters—like interpretations contained in policy statements, agency manuals, and enforcement
12
In this Court’s determination of the appropriate resolution of this matter, we
recognize that the crucial element of controversy is the matter of statutory construction. As
summarized above, the Board contends that it properly interpreted and applied the statute.
The respondents maintain that the Board’s interpretation is unnecessarily restrictive and that
the circuit court’s rationale and resulting conclusions were correct. Consequently, the issue
presented in this appeal requires this Court to ascertain the meaning of the subject statutory
language and its proper application to the respondents’ requests for military service credit.
Although this Court has consistently observed that clear and unambiguous statutes shall not
be subject to interpretation,10 we have also definitively stated that “[a] statute that is
ambiguous must be construed before it can be applied.” Syl. Pt. 1, Farley v. Buckalew, 186
guidelines, all of which lack the force of law—do not warrant Chevron-style deference.”
Chistensen v. Harris Cnty., 529 U.S. 576, 587 (2000) (referencing Chevron, U.S.A., Inc. v.
Natural Res. Def. Council, Inc., 467 U.S. 837 (1984)). When the agency’s position has been
articulated as a litigation position, as in the present case, this Court has declined to accord
deference to the agency’s interpretation. See West Virginia Health Care Cost Review
Authority v. Boone Memorial Hosp., 196 W.Va. 326, 334, 472 S.E.2d 411, 419 (1996)
(observing that “courts customarily withhold Chevron deference from agencies litigating
positions . . . . We see no reason to take a different tack in this instance.”); In re Snuffer, 193
W.Va. 412, 417, 456 S.E.2d 493, 498 (1995) (Cleckley, J., concurring) (“The policy
underlying our grant of special deference to agency decisions and similar official agency
pronouncements does not extend to every agency action. For example, it would not extend
to ad hoc representations on behalf of an agency, such as litigation arguments.”).
10
See Syl. Pt. 3, Francis O. Day Co., Inc. v. Director, Div. of Envtl. Protection, 191
W.Va. 134, 443 S.E.2d 602 (1994) (“Where the language of a statute is clear and without
ambiguity the plain meaning is to be accepted without resorting to the rules of
interpretation.”).
13
W.Va. 693, 414 S.E.2d 454 (1992). “Ambiguity is a term connoting doubtfulness,
doubleness of meaning of indistinctness or uncertainty of an expression used in a written
instrument.” Crockett v. Andrews, 153 W.Va. 714, 718-19, 172 S.E.2d 384, 387 (1970).
In defining “period of armed conflict” in West Virginia Code § 5-10-15 (b)(1),
the statute first identifies certain specific periods to be included. Immediately thereafter,
however, the statute also provides that other periods to be utilized in calculation of military
service credit include “any other periods 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.
This Court’s reading of the statute compels the conclusion that it is ambiguous
with regard to the meaning of the phrase “periods of armed conflict.” The inclusion of such
broad and unspecific language renders this statute capable of varying interpretations, as
illustrated, in part, by the vehement disagreement among the parties to this action. A statute
which is susceptible of two or more meanings is characterized as ambiguous. See Vanderbilt
Mortg. & Fin., Inc. v. Cole, 230 W.Va. 505, 510, 740 S.E.2d 562, 567 (2013) (“‘A statute
is open to construction only where the language used requires interpretation because of
ambiguity which renders it susceptible of two or more constructions or of such doubtful or
obscure meaning that reasonable minds might be uncertain or disagree as to its meaning.’”)
14
(quoting Hereford v. Meek, 132 W. Va. 373, 386, 52 S.E.2d 740, 747 (1949)); Sizemore v.
State Farm Gen. Ins. Co., 202 W.Va. 591, 596, 505 S.E.2d 654, 659 (1998) (allowing
judicial construction where “language used requires interpretation because of ambiguity
which renders it susceptible of two or more constructions” and the provision is “of such
doubtful or obscure meaning that reasonable minds might be uncertain or disagree as to its
meaning.”).
