Cochrane v. City of Charlotte

GREENE, Judge,

concurring in the result.

I agree with the majority’s conclusion that Cochrane did not retire under a service retirement pursuant to N.C. Gen. Stat. §§ 128-27(a) and 135-5(a) and is thus ineligible for the special separation allowance authorized by N.C. Gen. Stat. §§ 143-166.41 and 143-166.42 but write separately to address two aspects of the majority’s analysis.

Section 143-166.41(a) provides that “every sworn law-enforcement officer . . . shall receive, beginning on the last day of the month in which he retires on a basic service retirement under the provisions of G.S. 135-5(a) or G.S. 143-166(y), an annual separation *629allowance [(special separation allowance)],” provided the law-enforcement officer shall:

(1) [h]ave (i) completed 30 or more years of creditable service or, (ii) have attained 55 years of age and completed five or more years of creditable service-, and
(3) [h]ave completed at least five years of continuous service as a law enforcement officer . . . immediately preceding a service retirement.

N.C.G.S. § 143-166.41 (a) (1999) (emphasis added).

Cochrane argues that even if there is a distinction between a disability and a service retirement, N.C. Gen. Stat. § 128-27(e)(6) operates to transform a law-enforcement officer’s disability retirement into a service retirement. I agree. According to the statute, “a beneficiary in receipt of a disability retirement allowance until the earliest date on which he would have qualified for an unreduced service retirement allowance shall thereafter . . . (iii) be considered a beneficiary in receipt of a service retirement allowance.” N.C.G.S. § 128-27(e)(6) (1999). “[A] beneficiary in receipt of a disability retirement allowance,” id., is, as the majority implicitly concedes, a beneficiary of a disability retirement plan. Likewise, “a beneficiary in receipt of a service retirement allowance,” id., must necessarily be a beneficiary of a service retirement plan. Thus, a disability retirement is transformed into a service retirement when the requisite qualifications are met, as occurred in this case in respect to Cochrane’s disability retirement.

Cochrane further contends a person on disability retirement can accrue creditable service. “[C]reditable service” is defined as “the service for which credit is allowed under the retirement system of which the officer is a member.” N.C.G.S. § 143-166.41(b) (1999). N.C. Gen. Stat. § 143-166(y), which was used to calculate Cochrane’s disability retirement income, gives credit for “the number of years of creditable service which he would have had if he had continued in service until his 55th birthday.” N.C.G.S. § 143-166(y) (1981) (repealed 1985). Thus, “creditable service,” in the context of section 143-166.41, includes actual service as well as service a law-enforcement officer could have performed but for his disability and can be accrued during a person’s disability retirement. Assuming Cochrane was a member of the disability retirement system at the time his dis*630ability benefits were calculated,1 the time spent on disability retirement, until Cochrane’s 55th birthday, counts as creditable service under section 143-166.41.

Thus, I believe, Cochrane met his burden of showing that he is in receipt of a service retirement and accrued creditable service during his years on disability retirement. He nevertheless fails to overcome the requirement that a law-enforcement officer seeking the special separation allowance must “retire[] on a basic service retirement.” N.C.G.S. § 143-166.41(a) (1999) (emphasis added). To retire means to “withdraw from one’s occupation.” American Heritage College Dictionary 1165 (3d ed. 1993). For Cochrane, this occurred when he assumed a disability retirement, not when his disability retirement was transformed into a service retirement. Consequently, for this reason, I agree with the majority that Cochrane is not eligible for the special separation allowance.

. The majority holds that once Cochrane’s disability retirement commenced, his status changed from a member of the retirement system to a beneficiary.