Johnson v. Utah State Retirement Board

HOWE, Associate Chief Justice

(dissenting):

I dissent. I agree that the State cannot eliminate or reduce the amount of a retiree’s benefit after retirement because his right to that amount has become vested by virtue of his years of service. Driggs v. Utah Teachers Retirement Bd., 105 Utah 417, 142 P.2d 657 (1943). However, I would not under the facts of the instant case extend the concept of vested rights to eligibility for reemployment in public employment after an employee retires. The Utah Public Safety Retirement Act, under which the plaintiffs earned their right to retirement, has always provided since its enactment in 1969 that a retired member may not be reemployed full time in a position covered by that system without having his retirement either cancelled or suspended for the duration of such employment. Utah Code Ann. § 49-4-801 (1981, Supp. 1987). Thus, during the years that the plaintiffs rendered their service to their public employer, drawing a salary and also receiving retirement was specifically prohibited. When the legislature amended the Retirement Act in 1983 so as to permit double payment to persons in the plaintiffs’ positions, it was a gratuitous act and conferred something which the plaintiffs had not earned or relied upon in rendering their service. They had already qualified for (but had not applied for) their retirement before the 1983 amendment became law.

In three prior cases decided by this Court, Schofield v. Zion’s Co-op Mercantile Institution, 85 Utah 281, 39 P.2d 342, 96 A.L.R. 1083 (1934), Driggs v. Utah Teachers Retirement Bd., 105 Utah 417, 142 P.2d 657 (1943), and Newcomb v. Ogden City Public School Teachers’ Retirement Comm’n, 121 Utah 503, 243 P.2d 941 (1952), we held that vested rights to a pension arise when an employer makes an offer to an employee that if the latter will faithfully work for a required number of years and make contributions to a retirement fund from his salary, he will receive a pension after retiring, and the employee accepts that offer by fulfilling all of its conditions. We explained that a contract comes into being, binding the employer to perform as promised. In the instant case, there was no promise of post-retirement employment extended to the employees while they were earning their rights to their pensions. In fact, such employment was expressly prohibited by statute. The majority does violence to the contract concept in the instant case and exalts to a vested right something which was not part of the employer’s offer during the years when the plaintiffs rendered their services.

It is true that the passage of the 1983 amendment may have induced the plaintiffs to “retire,” but in doing so, they gave up nothing. They kept their employment with its full salary and also received full retirement benefits. After the repeal of the 1983 amendment in 1985, they were given the option to keep either their employment or their retirement, but not both. They were put back to their original status. No damage was done them, and they were not asked to repay any money received during the two years when they drew both a salary and retirement benefits.

The majority cites no case law to support its position that a retiree can have a vested *98right to reenter public employment. The only case relied upon by the plaintiffs, State ex rel. McLean v. Retirement Bd., 161 Ohio St. 327, 119 N.E.2d 70 (1954), involved a retiree who earned his retirement under statutes which placed no restriction on post-retirement employment. That is not true in the instant case, as I have pointed out.

It is quite common for public retirement systems to place some restriction on retirees reentering public employment covered by the system. See Utah Code Ann. § 49-2-801 (1981, Supp.1987) of the Public Employees’ Retirement Act (covering most state employees), which provides that a retiree who reenters public employment covered by that Act may earn only up to the amount of exempt earnings permitted by the federal social security laws and that if a retiree receives compensation in a calendar year in excess of that limitation, his retirement payments shall be suspended during the remainder of the calendar year. The broad holding of the majority which extends vested rights to continue in or reenter public employment after retirement may well hamper the legislature from increasing or expanding the limitation should it ever choose to do so.