Commonwealth v. Pennsylvania State Troopers Ass'n

Chief Justice CASTILLE,

dissenting.

I join the dissenting opinion by Mr. Justice Saylor. I write separately to discuss an additional point of disagreement with the Opinion Announcing the Judgment of the Court (“OAJC”).

I believe the OAJC has not persuasively distinguished our decision in Kirsch v. Public School Employees’ Retirement *978Board, 603 Pa. 439, 985 A.2d 671 (2009). Indeed, in my view, Kirsch controls, and directs that we affirm the Commonwealth Court’s decision vacating the “union leave” provision of the arbitration award in this case.

In Kirsch, school district employees on “union leave” received more compensation while working privately for the union than they would have received had they continued as public employees in their regular school district positions. When these employees filed retirement applications, the Public School Employees’ Retirement System (“PSERS”) used the standard compensation they would have received as regular school district employees — not the enhanced private union pay — for purposes of determining the employees’ final average salaries for retirement benefit calculations. PSERS rejected the employees’ challenge to this decision, the Commonwealth Court affirmed and, ultimately, this Court agreed that the on-leave employees were not entitled to enhancement of their public retirement benefits as a result of the enhanced pay they received for their private union work. Id. at 672 (“[T]he statute allows only the salary corresponding with the position held at the school district during the approved leave [to] be credited to the retiree’s retirement earnings; inclusion of increased, union-provided compensation artificially and im-permissibly enhances or inflates retirement benefits under the Retirement Code....”).

In affirming, we considered the language in 24 Pa.C.S. § 8102 which requires the school district employer to “fully compensate” its on-leave employees “as if [they] were in full-time active service” with the school district.1 985 A.2d at 675. We concluded that it was “clear the definition concerns not only whether an employee qualifies for leave, but also the amount of compensation and retirement credit to be received while serving outside the regular position on approved leave.” Id. We further stated that nothing in the statutory scheme “suggests the General Assembly meant for union employees to receive greater retirement benefits than other union members who chose to stay in their school positions or are not given the opportunity to work for the union.” Id. at 677. Thus, in Kirsch, we viewed the statutory language “as if he were in full-time service” to provide both a floor and a ceiling for the amount of compensation that could properly be credited to the on-leave employee for purposes of retirement benefit calculations. We specifically held that the “union-approved salary, which exceeded the School District standard salary, may appropriately be excluded.... [U]nder the statute, only the salary corresponding with the position held at the school district during the approved leave may be credited to retirement earnings.” Id. at 678 (footnote omitted). The holding could not be otherwise, given the plain language of the statute and the fact that we are speaking of public funds here; the private entity may enhance pay of the on-leave member as it feels appropriate, but the public is not obliged to recompense an artificially enhanced retirement benefit.

The very same language that created a ceiling for the salaries of on-leave public employees for the purposes of retirement benefit calculations in Kirsch appears in the statute before us in this case. Section 5302(b) of the State Employees’ Retire*979ment Code, which applies to the state troopers here, provides that an on-leave state employee shall be compensated “as if he were in full-time active service.” 71 Pa.C.S. § 5802(b)(2).2 The OAJC attempts to distinguish the meaning of the phrase in Section 5302(b)(2) from the meaning of the very same qualifier in 24 Pa.C.S. § 8102 as interpreted in Kirsch, but I am unpersuaded. Together with Justice Saylor’s explanation of how the OAJC has severed the instant salary question from its inevitable impact on retirement benefits, Kirsch compels me to conclude that the arbitrator’s award regarding payment during union leave contravenes 71 Pa.C.S. § 5302(b)(2), and is therefore illegal. Accordingly, I cannot join the decision to uphold it.

Justice EAKIN joins this opinion.

. Section 8102 specifically requires the school district employer to “fully compensate the member, including but not limited to, salary, wages, pension and retirement contributions and benefits, other benefits and seniority, as if he were in full-time active service....'' 24 Pa.C.S. § 8102.

. Just like the statute at issue in Kirsch, Section 5302(b)(2) provides that "the employer shall fully compensate the member, including but not limited to, salary, wages, pension and retirement contributions and benefits, other benefits and seniority, as if he were in full-time active service ...” 71 Pa.C.S. § 5302(b)(2). See Kirsch, supra at 675 (quoting from 24 Pa.C.S. § 8102).