Having found the subject statutory language ambiguous, this Court is required
to construe the statute and determine its proper application to the facts of this case. In
endeavoring to construe an ambiguous statute, this Court is cognizant that “[t]he 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);
see also Syl. Pt. 1, Ohio Cnty. Comm'n v. Manchin, 171 W.Va. 552, 301 S.E.2d 183 (1983)
(“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.”).
The statute at issue herein distinctly directs that military service credit is
required to be granted to members of PERS who served in the United States military during
particular military engagements. To determine the intent of the Legislature with respect to
precisely which military engagements should be included in the calculation of military
15
service credit, the circuit court correctly examined the express language of the statute, the
statutory requirement of liberal construction, and other documents chronicling periods of
armed conflict in which the United States military has engaged.
Some evidence of the intent of the Legislature may also be gleaned from the
introductory passage of West Virginia Code § 5-10-15(a)(1), as follows:
The Legislature recognizes the men and women of this
state who have served in the Armed Forces of the United States
during times of war, conflict and danger. It is the intent of this
section to confer military service credit upon persons who are
eligible at any time for public employees retirement benefits for
any time served in active duty in the Armed Forces of the United
States when the duty was during any period of compulsory
military service or during a period of armed conflict, as defined
in this section.
Moreover, the express language of the statutory definition of “period of armed conflict”
indicates a legislative intent to identify certain military conflicts that must be included in the
military service credit calculation and to include other unidentified periods of armed conflict
in the calculation of military service credit. This language employed by the Legislature is
extremely broad and unrestrictive, necessitating an inquiry into what other periods of armed
conflict should be included in the calculation. An application of the statute including only
the named military conflicts would not confer any meaning to the remainder of the paragraph.
In endeavoring to interpret a statute in a manner which gives meaning to each part, this Court
stated as follows in syllabus point three of State ex rel. Fetters v. Holt, 173 W.Va. 501, 318
16
S.E.2d 446 (1984): “‘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).”
The Board’s contention, on appeal, that a calculation of military service
benefits should include only those military engagements occurring after the statute’s
enactment is suspect. If the Legislature had so intended, it could have employed language
indicating that only subsequent periods of armed conflict could be added to the existing list
or it could have stated that only periods of armed conflict occurring after a certain date could
be added to the existing list. “[C]ourts must presume that a legislature says in a statute what
it means and means in a statute what it says there.” Mangus v. Ashley, 199 W.Va. 651, 658,
487 S.E.2d 309, 316 (1997) (citations omitted). Absent obvious indication of intent to add
only subsequent military engagements, the Board’s argument on appeal is mere speculation,
utterly unsupported by the statutory language. This Court finds the Board’s interpretation
to be in clearly erroneous and severely limited in scope.
Accordingly, we hold that 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
17
the United States has engaged, as the credible evidence presented in each individual case may
dictate. The liberal construction to which this statute is entitled compels our conclusion that
any doubt about a particular military engagement’s inclusion within the calculation of
military service credit must be resolved in favor of such inclusion. Applying this holding to
the facts sub judice, we conclude that the circuit court properly interpreted and applied West
Virginia Code § 5-10-15 to include periods of armed conflict not specifically identified in
the statute. The circuit court’s evaluation of the respondents’ military service properly
resulted in the conclusion that Respondents Wood, Cheatham, Lattimore, and Fernatt are
entitled to five years of military service credit and Respondent Walkup is entitled to four
years of military service credit. We affirm the circuit court’s method of calculating the
military service credit to which each respondent is entitled.11
11
In addition to the primary assignment of error addressed and resolved above, the
Board also asserts that the circuit court erred in concluding that the Fourteenth Amendment
to the West Virginia Constitution is applicable to the determination of additional periods of
time as “periods of armed conflict.” The Fourteenth Amendment to the West Virginia
Constitution is the “Veterans Bonus Amendment” and provides a mechanism through which
a cash bonus may be paid to veterans of the armed forces who served during conflicts in the
Persian Gulf, Lebanon, Grenada, and Panama. This Court’s review of the circuit court order
reveals that it utilized the Fourteenth Amendment as an example of an additional source of
information in the determination of what military engagements should be included in the
calculation of military service credit. The circuit court examined both the list of military
engagements included in the VFW manual and the list included in the Fourteenth
Amendment to separately calculate entitlement to military service credit. The VFW manual
provided the most comprehensive list of military engagements and thus resulted in the most
credit for the respondents. Consequently, because this Court has affirmed the circuit court’s
reliance upon the VFW manual and the resulting military service credit to the respondents,
we find the circuit court’s reference to the Fourteenth Amendment unnecessary to its ultimate
conclusion and therefore irrelevant in this appeal.
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B. Respondent Wood’s Alternate Theory of Recovery
The Board also contends that the circuit court erred in addressing Respondent
Wood’s alternate theory of recovery, holding that Respondent Wood would be entitled to
military service credit based on the principles of equitable estoppel. The Board contends that
Respondent Wood failed to demonstrate detrimental reliance on the alleged promises of
military credit and emphasizes that the original promise of credit was based upon a mistaken
impression that Respondent Wood had begun his military service during the draft years.
Although Respondent Wood presented evidence that he was persuaded to
accept a position with the State due to the promise of five years of military service credit and
was provided with statements showing his entitlement to military credit, this Court affirms
the circuit court’s decision to grant Respondent Wood’s full five years of military service
credit based upon his actual service record. Review of his alternate argument, the merits of
which have been contested by the Board, is unnecessary to this Court’s decision. Such
alternate theory, regardless of its merit, is extraneous and immaterial in light of our
conclusion that the circuit court was correct in granting the military service credit based upon
Respondent Wood’s actual military service record.
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C. Board’s Lack of Articulation of its Interpretation
The Board also maintains that the circuit court erred by concluding that the
Board had failed to properly articulate its interpretation of West Virginia Code § 5-10-15.
The Board premises this assignment of error upon the circuit court’s observation that the
Board could have enacted a legislative rule explaining the basis for its determinations
regarding the statutory phrase, “period of armed conflict.” This Court finds this assignment
of error meritless. The circuit court, while suggesting that the issues could have been more
efficiently explained and resolved through enactment of a legislative rule, certainly did not
base its conclusions of law or awards of military service credit upon any failure of the Board
to enact such rules. We find no error in the circuit court’s observations on this issue and no
effect upon the ultimate ruling made by the circuit court.
D. Prior Inconsistent Decisions
As its final assignment of error, the Board contends that the circuit court erred
in granting relief to the respondents based on prior Board and circuit court decisions
involving other individuals seeking military service credit. Again, this Court finds no merit
in the Board’s arguments in this regard. While the circuit court evaluated prior military
service credit decisions for purposes of ascertaining the appropriate application of the
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guiding statute, the circuit court did not rely upon those prior decisions as conclusively
settling the issues or binding the Board to a certain statutory application.12
IV. Conclusion
Based upon the foregoing, this Court finds that the Circuit Court of Kanawha
County did not err in holding that the respondents are entitled to the military service credit
as awarded in the circuit court’s order of March 20, 2013. That order is consequently
affirmed.
Affirmed
12
In a 2009 decision in the Circuit Court of Kanawha County regarding military
service credit eligibility for Mr. Daniel Olthaus, the circuit court granted five years of
military service credit based upon the military campaigns listed in the VFW manual. The
Board contends that it did not appeal that decision because it became moot when it was
determined that Mr. Olthaus lacked the requisite number of years of state service to retire.
In another prior decision, the Board granted military service credit to Mr. Archie Hubbard
in 2008 based on Mr. Hubbard’s military service during the United States’ involvement in
the Grenada military engagement. In addressing that prior decision, the Board essentially
maintains that it should be free to alter its interpretation and application of the statutory
requirements and should not be bound by the decision it made in Mr. Hubbard’s situation.
While those prior cases are illustrative of previous inconsistent interpretations, the circuit
court did not find them binding or dispositive of the present case. Thus, any argument on this
issue is inconsequential at this juncture.
The Board also expresses a general concern regarding costs of administering the
retirement system if military service credit is permitted for the military engagements
identified in the VFW manual. This Court finds such policy arguments to be more
appropriately addressed to the Legislature. This Court’s obligation is to interpret and apply
the provisions of an ambiguous statute, not to address the financial or public policy
underpinnings of such statutory provisions.
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